Hampshire County Council (20 003 245)

Category : Education > School transport

Decision : Upheld

Decision date : 14 May 2021

The Ombudsman's final decision:

Summary: Mrs Y complains the Council incorrectly refused her application for home to school travel assistance for her son, B, to attend the school named in his Education, Health and Care Plan. The Ombudsman finds the Council at fault. The Council’s failure to properly apply the relevant law when refusing Mrs Y’s application caused her frustration and uncertainty. To remedy the injustice caused to Mrs Y, the Council has agreed to apologise, make a payment to Mrs Y and consider her application again.

The complaint

  1. The complainant, who I shall refer to here as Mrs Y, complains that the Council incorrectly refused her application for home to school travel assistance for her son, B, to attend the school named in his Education, Health and Care Plan.
  2. Mrs Y says the Councils actions caused injustice to her and her husband because they are expected to transport their son to and from school without assistance.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  3. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I considered the information and documents provided by Mrs Y and the Council. I spoke to Mrs Y about her complaint.
  2. Mrs Y and the Council have had an opportunity to comment on my draft decision. I considered all comments before making a final decision.
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Legal and administrative background

The law and the statutory guidance about school transport

  1. Under the Education Act 1996 local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
  2. ‘Eligible children’ are defined in Schedule 35B of the 1996 Act. They include:
  • children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and
  • children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
  1. Section 508B(1) of the 1996 Act states that “A [local authority] in England must make, in the case of an eligible child in the authority's area to whom subsection 508B(2) applies, such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made and provided free of charge in relation to the child”. Section 508B(2) states that transport must be provided to a child where no other free travel arrangements have been put in place by anyone else or where transport is provided but it is not suitable.
  2. The relevant ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have’. ‘Qualifying schools’ include community special schools.

Transport for children with special educational needs

  1. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and the necessary arrangements to meet them. The EHC Plan is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school (Section I). Only the SEND Tribunal can do this.
  2. If a school is named in Section I of an EHC Plan, it does not automatically mean that transport will be provided. The child still has to come into one of the categories of eligible pupil above. Provided that any relevant conditions are met, and the child is attending the “nearest suitable school”, they will qualify for free transport.
  3. However, where the parents’ preferred school is further away than the school the Council considers the most suitable, it is entitled to name the closer school if placing the child at the parental choice of school would be an unreasonable use of public expenditure. In making this decision the council must include the cost of transport to both schools in the comparison.
  4. The council could agree to name the parents’ preferred school on the condition that the parent agrees to meet the transport costs. But, in these cases the council must name both schools in Section I of the EHC Plan and specify the condition that the parents will pay for the transport. The parents’ preferred school named in Section I would then be regarded as “parental preference”.
  5. If Section I only names one school without conditions, that school is considered the nearest suitable school even if it is further away. This is because the council has not made arrangements for the child to attend a closer school.
  6. If the council considers both schools are suitable, then the Council must name the parents’ preferred school in Section I of the EHC Plan unless the cost of transport to the parents’ choice of school is significantly higher.
  7. These principles were established in the case of S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.

What happened

  1. Mrs Y’s son, B, has an Education, Health and Care (EHC) Plan. He was due to transition to secondary school in September 2020.
  2. In January 2020, the Council sent Mrs Y a copy of B’s amended EHC Plan. In Section I of the Plan, the Council named School G as the secondary school B would attend from September. It said B would attend School G on the condition that “responsibility for arranging transport to and from school and meeting the full cost is borne by the parents”.
  3. In April, School G applied for B to receive assistance with school transport costs.
  4. The Council refused School G’s application. It said that although B was eligible based on distance to the school, School G was named in Section I because of parental preference and on the condition his parents transported B to the school.
  5. Mrs Y applied to the Council for discretionary assistance with home to school transport costs.
  6. The Council refused Mrs Y’s application. It said:
  • B was not eligible for transport assistance because School G was not the nearest suitable school. It said any concerns about the suitability decision should be sent to its Special Educational Needs (SEN) department; and
  • after considering the family’s circumstances, an exception to its policy would not be made in B’s case.
  1. Mrs Y appealed the Council’s decision.
  2. In June, an Independent Appeal Panel considered Mrs Y’s appeal. The Panel refused the appeal.
  3. The Council wrote to Mrs Y to explain the Panel’s decision. It said:
  • The appeal was considered on written submissions only based on the COVID-19 Regulations 2020;
  • at the request of Mrs Y, the Panel looked at whether B was either entitled for assistance under the Council’s Home to School Transport policy or should be granted discretionary assistance as an exception to this;
  • the Panel decided B was not entitled to assistance as he would not be attending the nearest suitable school for him, as identified by the Council’s SEN department. School G was named in B’s EHC Pan, but the SEN department had identified School H as the nearest suitable school; and
  • the Panel considered the family’s circumstances, but also found that these did not provide sufficient reasons for awarding discretionary assistance.
  1. In August, Mrs Y complained to the Ombudsman about the Panel’s decision.

Analysis – was there fault by the Council causing injustice

  1. Mrs Y complains that the Council incorrectly refused her application for home to school travel assistance for her son, B, to attend the school named in his Education, Health and Care (EHC) Plan.
  2. I have considered B’s EHC Plan. The Council has only named School G in Section I. It says this is considered parental preference as School H is the nearest suitable school. In response to questions that I raised, the Council said it made it clear to Mrs Y during discussions about B’s transition to secondary school that School H was the nearest suitable school.
  3. However, the Council failed to name School H in B’s Plan. In line with paragraph 18 above, this is fault. By failing to name School H, the Council has not made arrangements for B to attend this school. This caused Mrs Y uncertainty and frustration because the Council, nevertheless, placed a condition against naming School G in B’s EHC Plan.
  4. The case of S and another v Dudley Metropolitan Borough Council (paragraph 20 above refers) confirmed the three steps the Council should have considered when deciding whether B was entitled to free transport to School G. The three steps the Council should have followed were:
      1. decide whether Schools G and H were both in fact suitable, and check if there was a place available at School H which the Council said was the nearest suitable school;
      2. if both schools were suitable, the Council should have then calculated the cost of transporting B to each of the schools; and
      3. decide whether the cost of transporting B to School G was significantly more expensive than School H to the extent it represented an inefficient use of resources. If the cost difference is not significant, then the Council must name School G unconditionally in B’s Plan.
  5. In response to questions that I raised, the Council said that, in its letter to Mrs Y from December 2019 attaching a draft amended EHC Plan, it explained that that if Mrs Y expressed a preference for another provider which is further from her home, the Council would consider this on the understanding that Mrs Y would be responsible for transport arrangements and costs. This is fault as the Council’s decision here does not follow the three-step process established in S and another v Dudley Metropolitan Borough Council (see paragraph 34 above). The Council should have completed this process before finalising B’s EHC Plan.
  6. In Mrs Y’s appeal to the Independent Appeal Panel, she said the Council had failed:
  • to consider whether providing free transport to School G would be incompatible with the “efficient use of resources” (as required by Section 39 of the Children and Families Act 2014); and
  • to apply the three-step process in S and another v Dudley Metropolitan Borough Council.
  1. I have considered the Independent Appeal Panel’s decision and the accompanying Clerk’s notes. The Clerk’s notes show the Panel decided it did not have the power to consider the applicability of S and another v Dudley Metropolitan Borough Council to Mrs Y’s appeal because it was not able to make decisions about which schools should be named in an EHC Plan; only the SEND Tribunal could so this. The Clerk’s notes show the Panel thought Mrs Y could appeal the content of Section I to the SEND Tribunal. However, this route was not an option to Mrs Y because only School G was named in B’s EHC Plan.
  2. The Panel said it only had the power to decide whether the Council’s decision complied with its Home to School Transport Entitlement Policy. It decided the Council’s decision met with its Policy because the Panel agreed the Council had explained to Mrs Y that she would be expected to meet the transport costs to School G, which the Council had deemed to be her “parental preference”.
  3. The Independent Appeal Panel failed to apply the three-step process established in S and another v Dudley Metropolitan Borough Council. This is fault. We would expect Independent Appeal Panels to properly consider and apply the law that is relevant to the appeal under consideration, which includes established case law.
  4. This fault caused Mrs Y injustice. She experienced frustration and uncertainty because the Independent Appeal Panel made a decision that did not properly apply the law that she had referred to in her appeal documents.

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Agreed action

  1. Within four weeks of my final decision, the Council has agreed to:
      1. apologise to Mrs Y in writing;
      2. make a payment to Mrs Y of £150 for the avoidable frustration and uncertainty she experienced because of the Council and Independent Appeal Panel failing to correctly apply the law. This recommended payment is in line with the Ombudsman’s published guidance on remedies; and,
      3. consider Mrs Y’s application again and provide her with a decision that is in line with the law about whether B is entitled to free transport to School G. If the Council still refuses Mrs Y’s application, it must ensure the Independent Appeal Panel that considers any appeal applies the law and understands the principles established in S and another v Dudley Metropolitan Borough Council (paragraphs 15 to 20, and 34 above refer).
  2. In response to my draft decision, the Council said it agreed, within three months of my final decision, to review its Home to School Transport Entitlement Policy to ensure it complies with the law. However, it said the principles established in S and another v Dudley Metropolitan Borough Council should be properly considered by the Council at the time of naming school placements in Section I of an Education, Health and Care Plan. The Council has, therefore, said it will consider the application of this caselaw during its review of its standard operating procedures for its Special Educational Needs service. I am satisfied with the Council’s response here.
  3. Within three months of my final decision, the Council has also agreed to make the following service improvement:
  • review similar decisions made between the period of January and June 2020 to check whether any other applications had been similarly affected. If so, the Council should consider the relevant applications again and make a decision that complies with the law, including the principles established in S and another v Dudley Metropolitan Borough Council (paragraphs 15 to 20, and 34 above refer).
  1. The Ombudsman will need to see evidence that these actions have been completed.

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Final decision

  1. I have completed my investigation. I have decided to uphold Mrs Y’s complaint because there is fault causing injustice. The Council has agreed to the above recommendations as a suitable way of remedying the injustice.

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Investigator's decision on behalf of the Ombudsman

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