Summary: The Council was at fault for refusing home to school transport for Y, to the only school named in his Education, Health and Care plan. It has since offered to provide the transport. It will make changes to its processes and review the information it gives to families.

The complaint

1. Ms X complained the Council refused home to school transport in September 2020 for her son, Y, to school A, which was named in his Education, Health and Care plan. This made it difficult for her to keep Y at school A where he was settled.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. Ms X complained about the Council’s refusal to provide home to school transport in September 2020, following her house move. The documents provided showed the Council had previously refused an application for home to school transport in September 2019 when her son, Y, transferred to secondary school. We would not usually consider events or decisions more than 12 months before the complaint to us but I have exercised discretion to do so in this case because the Council made a decision on the same grounds in September 2019.
6. 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

7. I considered:
• the information provided by Ms X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies
8. Ms X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care Plans (EHC Plan)

9. The purpose of an EHC plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC plan is needed and for preparing the EHC plan. The EHC plan should set out the specific support that is to be provided. It will usually name either a specific school or a type of school that can meet the child’s needs. The EHC plan will usually be reviewed annually.
10. If the EHC plan names a school without conditions and it is the only school named then it becomes the suitable school for transport purposes. The council must provide free school transport to that school if it decides the child is eligible according to its school transport policy.
11. If the council considers another, closer school is also able to meet the child’s needs and decides the cost of transport to the parents’ preferred school costs too much it must then either change the EHC plan to:
• Name the further school as parental preference but state in the EHC plan that there is a closer suitable school and so the parent will be responsible for school transport or,
• Name the closer school only.
12. Changing the child’s EHC plan in this way gives the parents the opportunity to appeal to the SEND Tribunal to have their preference named as the only suitable school.

School transport appeals

13. Councils should have complaints and appeals procedures for dealing with school transport issues. They should publish the details on their website every year.  In the past, local authorities were left to determine their own appeals procedures, and they varied widely. Statutory guidance issued in 2014 sets out a recommended two-stage procedure:
• Stage 1: review by a senior officer
• Stage 2: review by an independent appeal panel.

Councils should make it clear that there is a right to complain further to the LGSCO. (Home-to-school travel and transport statutory guidance (2014))

14. We expect councils to follow the two-stage process unless they have good reason to depart from it.

What happened

15. Y lives with his mother, Ms X. He has an Education, Health and Care (EHC) plan dated March 2019. This was prepared in advance of his transition to secondary school in September 2019. It names school A in section I of the plan. It does not state this was parental preference or that another closer school is suitable.
16. Ms X applied for home to school transport in September 2019, which was refused on the grounds that Y was not attending the closest school to his home. Ms X appealed. The Council considered her appeal at stage 1 and upheld the decision to refuse. It said there were two schools closer to Y’s home and its Special Educational Needs and Disabilities (SEND) team had advised that Y’s needs could be met in any mainstream school. There were no other grounds that meant Y would not be eligible for transport. There was nothing in the stage 1 decision letter to indicate there was a further stage in the process, nor that the process was exhausted but she could complain to us.
17. Ms X moved house to be closer to her family support network. She made a fresh application for home to school transport, which was refused in September 2020 because Y was not attending the closest school to his home.
18. Again, Ms X appealed. She explained her reasons:
• for moving house;
• why it was not appropriate for Y to move to another school nearer to his home; and
• the support Y would need if he had to travel to school by public transport.

She provided a letter from school A in support of her appeal, which made reference to his special educational needs (SEN) as set out in his EHC plan.

19. The Council considered her appeal at stage 1 again, but upheld its original decision for the same reasons as its earlier decision in 2019. Again, there were no other grounds for refusing transport and the review decision letter did not explain whether there was a further stage to the appeal process.
20. After Ms X complained to us, the Council reconsidered its position. It said it would now provide free home to school transport and would reimburse Ms X for the costs she incurred for transport, back-dated to the date Ms X moved house. Ms X was happy the Council decided to provide the transport, which she said would support her to keep Y in a settled environment. She said it did not need to refund her for travel costs since the house move.
21. In response to my enquiries, the Council said:
• when it assessed Y’s SEN, it considered his needs could be met in any mainstream school in its area;
• Ms X expressed a preference for school A and it told Ms X at the time that if it named school A, she would be responsible for any transport costs. I have not seen evidence it told her this, although I have seen an internal email from the SEN team to the school transport team, which says it had given this advice;
• it accepted that section I of Y’s EHC plan was not sufficiently clear because it did not state school A was his parent’s preferred placement, and that it considered a nearer school could meet his needs, nor did it state that any extra transport costs were the responsibility of the family;
• it had reviewed the case after the complaint to us and had decided to agree the transport because it accepted it was not appropriate for Y to move to another school; and
• it had checked that no other families had been affected by the problem that arose in this case.

It said its offer to reimburse Ms X from the date she moved house remained open to her.

22. In addition, the Council said it would:
• ensure that in all new EHC plans it would make clear whether the school named was the parent’s preference and, if there was a nearer suitable school, would clarify that the family was responsible for any extra transport costs;
• ensure staff are aware of the need to make this clear in the EHC plan through its workplace development programme for existing staff and its induction programme for new staff; and
• review how transport arrangements for young people with SEN and disabilities are considered, revise its Local Offer and review information for families moving into its area on its website.
23. In relation to the appeal process, the Council said Ms X had asked it to review its decision at stage 1 of its process, which it had done in 2019 and 2020. It said on neither occasion did Ms X ask it to consider the decision at stage 2.

My findings

24. Given that the Council named school A in Y’s EHC plan without stating this was his parents’ preference or that the Council considered another nearer school could meet his needs, this was the nearest suitable school. Therefore, it was fault for the Council to refuse to provide home to school transport in 2019 and again in 2020 on the grounds that he was not attending the nearest suitable school.
25. The Council has accepted the position was not clear and has offered to take appropriate action to prevent a recurrence of this problem, which I welcome. It has also checked that no other families were affected by the same problem.
26. After Ms X complained to us, the Council reviewed its position and agreed to provide the transport. It also offered to reimburse Ms X for her costs from the date she moved house, which Ms X declined. I have considered whether this was a sufficient remedy for Ms X. I note Mrs X was clear that she was satisfied with the Council’s decision to offer transport and was not seeking any further remedy. On this basis, I have not recommended a further remedy for her.
27. In relation to the appeal process, the Council said Ms X did not ask it to consider the decision at stage 2 of its process. Stage 2 would usually be an independent panel. However, there is nothing in the stage 1 decision letter either in 2019 or 2020, that indicates there is a further stage if the applicant remains unhappy with the decision so it is unclear how they would know to ask for this. I would expect the Council to make it clear if there is a further stage to its process and how to access that. The failure to do so was fault.
28. I also note the Council did not signpost Ms X to us, which may have been because she had not reached the end of its process. I do not consider this warrants a further finding of fault, particularly given the fact that Ms X did not suffer an injustice as she was able to complain to us.

Agreed action

29. The Council will, within three months of the date of the final decision:
• ensure that in all new and amended EHC plans it makes clear whether the school named was the parent’s preference and, if there is a nearer suitable school, clarify that the family is responsible for any extra transport costs;
• ensure staff are aware of the need to make this clear in the EHC plan through appropriate training;
• review how transport arrangements for young people with SEN and disabilities are considered, review the information it provides for families;
• review its school transport appeals process and the information it provides to applicants to ensure they are aware they can ask for a stage 1 and stage 2 review of school transport decisions in line with statutory guidance.

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Final decision

30. I have completed my investigation. I have found fault leading to personal injustice. The personal injustice has been remedied already and the Council agreed to take action to prevent recurrence of the fault identified.

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Investigator's decision on behalf of the Ombudsman