Summary: There was fault in the way the Council considered an application for home to school transport when a child with an Education, Health and Care plan transferred to secondary school. This caused inconvenience and financial loss to the family. Recommendations for an apology, reimbursement of expenses, a time and trouble payment and service improvements are made. The complaint is upheld.

The complaint

1. Ms X complains the Council failed to apply the correct legal test for her son (who has an Education, Health and Care (EHC) plan) when it refused to fund school transport when he transferred to secondary school. Ms X says as a result the family have endured financial hardship, inconvenience and time and trouble getting the complaint resolved.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. 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.
6. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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

9. I have considered information provided by Ms X and the Council including:
• The EHC plan
• The complaint correspondence
• The Council’s response to my enquiries
• The Council’s home to school transport policy.
10. I have considered relevant legislation and guidance including:
• The Education Act 1996
• The Children and Families Act 2014
• Statutory Guidance: ‘Home to school travel and transport guidance’, July 2014 (‘The Guidance’).
• Statutory Guidance: ‘Special educational needs and disability code of practice: 0 to 25 years’, January 2015 (‘The Code’)
11. I have considered guidance issued by the Ombudsman:
• Guidance on Remedies
• Focus Report: ‘All on Board? Navigating school transport issues’, 2017
• Effective Complaint Handling for Local Authorities, 2020
• Principles of Good Administrative Practice, 2018.
12. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

Relevant law and guidance

14. Sections 508B and 508C of the Education Act 1996 make provision for councils to ensure that suitable travel arrangements are made, where necessary, to facilitate the attendance of eligible children at school. Eligible children are defined in Schedule 35B of the 1996 Act. Councils have a statutory duty to provide free home to school transport for pupils aged between 8 and 16 when they live more than 3 miles (the statutory walking distance) from their nearest suitable school.
15. Where it is necessary for special educational provision to be made in accordance with an Education, Health and Care (EHC) Plan the Council must prepare and issue a finalised plan. Where a child is to be educated in a school, section I of the Plan (placement) must name the school the child will attend.
16. The child’s parent or the young person has the right to request a particular maintained school be named in their EHC plan (The Code paragraph 9.78) and the local authority must comply with that preference and name the maintained school in the EHC plan unless:
• it would be unsuitable for the age, ability, aptitude or special educational needs (SEN) of the child, or
• the attendance of the child there would be incompatible with the efficient education of others, or the efficient use of resources.
17. A parental preference school might be further away from their home than the nearest school that can meet the child’s needs. In such a case a council can name the nearer school if it considers it to be appropriate for meeting the child’s special educational needs (SEN). If the parent prefers the school that is further away, the council may agree to name this but is able to ask the parents to provide some or all of the transport funding (The Code 9.214).
18. The situation where there are two competing schools (the parental preference and the Council’s preference), and a child with an EHC plan is entitled to free home to school transport, was considered by the SEN Upper Tribunal in Dudley v Shurvington [2012] EWCA. The Upper Tribunal found that councils should consider whether transporting the child to the parent’s choice of a further away school would be compatible with the efficient use of resources. This is known as ‘the Dudley test’. A council should first determine the cost of providing the child with free travel to each of the two schools. It should then decide whether the additional cost of providing travel to the parent’s choice is compatible with the efficient use of resources. In doing so, it should have regard to the educational benefits and other advantages that the school will provide for the child.
19. If a council decides the parent’s choice is compatible with the efficient use of resources, then it should name only this school on the EHC plan. If a council decides the additional cost is incompatible with the efficient use of resources, it may name both schools in the EHC plan on the condition the parents pay the cost of transport to their preferred school.
20. Where a parent disagrees that both schools are suitable and considers only their choice can meet the child’s needs, or, where a parent considers that the cost including transport to their preferred school is not an inefficient use of resources, they have a right of appeal to the SEND Tribunal. The Tribunal cannot determine a child’s eligibility for school transport, but it can take into account the whole cost of the placement, including transport, when deciding if the parent’s choice of school is compatible with the efficient use of public resources.
21. The Guidance says councils must have in place both complaints and appeal procedures for parents to follow should they have cause for complaint about the service, or wish to appeal about the eligibility of their child for travel support. The Guidance recommends councils use a two stage appeal process; stage one a review by a senior officer and stage two a review by an independent panel.
22. The Guidance requires the Council to provide written decisions setting out:
• how the review was conducted,
• what information was sought from other departments or which agencies were consulted,
• what factors were considered and the rationale for the decision reached.
23. The Ombudsman’s guidance on effective complaint handling says that when investigating a complaint, councils should act fairly and proportionately, explaining their thinking and basing their decisions on sound evidence. We expect robust oversight of complaint handling and learning from complaints to be at the centre of councils’ risk management and audit functions. A complaint investigation should compare what has happened (by obtaining information from the complainant, staff and case records) against what should have happened (considering the law, guidance and local policy). Investigators should obtain enough information to ensure that their decision will stand up to scrutiny.

Chronology of events

24. Ms X’s son has special educational needs. He transferred to secondary school in September 2019 and his EHC plan was amended in February 2019 to name his next placement (School A).
25. Ms X says School A was the closest mainstream school that she considered met her son’s SEN and academic needs. The Council’s Statutory Assessment and Review Team (StART) consulted School A and named it on the Plan. The Council did not consult any other schools. School A was the only school named.
26. School A is outside the statutory walking distance from Ms X’s home.
27. Ms X applied for school transport in May 2019.
28. The transport team asked the StART team if the school was named on the EHC plan as parental preference or whether it was named as the nearest suitable school. The StART team replied that the school was named as parental preference as it was not the nearest school to Ms X’s home (this was School B). The transport team then refused the application based on this advice.
29. In August 2019 Ms X submitted an appeal for transport assistance.
30. In September 2019 an Officer Review Panel dismissed the appeal on the basis Ms X’s son was not attending his nearest suitable school (School B).
31. In October 2019 Ms X asked for the appeal to be escalated to Stage 2. A Stage 2 appeal hearing with Members was heard in November and again the appeal was dismissed on the same basis as before.
32. In November 2020 Ms X brought her complaint to the Ombudsman. Ms X told us that she had assumed as her appeals were rejected the Council must be correct on the law but a charity specialising in SEN transport cases had later advised her the Council had acted unlawfully and that her son was entitled to free home to school transport. Ms X said it was only when they received this advice she realised that they had a valid complaint and this was why she had not complained to us sooner.
33. Ms X wanted the Council to:
• apologise to her son and both parents for unlawfully denying transport;
• reimburse costs dating back to when the application was denied;
• review other cases where applications were denied on the basis of parental preference when only one school was named on the EHC plan and reimburse other families similarly affected;
• review and amend the Council’s transport policy;
• ensure staff undertook training to correctly understand the law.
34. The Council’s transport policy (May 2019) states that for a child with an EHC plan the nearest qualifying school is the nearest school that can meet their needs. The policy says that where a school is named on the Plan (that is as the only school) this does not automatically make it the qualifying school for transport as it may be named as a parental preference. The policy says where a parent chooses a different school than the nearest school that can meet needs, they will not qualify for travel assistance.
35. I made enquiries of the Council in March 2021 including asking for evidence the Council had properly applied the Dudley test and carried out a comparison of costs to School A and School B.
36. The Council told me that if parental preference was for a setting other than the nearest mainstream school it will not fund transport costs. It says ‘it appears that parents were not made aware of this and the StART Team were not explicit about this in Section I of the EHC plan’. The Council acknowledged it had not applied a cost comparison between Schools A and B.
37. In response to my enquiries the Council carried out a review. It found that the StART team did not formally consult School B and therefore could not have concluded that it could also meet Ms X’s son’s needs. The Council acknowledged the team should have consulted the local school and that it had given incorrect information to the Transport team that School A was named as parental preference.
38. The Council acknowledged that the transport application was wrongly assessed and the Council should have assessed the application with School A as the nearest appropriate school.
39. The Council has told me it has now reconsidered the application and awarded transport. Ms X indicated she would prefer a personal travel budget than to have transport provided. The Council has agreed to this and has backdated the budget to September 2019 (taking into account periods when the school was closed due to Covid-19). The Council says it will pay Ms X £3334.50 for past mileage. The Council has also offered a payment of £300 in recognition of the inconvenience the error has caused.
40. The Council told me it had checked other applications from 2015 onwards and found similar errors in another seven cases. It says it has contacted the families affected to reassess applications and has put in place a new process for the StART team to prevent a recurrence of the same fault.

Analysis

Jurisdiction

41. I have exercised discretion to consider the complaint although it is late. This is because it is only slightly over the twelve month period and because the Council misled Ms X that it had complied with the law on school transport. The Council also failed to advise Ms X she had a right of appeal to the SEND tribunal where there were two competing schools and she did not agree the Council’s preference could meet need.

Fault

42. The Council consulted only one school, School A. School A must therefore have been the nearest suitable school for the purposes of s.508 Education Act, as it was the only school which confirmed it could meet Ms X’s son’s needs under his EHC plan.
43. The Council could have consulted the nearer school, School B, but it did not do so. Ms X said that there were reasons why School A was suitable when School B was not and she did not agree that School B could meet her son’s needs. It is not for the Ombudsman to advise which school is suitable, but this is a matter Ms X could take to the SEND tribunal. I acknowledge this advice was not given to Ms X at the time and it is understandable she did not use her right of appeal.
44. Ms X says that the Council could not assume a school was suitable for a pupil with an EHC plan just because it was nearer and both schools were mainstream schools. I agree, mainstream schools will still differ in intake, resources and facilities and councils must check that a nearer school is suitable for the age and aptitude of the child, and for any SEN they have, and that it has places available. All officers and Members in this case failed to appreciate that the fact there was a nearer mainstream school is not enough to satisfy the Dudley test.
45. The Council has now acknowledged it failed to properly assess the transport application and wrongly failed to identify School A as the nearest suitable school.
46. The wording in the Council’s policy for a child with an EHC plan (that the qualifying school is the nearest school that can meet their needs) is not an inaccurate summary of the law on parental preference, but it is an over-simplification of the Dudley test and misled Ms X, and apparently officers and Members. The policy wording does not address the issue of efficient use of resources. Even if both schools had stated they could meet need, the Council would need to go on to consider if the parental choice of school incurs additional costs compared to the Council’s choice (which may not always be the case) and, if so, whether the additional amount represents an inefficient use of public resources having regard to the educational benefits and other advantages that the school will provide for the child. This is not explained in the Council’s policy.
47. The handling of the application and appeal suggests that officers, including senior managers and Members, were all unaware of the Dudley test as at no point did anyone:
• check the file to identify that another school had been consulted and confirmed it could also meet need;
• check that the cost comparison between School A and B had been carried out;
• check that a decision had been made that the costs to School A represented an inefficient use of resources compared to the transport costs to School B;
• consider whether they agreed with the decision that the costs to School A were an inefficient use of resources compared to School B or if they wished to substitute a different view.
48. When a Council receives an appeal or complaint, it is not enough to just take the word of officers who made the original decision. An investigation, review or appeal must consider the evidence available, apply the law and guidance, and consider whether the decision made stands up to independent scrutiny. The transport appeal process outlined in the Government guidance is not intended to be a process where reviewers merely check whether the original decision is sound, but intends that a reviewer, weighing up representations from both sides, may use their own discretion and judgment to consider whether a different decision should be substituted.
49. In Ms X’s case there was a total and fundamental failure of the appeal process. The process was not thorough, fair or impartial and the decisions made do not stand up to scrutiny. The evidence points to a concerning lack of knowledge of the law among decision makers. That the Council has identified a further seven cases where the same error has been made supports that this was a systemic failure not individual error.

Injustice and remedy

50. Ms X has set out her injustice as lost expenses, financial hardship, inconvenience and distress.
51. I find Ms X has also suffered the injustice of an unfair and inadequate appeal process when her valid appeal was incorrectly dismissed twice.
52. Ms X requested the Council carry out several remedy actions. The Council has agreed to:
• reimburse past expenses;
• make a payment of £300 in recognition of the impact of the fault on Ms X and her family;
• review other cases and reimburse others similarly affected.
53. The Council also says it has carried out changes to the StART service to prevent a similar error when EHC plans are amended.
54. I consider the above actions are appropriate and the payment of £300 is in line with what the Ombudsman would recommend for the distress and outrage of an unfair appeal process.
55. Ms X also asked the Council to apologise, review its transport policy and carry out staff training. I agree with Ms X that these are suitable remedy actions to the complaint and necessary to prevent a recurrence of the fault identified. The problems went beyond the StART team, it is apparent that there were also serious failures by the Transport team, review panel and Members in failing to look at the documentary evidence, in failing to apply the law correctly and in failing to apply their own judgment to the facts of the case.

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Agreed action

56. Within four weeks of my final decision the Council will apologise to Ms X, her partner and her son for the injustice caused.
57. Within eight weeks of my final decision the Council will:
• Review the wording of its transport policy to properly explain the Dudley test and / or
• Review the decision letters sent by the transport team and appeal panels to ensure that where the issue of two competing schools arises parents are informed about the legal test set out in Dudley and of their right of appeal to the SEND Tribunal if they do not agree that the Council’s choice of school can meet need or is an inefficient use of public resources.
58. Within twelve weeks of my final decision the Council will ensure that:
• Refresher training is provided to the StART team, transport team and all reviewers / appeal panel members to ensure that all involved in deciding transport matters have a clear understanding of the law.
• The systemic fault identified in eight cases and the remedial action now being taken is reported to the appropriate Committee with oversight of school transport. A copy of the relevant report to, and minutes of, the Committee meeting should be shared with the Ombudsman.

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Final decision

59. I have completed my investigation. There was fault in the way the Council considered an application for home to school transport when a child with an EHC plan transferred to secondary school. This caused inconvenience and financial loss to the family. I am satisfied the recommended actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman