Summary: Mr B complained the Council refused to provide school transport for his son. We find fault with the Council’s decision making as it wrongly concluded Mr B’s son does not attend the nearest appropriate school. To remedy the injustice caused, the Council has agreed to our recommendations to arrange a fresh appeal with a new panel and apologise to Mr B.

The complaint

1. Mr B complained the Council refused to provide school transport for his son (C). He says the Council failed to properly consider the information he provided when he submitted his appeal.
2. Mr B says it is frustrating that the Council has not considered his appeal properly. He also says the Council’s decision has impacted his work schedule because he has to take and pick C up from school every day.

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The Ombudsman’s role and powers

3. 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)
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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered information Mr B submitted with his complaint. I also considered the information the Council provided, including the appeal paperwork.
7. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

8. Section 508B of the Education Act 1996 requires local authorities to provide free home to school transport for eligible children to attend their qualifying school.
9. Eligible children include those who:

• Cannot walk to school because of their special educational needs (SEN), disability, or a mobility problem.
• Live beyond the statutory walking distance from school (two miles for children under eight, three miles for children aged eight and above).

10. The nearest qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any SEN the child may have.
11. The government issued statutory guidance in 2014, ‘Home to school travel and transport guidance’. This says usual transport requirements should not be considered when assessing transport needs of eligible children due to a disability or mobility problems. Instead, eligibility for such children should be assessed on an individual basis to identify their particular transport requirements.
12. The special educational needs and disability (SEND) code of practice: 0 to 25 years provides local authorities with guidance on their duties towards children and young people with SEN.
13. Paragraph 9.214 says “The parents’ or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the local authority can name the nearer school or college if it considers it to be appropriate for meeting the child or young person’s SEN. If the parents prefer the school or college that is further away, the local authority may agree to this but is able to ask the parents to provide some or all of the transport funding”.

What happened

14. Mr B’s son, C, has learning difficulties and an Education, Health and Care (EHC) plan. Section I of his EHC plan names a mainstream school with specialist provision.
15. Mr B applied to the Council for school transport for C in September 2020. He said C had no perception of danger and so it was unsafe for him to make his own way to school on public transport.
16. The Council wrote to Mr B and said it could not provide C with transport assistance because the distance between home and the school is less than the statutory distance of three miles. It said Mr B had not provided sufficient evidence to show that C could not walk to school.
17. Mr B emailed the Council and explained that C cannot walk to school because of his mobility issues. He also attached medical evidence.
18. The Council responded to Mr B and said it could not consider the medical evidence he provided because C does not attend the nearest appropriate school to meet his needs. It said if he was dissatisfied, he could appeal the decision.
19. Mr B emailed the Council and said the school that is closer to home did not meet C’s needs. He also said that even if C attended the closer school, he would still not be able to walk to school because of his medical condition.
20. The Council wrote to Mr B and offered him the choice of a face-to-face, virtual, or paper-based hearing. Mr B chose a paper-based hearing.
21. In his appeal documents, Mr B said the school that C attends is the nearest one that meets his needs and provides the support he requires. Therefore, it is the nearest appropriate school. He also said C cannot walk to school without serious and prolonged discomfort.
22. The Council sent its decision letter to Mr B. It explained an independent panel had considered his appeal and the evidence he submitted.
23. The panel decided it could not uphold Mr B’s appeal because the school that C attends is not the nearest appropriate school for transport purposes. The panel also decided it would not use its discretion because it was Mr B’s parental choice not to send C to the closest school and there was no evidence it could not meet his needs.
24. Mr B remained dissatisfied and referred the matter to the Ombudsman.

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Analysis

25. It is not the Ombudsman’s role to decide whether a council should provide school transport for a child. We can only consider if there was fault in how the council reached its decision.
26. The SEND code of practice makes it clear that for a child with an EHC plan, if a local authority considers there is a nearer suitable school, this should be named on the plan. Alternatively, a local authority can name the parents’ preferred school with the condition that the parents agree to pay for the transport costs.
27. The Council’s main reason for not upholding Mr B’s appeal was the school that C attends is not the nearest appropriate school for transport purposes. However, this is incorrect as it has named the school on his EHC plan without any conditions. Therefore, the school C attends is the nearest appropriate school even though it is further away.
28. The Council also referred to the statutory walking distance of three miles when it initially rejected Mr B’s application. This is fault. As C has mobility issues and SEN, his ability to walk to school should be considered on an individual basis and without reference to the statutory walking distance.
29. The faults identified call into question the Council’s decision making. This has caused Mr B a significant injustice as he cannot be certain his appeal was properly considered.

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Agreed action

30. To remedy the injustice caused by fault, by 27 July 2021 the Council has agreed to:

• Apologise to Mr B.
• Write to Mr B and offer him a fresh appeal with a new panel.

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Final decision

31. I have found fault by the Council, causing an injustice to Mr B. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman