Summary: the complainant, Rev X, complained the Council refused an application for home to school transport without considering the correct grounds. The Council says the family did not show exceptional circumstances to support the application. We found the Council at fault for failing to apply the correct test to the application and the Council agreed to our recommended remedy.

The complaint

1. The complainant whom I shall refer to as Rev X complains the Council failed to properly consider offering post-16 student transport to his daughter Y. Rev X says the Council failed to apply the correct test or consider all relevant information when it decided his application.
2. Rev X says this placed the family under financial stress, avoidable time, and inconvenience in transporting Y to school. Rev X says the family want the Council to properly consider the application, award free transport and review any other transport appeal cases where the Council has not named an alternative school.

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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 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 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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How I considered this complaint

6. In considering this complaint I have:
• Contacted the Rev X, and read the information presented in his complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched all relevant law, guidance and policy and previous Ombudsman decisions.
7. I shared with Rev X and the Council my draft decision and considered the comments received before reaching this my final decision.

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What I found

Legislation and Guidance

8. Under the Education Act 1996, councils must publish a statement setting out what transport provision they consider necessary for the attendance of persons of sixth form age receiving education or training at specified institutions. (Education Act 1996, section 509AA)
9. Section 509AB of the Education Act 1996 states councils must set out the arrangements the council proposes to make for young people with SEND (special educational needs) and disabilities.
10. A child with special educational needs may have an Education, Health and Care (EHC) plan. Where a child is to be educated in a school, section I of the plan must name the school the child will attend.
11. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” (or that the Secretary of State directs) to facilitate the attendance of relevant young adults at institutions where the local authority has secured the provision of education for the adult concerned. Relevant young adult means an adult who is under 25 years old for whom an EHC plan is maintained. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs. The plan coordinates a child or young person’s health and social care needs and sets out any additional support they might need. (The Children and Families Act 2014, section 82)
12. When a council finds it is ‘necessary’ to provide transport for the young adult under section 508F, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).
13. The Upper Tribunal (Administrative Appeals Chamber) has considered transport for post-19 learners with an EHC plan. The Tribunal commented that: “the local authority has a duty to make transport arrangements for [a post 19 learner] if they consider that to be ‘necessary’ having regard to all the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangement and the transportation must be free of charge.” (Staffordshire County Council v JM, 2016] UKUT 246 (AAC)
14. The parental preference school might be further away from the home than the nearest school that can meet the child’s needs. In such a case, a council can name the nearest school if it considers it to be suitable for meeting the child’s SEN. If the parent prefers the school that is further away, the council may agree to this but is able to ask the parents to provide some or all, of the transport funding. (Special educational needs and disability code of practice: 0 to 25 years, January 2015, paragraph 9.214)
15. Where a council says a nearer suitable school than the one chosen can also meet a child’s SEN, the Code is silent about whether it should name both schools on the EHC plan. However, a determination of the SEN Upper Tribunal (Dudley MBC v JS [2011] UKUT 67 (AAC)), found that councils could name two schools on a Statement of SEN (the predecessor of EHC plans).
16. A Council should name the parental choice of school alone if the added costs are not incompatible with the provision of efficient resources or such inefficiency is outweighed by educational benefit. (Education Act 1996 Schedule 27; Dudley MBC v S[2012] EWCA Civ 346)

The Council’s post-16 transport policy

17. The Council’s policy on transport since 2019 is under review. The policy currently says:

“… a child and young person who attends a school which is further away than the nearest suitable qualifying school with places available will not be eligible for travel support, except in exceptional circumstances…” The policy continues “…any travelling arrangements or expenses will be the responsibility of parents/carers if there is a nearer suitable qualifying school…”

18. If the school is the parent’s preferred school rather than the nearest school the Council does not consider this meets its exceptional circumstances criteria.

What happened

19. Rev X’s 17-year-old daughter Y has health conditions putting her at risk of a seizure. Y needs a travel escort trained in administering medicine if Y experiences a seizure. Y’s parents can do this if they drive her to college. The Council previously granted them a mileage allowance to support Y’s travel.
20. In 2020 Y moved from her former home where she had travel support to School Z. The Council named School Z alone in her EHC Plan coupled with Education Other Than at School (EOTAS) provision. Following that move Rev X applied for travel support for Y to travel the 32 miles from her home to School Z.
21. The Council refused the application and rejected Rev X’s appeal. In refusing the application the Council said School Z was not the nearest suitable school to Y’s home but the parental choice. Parental choice did not entitle a pupil to free transport. The Council said Rev X had not applied for suitable nearer schools. Therefore, the Council said it had no duty to provide travel support. On appeal the Council and Panel said Rev X had not shown any ‘extenuating circumstances’ supporting the application for travel support outside of the Council’s school transport policy.
22. Rev X says the Council did not name a suitable nearer school and despite extensive research he had not found a suitable school to meet Y’s needs. School Q which the Council says is nearer Rev X says could not meet all Y’s needs and therefore is not the nearest suitable school.
23. In response to my enquiries the Council recognises the use of the phrase ‘exceptional circumstances’ may be confusing. The Council is reviewing its school transport policy and says it will strive to ensure it properly reflects the test of ‘necessity’.
24. In commenting on my draft decision, the Council says that Y’s parents knew that when deciding if a proposed placement may be an inefficient use of public resources councils must consider any associated transport costs. The Council says Rev X knew the Council only named School Z because the family said it would provide transport. It says with the parents agreeing to provide transport it could not refuse to name the school in the EHC Plan on grounds of it being an inefficient use of resources. Without the parents’ agreement to provide transport the Council says it is unlikely the Council would name School Z in the EHC Plan because it would not consider it an efficient use of public resources.

Analysis – was there fault leading to injustice.

25. My role is to decide if the Council considered the application for travel support without fault, i.e., it considered all relevant information including the tests set by the law and guidance. It is not my role to decide if the Council should provide travel support.
26. The Council’s policy refers to the legal test of whether travel support is necessary. However, to decide that test it says in several places the applicant must show ‘exceptional circumstances.’ This phrase risks applying the wrong test. There will be examples of where travel support is necessary but where the circumstances are not exceptional. It is not for the applicant to show exceptional circumstances. It is the Council’s duty to decide if in the individual circumstances of the pupil it is necessary. I find the Council’s policy risks applying the wrong test to the application and that its decision was flawed. The decision has caused confusion and the policy as currently written could lead to other flawed decisions.
27. The EHC Plan names only School Z. The law allows the Council to name a nearer school as well as School Z in the EHC Plan. If it did then it could argue the choice of School Z is a parental preference and ask the parents to contribute to the travel costs. I have seen no evidence the Council considered exercising this power. I have also seen no evidence the Council properly considered whether the educational benefit of Y attending School Z outweighed the costs which made it incompatible in its view with the efficient use of resources. Throughout the Council has simply used the fact School Z is the parent’s choice to say under its policy that means the applicant is not eligible for an award. That suggests the Council has not fully considered all relevant information and I find the Council at fault.

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Agreed action

28. The faults have led to confusion and inconvenience. To remedy that the Council has agreed to within four weeks of my final decision:
• Write with an apology to Rev X and separately to Y;
• Review its decision having invited Rev X to present any further information he wishes the Council to consider;
• Pays Rev X £200 in recognition of the avoidable time, inconvenience and distress caused;

And within six months of my final decision updates the Ombudsman on its review of the school transport policy setting out the changes made, and reviews similar decisions made in the last twelve months.

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Final decision

29. In completing my investigation, I find the Council acted with fault leading to injustice.

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Investigator's decision on behalf of the Ombudsman