Summary: Mr and Mrs P complain the Council refused to provide school transport for their daughter, G. There is no fault in the transport appeal panel’s decision the Council should contribute to the cost of G’s school transport. The Ombudsman cannot question decisions taken without fault.

The complaint

1. Mr and Mrs P complain about school transport for their daughter, G. The Council refused their request, but an appeal panel offered a payment equivalent to the cost of bus fare. Mr and Mrs P want the Council to provide taxis.

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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. 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)
4. 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.
5. 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

6. I have considered:
• information provided by Mr and Mrs P;
• information provided by the Council, including G’s Education, Health and Care (EHC) Plan and the papers from the transport appeal.
7. I invited Mr and Mrs P and the Council to comment on my draft decision.

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What I found

8. Mr and Mrs P’s daughter, G, has an Education, Health and Care (EHC) Plan maintained by the Council. She attends an independent mainstream school.
9. Mr and Mrs P and the Council were unable to agree a school to be named in G’s EHC Plan. They resolved their disagreement through mediation. G’s EHC Plan says Mr and Mrs P agreed to make their own arrangements for their daughter’s education, and the Council will make a substantial payment by way of a Personal Budget to help them secure educational provision. The Plan says the Council considers any mainstream school can meet G’s needs.
10. Mr and Mrs P asked the Council to provide school transport. The Council refused because G does not attend the nearest suitable school. Mr and Mrs P appealed the Council’s decision. A transport appeal panel allowed their appeal and offered a payment equivalent to the cost of the bus fare. Mr and Mrs P complained. They say G is unable to travel by bus. They want the Council to provide taxis. They believe the Council is obliged to provide transport rather than a payment.

Education, Health and Care Plans: the law

11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
12. The procedure for assessing a child’s special educational needs and issuing an Education, Health and Care Plan is set out in legislation and Government guidance.
13. A Plan should name the school, or type of school, the child will attend. Alternatively, parents may make their own arrangements for their child’s education.
14. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s Education, Health and Care Plan.

Home to school transport

15. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
16. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance; or
• receive free school meals, or whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B)
17. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
18. A 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.
19. Councils may provide transport, or assistance with transport, for children who are not eligible children or do not attend a qualifying school. This includes paying the child’s travel expenses either in whole or in part. (Education Act 1996, section 508C)

Consideration

20. I do not decide whether the Council should provide transport for G, or how much it should contribute towards the cost. These are decisions for the Council’s transport appeal panel. My job is to check the panel made its decision properly. I cannot question decisions taken without fault.
21. The appeal panel was satisfied the Council had correctly applied its transport policy to Mr and Mrs P’s application. G was not eligible for transport because she does not attend her nearest suitable school. The Council does not have a duty to provide transport.
22. Mr and Mrs P disagree. They say the Council has not identified any schools closer their home that could meet G’s special educational needs.
23. Mr and Mrs P may be right, but this is not a decision the transport appeal panel or the Ombudsman can make. Decisions about the suitability of schools for pupils with special educational needs require specialist expertise. Parents have a right of appeal to the SEND Tribunal if they disagree with a council’s decision about which school their child should attend. They can appeal if the Council refuses to name their preferred school, names their preferred school on condition they pay transport costs, or refuses to name a school at all. Since suitable schools may be some distance from a child’s home, and the cost of transport can be significant, the Tribunal will take account of the cost of transport.
24. In G’s case, her EHC Plan says she could attend any mainstream school but her parents have made their own arrangements. For transport purposes, the nearest mainstream school is therefore suitable. The way for Mr and Mrs P to challenge this decision is by appeal to the SEND Tribunal: they could ask the Council to name a specific school (and provide transport).
25. The transport appeal panel was, however, sympathetic to the family’s predicament and decided the Council should contribute towards the cost of transport. The panel noted that an appeal to the SEND Tribunal would be the correct way to resolve the disagreement about the nearest suitable school. The panel decided the Council should pay the equivalent of G’s bus fare.
26. There is no fault in the Panel’s decision. The Ombudsman cannot question decisions taken without fault. As G is not an eligible pupil because she does not attend the nearest suitable school, the Council is entitled to make a financial contribution towards the cost of G’s transport “as it thinks fit”. (Education Act 1996, section 508C) It does not have to provide transport.

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Final decision

27. I have completed my investigation. There is no fault in the transport appeal panel’s decision to make a financial contribution towards the cost of G’s transport.

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Investigator's decision on behalf of the Ombudsman