Summary: There was fault with how the Council reached its decision to refuse Miss X’s request for school transport assistance. This caused Miss X a financial and medical injustice. The Council has agreed actions to remedy Miss X’s injustice.

The complaint

1. Miss X complained the Council did not consider her family circumstances when it decided not to provide school transport assistance for her son, Y.
2. Y has Special Education Needs (SEN). He has an Education Health Care Plan (EHC Plan).
3. Miss X said her health condition means she sometimes cannot take Y to school. She said that her partner will take him but does not drive so uses a taxi. She complained the Council would not help pay for the taxi.

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The Ombudsman’s role and powers

4. 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)
5. If we are satisfied with an organisation’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 Miss X’s complaint and have spoken to her about it.
7. I have also considered the Council’s response to Miss X and to my enquiries.
8. Miss X 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

The law

Nearest suitable school

9. If a school is named in an EHC Plan it does not automatically mean transport will be provided. The child still has to come into one of the categories of an eligible pupil. But the Guidance advises that eligibility for such children should be assessed on an individual basis to identify their particular transport requirements.
10. Parents may complain that the Council is refusing to provide free transport to the school named in their child’s EHC Plan because it considers the school is not the nearest suitable school. Where the parents’ preferred school is further away than the school the council considers the most suitable, the council is entitled to name the closer school if placing the child at the parental choice of school would be an unreasonable use of public expenditure. In making this decision the council must include the cost of transport to both schools in the comparison.
11. The council could agree to name the parents’ preferred school on condition that the parent agrees to meet the transport costs. But in these cases the council has to name both schools in Section I of the EHC Plan and specify the condition that the parents will pay for the transport.
12. If Section I only names one school without conditions, that school is deemed the nearest suitable school even if it is further away. This is because the council has not made arrangements for the child to attend a closer school.
13. If the council considers both schools are suitable, then unless the cost of transport to the parents’ choice of school is significantly higher, then the EHC Plan must name the parents’ preferred school. Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.

Mileage allowance

14. A council may make travel arrangements for an eligible child by offering a mileage allowance to the parent to drive the child to school if the parent agrees.
15. Government guidance Transport to school and other places of education published in August 2020 confirmed that:
16. “Mileage allowances and personal budgets should cover the cost of the parent’s journey to school with their child in the morning, and home again afterwards, and their journey to collect their child in the afternoon, and home again afterwards.”

What happened

Before the EHC Plan

17. In March 2020, Y was allocated a place at School C (mainstream secondary school) through school admissions processes. This was prior to the decision to issue his first EHC Plan. As a result, Y was on roll at School C from September 2020.
18. Miss X said that it was only when Y was at home due to the Covid-19 lockdown that she realised the severity of his needs, both educationally and socially.
19. Y did not access an educational setting between early 2020 and February 2021. This was both as a result of the parents’ decision not to accept a place at primary during the Covid-19 lockdown and then not accepting the place allocated at School C for secondary education.
20. Y’s parents decided not to send him to School C as they did not consider it suitable to meet his needs. Miss X said Y would not cope with a busy mainstream secondary school. The information provided by medical/social care professionals supported this.

Naming Y’s school in the EHC Plan

21. The Council consulted several schools including School A, School B and School C.
• School A responded, indicated it could meet Y’s needs and offered a place at a cost of £69,021 per year. This included 1-2-1 support.
• School B responded, indicated it could meet Y’s needs and offered a place. The basic cost was £42,501 per year. It indicated that Y may need a 1-2-1 allocated worker in order to access the full curriculum which would be an additional £33,150 with a total cost of £75,651.
• School C responded and indicated it could not meet Y’s needs
22. On 22 February 2021, the Council wrote to Miss X. It explained that Miss X’s preferred School A for Y was a higher cost than School B. The Council said that School B could meet Y’s needs. It said the Council would approve School A and name it in Y’s EHC Plan only if Miss X would agree to provide transport for Y to reduce costs for the Council.
23. Miss X signed the agreement that she would be responsible for transporting Y to School A. Miss X said that she felt she had no choice as she had been fighting to get the right school and support for Y for so long and did not want to risk losing the place.
24. The Council issued Y’s first EHC Plan on 25 February 2021. The Council named School A, an independent specialist school.
25. It also named mainstream School C. Given this school had said it could not meet Y’s needs, I assume it was included in the EHC Plan as Y was currently on roll at the school at the time the EHC Plan was finalised.
26. The EHC Plan did not specify the condition that the parents will pay for the transport.
27. Miss X did not appeal the EHC Plan because it named School A and that is what she wanted.

Request for travel assistance

28. In March 2021, Miss X requested travel assistance for Y to attend School A. The Council refused Miss X’s request.
29. The Council’s records show that Y would meet the criteria for Home to School Transport. However, the decision to name School A in his plan was made with the condition that the parents would be responsible for the transport arrangements.
30. Miss X appealed the Council’s decision. She stated that she is happy to bring Y to school, but she did not realise the financial implications. She asked for help with petrol costs. She said the agreement she signed did not show any timescales and asked whether the transport could be reviewed annually.
31. Miss X explained that she was so focussed on fighting for Y to get into the best school, she signed the agreement without considering her own health needs which sometimes mean she cannot take Y to school. She said that her partner, Y’s Dad is happy to take Y on the days she cannot but as he does not drive, they would need to use a taxi. Miss X added that Y would not be able to travel alone or with a stranger. This would mean potentially four taxi trips a day to allow Y’s Dad to get home and back to school for pick up. Miss X said that a one-way taxi trip costs £6.
32. The Council dismissed Miss X’s appeal as she had signed the agreement that she would be responsible for transport.
33. Miss X escalated her appeal to stage 2. She cited her reasons for appeal on financial and medical grounds. Miss X provided evidence to support her appeal. A GP letter confirmed Miss X’s medical condition is unpredictable and will affect when she can take her son to school. The GP said they would value any additional support that could be offered to the family.
34. In October 2021, the Council decided not uphold Miss X’s appeal. It said that there was no significant change in circumstances that would require a review of the transport agreement.
35. Miss X then brought her complaint to the Ombudsman.

Annual Review of Y’s EHC Plan

36. In November, the Council began an Annual Review of Y’s EHC Plan. This was completed in January 2022 and named School A.
37. In January 2022, the Council wrote to Miss Y. It said that following a recent review of Y’s case, the Council had determined that Y needs a specialist placement and School A is the most appropriate setting. It said, based on this new information, the Council was inviting Miss X to submit a fresh application for travel support for Y.

Personal Travel Budget (PTB)

38. In February, the Council Assisted Transport Panel considered Miss X’s application. It agreed to offer a Personal Transport Budget (PTB) to enable Miss X to arrange transport for Y to and from school.
39. In March the Council confirmed it would be offering Miss X a PTB of £5.40 per day from 1 February 2022. The Council also wrote to Miss X confirming it would pay Miss X £86.40 travel expenses for 17-31 January 2022.
40. The PTB agreement form explained that PTB is calculated based on the distance between home and school for days that the child attends school. It explained that the applicant has control how to spend the PTB on transporting your child.
41. Miss X said while she welcomed the assistance, she said £5.40 per day does not even cover one way in taxi fare (£6) between Y’s home and the school for the days when she is unable to drive Y herself.
42. Miss X said that she often drives her son to school in order to save on taxi fare even when her medical condition required her to stay at home. She said this has caused her distress, pain and embarrassment.

Amended PTB offer

43. During the course of my investigation, the Council agreed to pay £24 PTB per day to cover the cost of taxi fares. It also agreed to top up the days where it had paid £5.40 PTB. It said this PTB would be paid for the days Y attended school after 25 February 2021 when his EHC Plan was issued.

My findings

Naming of preferred school with a transport condition

44. The Council was not at fault for agreeing to name the parents’ preferred school on condition that they agreed to meet the transport costs. However, in these cases, the law required the Council to name the preferred school and a suitable alternative school in Section I of the EHC Plan and specify the condition that the parents will pay for the transport.
45. From the evidence I have seen, the Council did not do this. It named School A (preferred school) and School C. However, as School C had said it could not meet Y’s needs, it was not a suitable alternative school. In addition, the EHC Plan did not include a condition that the parents would pay for the transport.
46. I cannot pass judgement on the content of an EHC Plan, as this is a matter for the SEND Tribunal. However, I can investigate how the Council reached its decision not to approve Miss X’s transport request.
47. The Council’s decision was on the grounds that it only named School A on the condition that the parents paid for the transport. As the EHC Plan did not name an alternative suitable school or include a transport condition, School A is deemed the nearest suitable school. Therefore, Y was eligible for school transport from February 2021 when he started at School A.
48. The Council was at fault for how it reached its decision to refuse school transport assistance. This fault caused Y’s family the financial injustice of paying for mileage and taxi fares with no support. In addition, the stress of applying and appealing for transport support, on top of already fighting for School A caused Miss X’s medical condition to worsen and her to develop mental health problems.
49. The Council has agreed to pay Miss X for the time and trouble of pursuing this complaint and the distress caused by the fault.

Personal Travel Budget

50. During the course of my investigation, the Council agreed:
• An amended PTB for Y to support his journey to and from school. It agreed to pay £24 per day for the cost of taxi fares.
• To backpay the period when Y should have received a PTB. Y attended school 175 days between 25 February 2021 and 16 December 2021. Therefore, Y was eligible for 175 days of school transport assistance. Based on £24 PTB per day, this equates to £4,200.
• To top up the PTB to £24 for the 11 days it had paid Miss X £5.40 in January 2021. This is £18.60 per day, equating to £204.60.
• To top up to £24 for the days it had paid Miss X £5.40 from February 2022 until it formally amends Y’s PTB. This will be £18.60 per day. The Council requested that Miss X return the PTB agreement form in order to set up future payments.

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Agreed action

51. Within 4 weeks of my final decision, the Council has agreed to:
1. Apologise to Miss X for the stress and inconvenience caused by the Council’s refusal to offer school transport.
2. Pay Miss X £100 for the time and trouble it has taken her to pursue this matter.
3. Pay Miss X £200 for the distress and medical implications caused by the refusal to provide transport assistance.
4. Pay Miss X £4200 for the days that Y should have received transport assistance between 25 February 2021 and 16 December 2021.
5. Pay Miss X a top up of £204.60 for January 2022.
6. Pay Miss X a top up of £18.60 per day for the days the Council has paid PTB of £5.40 (making it up to £24) since February 2022.
52. Within 8 weeks of my final decision, the Council has agreed to:
1. Amend Y’s PTB to £24 per day once it receives a signed PTB agreement from Miss X.

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Final decision

53. I have completed my investigation. The Council was at fault with how it reached its decision to refuse school transport assistance for Miss X’s son, Y. This caused Miss X a financial and medical injustice. The Council has agreed to amend Y’s PTB and to backpay for the days when he should have received transport assistance.

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Investigator's decision on behalf of the Ombudsman