Summary: Ms X complains about the Council’s decision to decline to provide home to school transport for her child. She says her child has not been able to attend school due to the lack of transport. We find fault with the Council for not properly considering whether the cost of Ms X’s preferred school was incompatible with the efficient use of resources. We have made recommendations to remedy the injustice caused.

The complaint

1. Ms X complains about the Council’s decision to decline to provide home to school transport for her child. She says her child has not been able to attend school due to the lack of transport.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I spoke with Ms X and considered the information she provided.
5. I considered the information provided by the Council.
6. I sent a draft decision to Ms X and the Council and considered their comments.
7. 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

Education, Health and Care (EHC) plan

8. The purpose of an EHC Plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC Plan is needed and for preparing the EHC Plan. The EHC Plan should set out the specific support that is to be provided. It will usually name either a specific school, or a type of school that can meet the child’s needs.

Case law – S and another v Dudley Metropolitan Borough Council [2021] EWCA Civ 346

9. The Court of Appeal set out the test that councils should apply when deciding whether they are obliged to pay for transport to a parent’s choice of school:
• First it should be established whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the council’s choice of school (i.e. a place is available). If the Council’s choice is not suitable, or there is no place available, then the parent’s choice is the nearest suitable school.
• If both schools are suitable, the cost of providing transport to both should be established and taken into account when considering whether the parent’s choice is incompatible with the efficient use of resources.
• Only if the total cost of the parent’s choice of school compared to the Council’s choice of school (including transport) is so significant as to represent an inefficient use of resources, then the council can name two schools, with the condition the parents provide transport to their choice of school.

The Council’s Home to School Transport policy

10. Paragraph 3.5 notes that an entitlement to home to school transport exists where the following criteria is satisfied:
• A child with an EHCP attends their nearest suitable school and qualifies for home to school transport under the statutory walking distances (section 3.2) outlined previously within this policy.
11. Where a child’s SEN or mobility difficulties mean he or she cannot reasonably be expected to walk to school even when accompanied by a parent, transport can be provided even if the distance criteria are not met.
12. For those children with an EHCP, the nearest suitable school will be the school that can meet the child’s needs and not the school that best meets the child’s needs. Where a parent/carer exercises parental preference in choosing a school further away than the nearest suitable school, the Council can name that school but state that this is not the nearest suitable school. Under this circumstance, the child is not eligible for transport and the parent takes on all financial and practical responsibility of getting their child to and from school.

What happened

13. Ms X has a child, A, with an EHC plan.
14. The Council issued A’s final EHC plan in May 2021. The Council named one school, School 1, as A’s placement for September 2021. The Council included a condition which noted School 1 was not the nearest provision and the Council had named School 1 as it was parental preference. The EHC plan also noted the Council named School 1 on the basis Ms X would be responsible for home to school transport.
15. The Council considered there was a nearer suitable school, School 2. School 2 had a space for A to attend.
16. Ms X appealed the Council’s decision not to provide home to school transport for A. The Council considered Ms X’s appeal at stage one in August 2021. The Council declined to provide travel assistance. The Council said A was not entitled to travel assistance under its policy as they would not be attending their nearest suitable school. The Council confirmed it considered School 2 was A’s nearest suitable school.
17. In October 2021, the Council’s transport case review panel considered Ms X’s appeal. The panel declined to offer Ms X travel assistance. The panel noted the Council had correctly applied its transport policy as School 1 was not A’s nearest suitable school.

Analysis

18. Case law has established the tests councils should apply when deciding whether they should pay for transport to a parent’s choice of school.
19. The Council has shown it applied the first test appropriately. This is because the Council established that both School 1 and School 2 were suitable for A and identified there was a place available for A at both schools.
20. However, there is no evidence the Council considered the second test as it did not establish the cost of providing transport to both schools. It also did not consider whether Ms X’s preferred school was incompatible with the efficient use of resources. This is fault.
21. I consider the fault identified above caused Ms X some uncertainty. This is because I cannot say what decision the Council would have made, in respect of travel assistance for A, if it had properly considered the tests it needed to.
22. The Council also did not properly apply the third test. If the Council decided School 1 was an inefficient use of resources, it should have named both School 1 and School 2 in A’s EHC plan and the condition that Ms X would provide transport to School 1. This would then have given Ms X the right of appeal to the Special Educational Needs and Disability (SEND) tribunal to decide which school was the nearest suitable provision.
23. In this case, the Council only included in A’s EHC plan the condition for Ms X to provide transport to School 1 as it was Ms X’s preferred school. The Council did not name School 2 as well. Therefore, this is fault.
24. As the Council only named Ms X’s preferred school in A’s EHC plan, I consider this fault deprived Ms X of the right to appeal to the SEND tribunal.

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Agreed action

25. To remedy the injustice caused to Ms X by the faults identified, the Council has agreed to complete the following:
• Apologise to Ms X for the injustice caused by the faults identified.
• Establish the cost of providing transport to both School 1 and School 2 and, taking this into account, consider whether Ms X’s preferred school is incompatible with the efficient use of resources.
1. If the Council considers Ms X’s preferred school to be incompatible with the efficient use of resources, the Council will amend A’s EHC plan to name both schools and include the condition for Ms X to provide transport to School 1. When the final EHC plan is issued, the Council will tell Ms X of her right to appeal to the SEND tribunal.
2. If the Council considers Ms X’s preferred school is not incompatible with the efficient use of resources, then Ms X’s preferred school will be the nearest suitable school. The Council should amend A’s EHC plan to reflect this and provide travel assistance in line with its Home to School Travel and Transport policy.
26. The Council will complete the above within four weeks of the final decision.
27. I also recommend the Council complete the following:
• The Council will review its Home to School Travel and Transport policy to ensure it provides clear information about:
1. the tests it must apply when deciding whether to pay for transport/provide travel assistance; and
2. where the Council decides the parental choice school is incompatible with the efficient use of resources, it will name both schools in the EHC plan along with the condition that the parent will pay for the transport costs to the preferred school.
• The Council will review all transport appeal decisions, issued within the past 12 months, to check whether the same fault has occurred in other cases. If the Council identifies cases with the same fault, the Council should take appropriate steps to remedy the injustice caused by the faults identified. The Council will provide details to the Ombudsman outlining the cases it has identified and a brief outline of the remedy provided.
28. The Council will complete the above within four months of the final decision.

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Final decision

I find fault with the Council for not properly considering whether the cost of Ms X’s preferred school was incompatible with the efficient use of resources. The Council has accepted the recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman