Summary: Mrs C complained the school transport the Council provided for her daughter was not suitable which was worsening her anxiety. We have found fault in the way the Council considered home to school transport but consider the agreed action of an apology, £200 and a review of decisions reached provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains the school transport the Council provided for her daughter, X, from September 2020 is not suitable for her needs. Mrs C says the distance is too long and there have been issues with the Council’s provider which the Council has not properly investigated.
2. Mrs C says because of the Council’s fault, her daughter spends too long travelling to school and misses important sensory input due to her arrival time which together is making her anxiety worse.

Back to top

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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

Back to top

How I considered this complaint

6. I have considered information provided by Mrs C and discussed the complaint with her by telephone. I have also considered the Council’s policy, its comments on the complaint and supporting information.
7. I have considered the relevant law and guidance and the Ombudsman’s Focus Report: All on board? Navigating school transport issues.
8. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.
9. 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.

Back to top

What I found

Background and legislation

Education, Health and Care (EHC) Plans

10. 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.
11. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.)
12. Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
13. In the case of S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346 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.

Suitability of travel arrangements

14. Statutory guidance ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’), issued in July 2014 sets out:
• best practice suggests the maximum journey to or from school for a child of primary school age should be no more than 45 minutes and for secondary school age 75 minutes. For children with special educational needs or disabilities, journeys may be more complex and a shorter journey time, although desirable, may not always be possible; and
• for arrangements to be suitable, they must be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.
15. The issue of non-stressful transport was considered in R V Hereford and Worcester CC ex p P [1992] which found the obligation on councils is to make such transport arrangements as it considers necessary for a child to reach school ‘without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer, just as it must be to make such arrangements as it considers necessary for him to travel in safety and in reasonable comfort’. The courts have found ‘it is primarily for the local authority to decide’ what is necessary (R (on the application of M) v London Borough of Hounslow (2013)).
16. Eligibility for children who cannot reasonably be expected to walk to school because of mobility problems or because of health and safety issues related to their special educational needs (SEN) or disability must be assessed on an individual basis to identify their particular transport requirements. (Department of Education, 2014, Home to school travel and transport guidance)
17. The Department for Education’s statutory guidance for home to school transport says councils should have both a complaint and an appeals procedure for parents to follow should they have cause for complaint about the service, or wish to appeal about the eligibility of their child for travel support. It says appeals should have two stages: Stage one conducted by a senior officer and stage two by an appeal panel independent of the process to date. The appeal panel should consider written and verbal representations from both parents and officers involved.

The Council’s ‘Home to School/College Travel and Transport Policy’

18. This states 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.
19. 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.
20. 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.
21. The policy also sets out the Council will consider and may agree requests for home to school transport where there are considered to be extenuating circumstances that prevent a child accessing their school unless travel assistance is put in place. If a parent believes extenuating circumstances exist and assistance with travel is necessary, they will need to complete a transport case review form with all relevant information and evidence for consideration.
22. The policy provides a right of appeal about the transport arrangements offered including where there is a change to existing travel arrangements. This is a two stage process which includes an independent appeal panel.

What happened

23. Mrs C’s daughter, X, has special educational needs with a diagnosis of Autism Spectrum Disorder and developmental delay with physical health issues.
24. X has had an Education Health and Care (EHC) plan from 2015. The EHC plan for X says she thrives on routine and likes things done in a certain way and when this does not happen she will get frustrated which leads to challenging behaviour in the form of a meltdown and sensory overload.
25. The current EHC plan names a maintained special school for pupils with learning and additional needs. I will refer to the school as School A. The EHC plan states the placement has been named as it is the preferred school of X’s parents and on the basis they will be responsible for home to school transport for the duration of the placement.
26. The Council is providing free home to school transport for X under its discretionary travel policy. The Council wrote to Mrs C in March 2020 with its decision to provide transport for the academic year 2020-21 on an exceptional basis and again in April for the 2021-22 academic year. This decision is made on an annual basis.
27. The company contracted by the Council to provide this service uses a minibus to transport 5 children and an escort.
28. The Council has confirmed that its route planning system shows the current route as 18 miles. The transport provider picks up 5 passengers along the route with an expected collection time of 7.43am and arrival at school at 8.50am. The collection time for the return journey is 3pm with the drop off at home being at 4.05pm. The Council notes the times are a guide only due to variable traffic conditions over the length of the route.
29. Mrs C says X often does not get to school until 9am as the journey regularly takes longer than 75 minutes. Mrs C says the later arrival at school means X does not have time to spin, bounce and dance to burn off the pent up frustration which is aggravated by the longer journey times and missing this affects her whole day at school.
30. Mrs C says there was also a period of about 5 weeks when there was no travel provided. During this period Mrs C says X missed school on Mondays and her parents split the journey for the reminder of the week and were reimbursed in line with the Council’s policy.
31. Mrs C emailed the Council in early December 2021 to complain about X’s transport arrangements. The Council responded to say it was aware of a few issues on routes into the school and the lengths some children were travelling. The Council explained it had previously put on an additional vehicle to split the route to shorten journey times when it was made aware a route was taking over a certain time. However, this was not possible on all routes due to driver shortages and increased fuel costs. The Council said it was trying to ensure the route and others were running to an acceptable time.
32. Mrs C remained unhappy with the Council’s response. The Council did not advise Mrs C of her right of appeal under its policy.
33. The Council provided a response at the second stage of its complaints procedure in mid-February and apologised for the delay. The Council accepted its December complaint response above did not provide a reply to all the elements of the complaint. The Council confirmed several issues had been referred back to the service to provide a further response by 4 March. The Council provided a further response and apology to Mrs C on 22 March.
34. The Council contacted Mrs C in mid-April 2022 to say its transport provider had ended most of their routes to School A after the Easter holiday. The Council advised it had not been able to identify a new operator for this route which meant there was no transport available from the following week. The Council apologised for not being able to provide transport for X from this date and confirmed it would reimburse parents for providing transport in the period while it found a new operator.
35. Mrs C contacted the Ombudsman in June to say there were ongoing issues with the driver of the vehicle and X had been asked to sit in the back which was too cramped for such a long journey.

My consideration

36. Where the parents’ preferred school is further away than the school a council considers the most suitable, a 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 a council must include the cost of transport to both schools in the comparison. A 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. 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. 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.
37. The EHC Plan for X names only one school in section I on the basis of parental preference and that the parents are responsible for home to school transport for the duration of the placement. The Council has provided home to school transport but on an exceptional circumstances basis which requires an annual application.
38. I have not seen evidence the Council has applied the relevant tests appropriately. It would need to show two schools were suitable for X and there was a place available for X at both. There is also no evidence the Council considered the second test and established the cost of providing transport to both schools and whether Mrs C’s preferred school was incompatible with the efficient use of resources. This is fault which I consider has caused Mrs C a degree of uncertainty. This is because I cannot say what decision the Council would have made, in respect of travel assistance for X, if it had properly considered the relevant tests.
39. The Council also did not properly apply the third test. If the Council decided Mrs C’s preferred school was an inefficient use of resources, it should have named both schools in X’s EHC plan and the condition that Mrs C would provide transport to her preferred school. This would have given Mrs C a right of appeal to the Special Educational Needs and Disability (SEND) tribunal to decide which school was the nearest suitable provision. However, the Council only included in X’s EHC plan the condition for Mrs C to provide transport to School A as it was Mrs C preferred school. The Council did not name the second school. This is fault. As the Council only named Mrs Cs’s preferred school in X’s EHC plan, I consider this fault deprived Mrs C’s right to appeal to the SEND tribunal.
40. The Council has acknowledged the above issue was identified in a previous Ombudsman investigation and it is currently completing a review of its home to school transport service as a result.
41. Mrs C raised concerns about the suitability of the route in her complaint to the Council in early December 2021. The Council’s initial response did not provide a response to a number of issues raised by Mrs C. However, the Council provided a further response at the second stage of its complaints procedure in mid-February which accepted it had not provided a full response but instead of doing so referred the matter back to the service to respond by 4 March. The service did not reply until 22 March. This delay constitutes fault.
42. The Council’s response to Mrs C’s complaint also concentrated on what the planned journey was rather than what was happening in practice. There is no evidence that before deciding whether the transport was, in practice, safe and reasonably stress free for X, the Council checked how often the journey exceeded 75 minutes, why this happened and whether any delays were avoidable and the impact of any long journeys and changes on X. There is also no evidence of contact with the operator to check how often it made changes to the route, driver or children carried with X and whether it gave Mrs C or the school enough time to prepare X for any changes.
43. The Council says its contractors inform the Council if routes are repeatedly taking longer that the timeframes provided within the DfE Guidance. The Council has accepted it does not have records of such contact from the contractor in relation to this route. The Council also accepts that when it received the concerns from Mrs C it should have recorded the action taken. The Council says its officers contacted the contractor but it has no records to support this assertion. This is fault. The Council has confirmed it is addressing record keeping as part of the above review.
44. The Councill’s policy provides a right of appeal about the transport arrangements offered which includes a case review panel at the second stage. The Council did not advise Mrs C of her right of appeal about the suitability of the transport arrangements despite the concerns she had expressed. The failure to advise Mrs C of her right of appeal constitutes fault.
45. The Council says at the time of Mrs C’s complaint it was not usual practice for officers to offer an appeal when the service was actively exploring alternative routes with shorter journey times. This was because it was expected that an alternative route would be found faster than the appeal process could conclude. However, the Council has accepted that Mrs C should have been advised of her right to appeal as this did not prevent the officers continuing to explore alternative transport routes. The Council has confirmed it has revised its practice to make all parents aware of their right of appeal at an earlier stage in the process. The Ombudsman would welcome this action.
46. In responding to a draft of this decision Mrs C has asked me to record her concern about the possibility of any change to X’s school placement or the Council’s provision of travel assistance and the detrimental impact this would have on X and her ability to attend school given the period of time the current arrangements have been in place. We would expect the Council to have regard to these issues and provide cogent reasons for any decision. It would also be open to Mrs C to make a new complaint to the Ombudsman for consideration of whether we should investigate if she was unhappy with the outcome of the agreed actions below.

Back to top

Agreed action

47. To remedy the injustice caused to Mrs C by the faults identified, the Council has agreed to complete the following within six weeks of my final decision:
1. write to Mrs C to apologise for the injustice caused by the faults identified;
2. pay Mrs C £200 to recognise her uncertainty and time and trouble in making the complaint;
3. review its decision to only provide home to school transport on an annual exceptional basis including:

• establishing the cost of providing transport to both School A and the second school the Council considers can meet X’s needs with a place available and, taking this into account, consider whether Mrs C’s preferred school is incompatible with the efficient use of resources
• if the Council considers Mrs C’s preferred school to be incompatible with the efficient use of resources, the Council will amend X’s EHC plan to name both schools and include the condition for Mrs C to provide transport to School A and advise Mrs C of her right of appeal to the SEND tribunal when the final EHC plan is issued
• if the Council considers Mrs C’s preferred school is not incompatible with the efficient use of resources, then Mrs C’s preferred school will be the nearest suitable school and the Council should amend X’s EHC plan to reflect this and provide travel assistance in line with its Home to School Travel and Transport policy
4. review its decision about the suitability of the transport it provides for X (this should address each of Mrs C’s concerns and establish how the transport arrangements have worked in practice, the extent of any problems X has experienced and how this affected her) and write to Mrs C setting out its decision with reasons and right of appeal; and
5. if the Council decides the transport was not suitable, make suitable arrangements and provide a remedy for any avoidable distress to Mrs C and X, in line with our Guidance on Remedies.

Back to top

Final decision

48. I have completed my investigation as I have found fault in how the Council considered the home to school transport provided for X but consider the agreed actions above provide a suitable remedy.

Back to top

Investigator's decision on behalf of the Ombudsman