Summary: Mr X complained that the Council wrongly refused his application and appeal for help with school transport for his daughter, D, who is disabled, to the school named in her Education, Health and Care Plan. We find that the Council’s decision-making was flawed as it did not take account of relevant law and guidance. The Council should have treated D’s school as the nearest suitable school as it was the only one named in the Plan. The Council has now agreed a remedy including funding the transport, reimbursing Mr X’s expenses, and identifying and taking the same action on other similar cases.

The complaint

1. Mr X complained that the Council wrongly refused his application and appeal for help with school transport for his daughter, who is disabled, to the school named in her Education, Health and Care Plan. He says this is putting him in financial hardship as he has to pay for the transport out of his welfare benefits.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. 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

5. I discussed the complaint with Mr X and considered the documents he and the Council provided, including his application for help with transport and the appeal documents. I made enquiries of the Council and considered its response. I considered relevant law, policy and guidance on home to school transport.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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

Relevant law, policy and guidance

Education Health and Care Plans

8. A child with special educational needs and disabilities (SEND) may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section I names the education placement the child will attend.

Home to school transport

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for 'eligible children' of compulsory school age to attend their 'qualifying school'. The relevant 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. 'Eligible children' include:
• children living outside 'statutory walking distance' from the school (two miles for children under eight, three miles for children aged eight and above)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem. (Education Act 1996, 508B(1) and Schedule 35B)
10. Where the child qualifies for help with transport, the transport must be free.
11. Under the Council’s ‘Home to School Travel and Transport Policy’ if it decides a child is eligible for help with transport, it may provide the transport itself or offer help such as a personal travel budget or mileage allowance.

Nearest suitable school

12. The Council’s ‘Home to School & College Travel and Transport Policy for Children and Young People with Disabilities (SEND)’ says:
• Parental preference for School: a child or 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. This applies even if the distance from home to the school they attend is more than the statutory walking distance.
13. It also says the Council will agree travel support for children and young people with an EHC Plan in the two circumstances set out in paragraph 9 above, or where:
• “the child/young person attends the named school the Council has determined in the EHC Plan as being the nearest available school that is able to meet the needs of the child or young person where that school is over the statutory distance”.
14. Caselaw has established the following principles concerning eligibility for help with transport to the school named in an EHC Plan (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346):
• 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 in the EHC Plan 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.
• 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.
• 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.
15. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ advises:

“The parents’ or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the local authority can name the nearer school or college if it considers it to be appropriate for meeting the child or young person’s SEN. If the parents prefer the school or college that is further away, the local authority may agree to this but is able to ask the parents to provide some or all of the transport funding.” (SEND Code of Practice paragraph 9.214)

16. Under the Council’s ‘Home to School Travel and Transport Policy’ parents have a right to challenge a decision refusing help with transport under a two-stage process:
• Stage 1 – Review by a senior officer
• Stage 2 - Review by an appeal panel. The panel considers oral and written representations from the parent. It will consider using its discretion to award help with transport where it considers it necessary to do so.

What happened

17. Mr X has a daughter, D, who has significant physical disabilities and developmental delay. D has had an EHC Plan for several years and attended a specialist school, School 1. Mr X used to drive D to and from School 1.
18. He became unhappy with the support School 1 was providing and how it dealt with a safeguarding concern he raised. He wanted to move D to another specialist school, School 2, which was further away than School 1, over 15 miles from his home. He had an early annual review meeting with the SEND caseworker in November 2021 to discuss his request for a change of placement.
19. The Council issued an amended EHC Plan for D in December 2021. In section I of the Plan it said the type of setting was a local maintained special school. It named School 2 and gave a start date in April 2022.
20. In March 2022 Mr X applied to the Council for help with transport to School 2 on the Council’s ‘Special Educational Needs Transport Request Form’. He explained that D cannot walk and uses a wheelchair. He was applying for an allowance to cover his fuel costs for driving D to and from school.
21. The Council refused the application in May 2022 saying School 2 was not D’s nearest qualifying school. It said D’s needs could be met at a nearer school, School 1.
22. Mr X appealed against the decision. He explained why had had asked for a change of school placement and confirmed that the Council had named School 2 in section I of the EHC Plan, removing School 1. He said D was much happier and more settled at School 2 which was better able to meet her needs.
23. The Council’s response was that it was sympathetic to Mr X’s personal circumstances. However it confirmed its position that under the law and the Council’s policy D did not qualify for help with transport as School 2 was not D’s nearest qualifying school. It said the Council considered School 1 could meet D’s needs. It offered Mr X the right of appeal to the appeal panel.
24. Mr X appealed, providing details of his complaint against the governing body of School 1, and explaining why he had wished to move D to another school. The appeal hearing took place in July 2022 by teleconference. The panel consisted of a senior officer in the Council’s Education department and a Councillor with responsibility for the children’s and young people’s services. Mr X attended. He explained again why he was unhappy with School 1 and wanted D to move to School 2. He said the Council had agreed to amend her EHC Plan to name School 2. He said he had a wheelchair accessible vehicle and was happy to transport D to and from school but he was on a low income and could not afford the fuel costs.
25. The appeal was unsuccessful. The decision letter said the panel found the original decision on the transport application and the decision on review were correct under the Council’s policy. It then considered whether there were exceptional grounds to award transport outside the policy but decided there were not. The letter advised Mr X of his right to complain to the Ombudsman.
26. The notes of the Panel’s decision-making show its view was that:
• the key issue in this case was that “the child left School 1 due to parental preference”, and
• “the named school was only changed on the EHCP to parental preference and it was outlined that transport would not be provided”.
27. Mr X complained to the Ombudsman. He said the Council did not tell him it would only name School 2 in the EHC Plan as parental preference on condition that he agreed to pay for transport. He said he had no discussions with the Council about this. The only mention of transport was that the Council said he could not apply until D had started at the new school. He had been providing the transport for D but was struggling to meet the costs. He had had to borrow money and twice he had not been able to take D to school because he did not have the funds available.

Analysis – was there fault causing injustice?

28. The Council does not automatically have to provide free transport to the school named in an EHC Plan. It has a duty to do so where other qualifying conditions are met. These include where the child is attending the nearest suitable school and cannot walk there because of their disability, special educational needs or mobility problems. In this case the Council refused Mr X’s application as it said D was not attending her nearest suitable school and her move to School 2 was a result of parental preference. As the statutory guidance and caselaw referred to in paragraphs 14 and 15 above make clear, the Council may refuse transport on this basis in certain circumstances. The Council must have carried out a costs comparison. It must also name both the school the Council considers the nearest suitable school and the school the parents prefer, on condition that they provide the transport.
29. In this case, however, I have seen no evidence that the Council explained the position to Mr X and obtained his agreement to name School 2 in D’s EHC Plan on condition that he provided the transport. The Council named only one school in section I, School 2, with no transport conditions. So that school must be treated as the nearest suitable school.
30. I consider that the Council was at fault in failing to consider the law and guidance properly when dealing with Mr X’s application and appeal for help with home to school transport. Therefore its decision-making was flawed, resulting in it wrongly deciding D did not qualify for help with transport.
31. In response to our enquiries on the complaint, the Council readily accepted it was at fault. It confirmed School 2 should be considered the nearest suitable school as it was the only one named in the EHC Plan. The Council said it would now meet the cost of school transport for D.
32. I welcome this decision and the offer. But it is not a full remedy for the impact of the fault. Mr X has been paying for transport since D started at School 2 in April when she should have been entitled to help with transport from the Council. He has also experienced distress and anxiety and has had to put unnecessary time and effort into pursuing his appeal and complaint. I make further recommendations to remedy this injustice below.
33. I am also concerned that the Council may have refused transport for other pupils in similar circumstances. I asked the Council to provide details of others who may have been similarly affected, under the investigation powers referred to in paragraph 3 above. Alternatively I gave the Council the opportunity to offer to carry out an exercise to identify such cases itself. The Council has agreed to do so.

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Agreed action

34. To remedy the injustice to Mr X the Council has agreed that within the next two weeks it will write to Mr X to confirm its decision to meet the costs of transport and make the arrangements to do so.
35. Within one month of the final decision on the complaint the Council will also take the following action:
• apologise to Mr X for its flawed decision-making;
• reimburse his costs in providing transport since D started at School 2;
• pay him £250 to recognise his distress at having to fund the transport himself;
• pay him £250 to recognise his unnecessary time and trouble in pursuing his appeal and complaint;
• provide training or guidance to all relevant staff and appeal panel members about when a school named in an EHC Plan is considered to be the nearest suitable school for transport purposes, in line with the SEND Code of Practice and relevant caselaw.
36. The Council has also agreed it will carry out a review to identify other cases where it has wrongly refused to award help with transport in similar circumstances to Mr X’s. It will offer transport to those pupils and reimburse any expenses the parents incurred in providing transport. It will carry out this exercise within three months.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have found that the Council was at fault in the way it dealt with Mr X’s application and appeal for help with home to school transport for his daughter. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman