Summary: The Council failed to apply the correct legal test when deciding an application for free home to school transport for a child with an Education, Health and Care Plan. The complainant says this has had an adverse financial impact and caused his son anxiety. The Council will review its decision, consider if financial redress is due, apologise and provide a time and trouble payment. The Council will also review whether other families have been similarly affected.

The complaint

1. Mr X complains about the Council’s decision to decline to provide free home to school transport for his child, whom I shall refer to as Y, to the secondary school they prefer. Y has special educational needs (SEN) and an Education, Health and Care (EHC) plan. Mr X says the Council has not considered all relevant information in deciding a nearer school was suitable, and in refusing to fund transport to his choice of school. Mr X says the Council’s decision has caused financial difficulty as he is a single parent who needs to get children to different schools and Y cannot travel independently due to his SEN.

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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 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)

• 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)

3. 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.

• 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)

4. 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)

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How I considered this complaint

5. I have considered the transport application, appeal documents and Y’s EHC plan.

• I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014 and associated Regulations and Code of Practice
• Department for Education ‘Home to School transport guidance’, July 2014 (‘The Guidance’)
• Ombudsman’s Focus Report ‘All on Board? Navigating School Transport Issues’, 2017

6. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

• 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

7. A child with special educational needs 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

8. When a first or amended draft EHC plan is issued the child’s parents, or the young person, have the right to express a preference that the Council name a particular school. (Children and Families Act 2014, s.38(2))

9. Where the parent or young person requests a maintained school then the Council should name that school on the EHC plan unless:
• It is unsuitable for the age, ability, aptitude or SEN of the young person, or
• The attendance of the young person at the requested school is incompatible with:
1. The provision of efficient education for others, or
2. The efficient use of resources. (Children and Families Act 2014, s.39(3))
10. The Courts have found that the mere fact a parental / young person’s preference is more expensive is not an automatic barrier to the efficient use of resources test. The Council or Tribunal must balance the statutory weight given to the parent / young person’s preference against the extra cost when deciding whether it is an inefficient use of resources. The Council or Tribunal must then, as a second stage, balance the extra cost against any extra benefit it is claimed the more expensive placement will bring to the young person. (Essex CC v SENDIST [2006] EWHC 1105 (Admin))

• Where the parent and the Council prefer different placements under s.38 Children and Families Act, but attendance at the parent preference would lead to additional transport costs, the Court of Appeal has set out a 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 (that is whether 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, can the council can name two schools, with the condition the parents provide transport to their choice of school. (Dudley MBC v S [2021] EWCA Civ 346)

11. Where a parent disagrees that the school named in the EHC plan by the Council is suitable, or consider it is suitable but consider their preference does not represent unreasonable public expenditure, they can appeal to the SEND Tribunal for a determination. The Tribunal has the power to replace the Council’s choice of school for the parent’s choice and to require the Council to fund transport.

• Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)

12. The Guidance recommends councils adopt the following appeals process:
• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to the Ombudsman. (Annex 2 of the guidance)

Council’s transport policy

13. The Council’s policy says getting a particular school place does not give a right to free transport. Where a child attends a school which is not the catchment or nearest school with places available the general principle is they are not entitled to travel assistance and families will have to arrange and pay for their child’s travel.

• For children with EHC plans the Council policy says it applies the same general eligibility criteria and pupils entitled to help:
• would need to live beyond a required walking distance, or
• cannot be reasonably expected to make the journey safely (even when accompanied),

and must be attending the nearest suitable school with places available as determined by us.

What happened

14. Y was transferring to secondary school in September 2022 and his EHC plan was updated to name his next school.

• Mr X asked the Council to name a school (School A) on Y’s EHC plan which was not the nearest school. School B was the nearest School. Mr X put forward reasons why he considered School A was suitable for Y’s SEN, and School B was not. Mr X’s reasons included that Y had changed school once already, that most of his peers from his primary school were moving to School A, and that School A had educational and social advantages over School B.

15. The Council wanted to name School B but agreed to name School A on the EHC plan as parental preference. It advised Mr X as it did not consider School A the nearest suitable school, he would be responsible for transport costs.

• Mr X appealed the decision through the Council’s home to school transport appeal process. At both stages the Council’s original decision was upheld. The stage two panel said that in line with the home to school transport policy, transport is awarded to the nearest appropriate setting as detailed within the EHC plan. The panel said it was ‘sympathetic to the concerns and anxieties’ Mr X raised about Y attending School B but ‘it was not felt that these resulted in exceptional circumstances which would enable the panel to move away from the policy in place. As such transport could only be provided to School B, which is deemed nearest appropriate in Y’s EHC plan’. The panel said that both schools had been consulted during the amendment of the EHC plan and had told the Council they could meet Y’s needs. The stage two panel found ‘In line with transport policy…transport is only available to the nearest appropriate setting’.

Analysis

16. I find the Council’s transport policy is an oversimplification of the law and fails to include a comparison of costs when there are two suitable schools (the Council’s preference and the family’s preference). This is fault.

• I have seen no evidence the Council considered comparative costs:
• When it amended the EHC plan
• When it considered the transport application
• At stage one of the transport appeal
• At stage two of the transport appeal

This is fault.

17. The caselaw set out above (Dudley MBC) requires councils to consider whether attendance at a parental / young person preference school represents an efficient use of resources. This requires the Council to apply the three tests set out above.
18. The Council has made a determination both schools are suitable as this is referred to in the Stage two panel letter. This is stage one of the test.
19. If both schools are suitable, stage two of the test is that the cost of providing transport to both schools should be established and taken into account when considering whether the parent's choice is incompatible with the efficient use of resources. There is no evidence the Council has done this as the appeal decision letters make no mention of the costs of transport to School A compared to School B. Mr X told me the schools are only a mile apart and there are buses from his home to both schools. This implies there may be no difference in cost to the Council if Y attends School A with free transport compared to attending School B.
20. Even if the cost were slightly higher the Council would still need to apply the third part of the test which is whether the additional cost is so significant as to represent an inefficient use of resources when balanced against any other benefits of Y attending School A rather than School B. This would require consideration of the benefits Mr X set out in his previous representations on appeal, including continuity and peer group.
21. Only where all three parts of the ‘Dudley’ test have been applied can a council name two schools in the EHC plan with the condition the parents provide transport. Mr X would also have a right of appeal to the SEND Tribunal against any decision School A was an inefficient use of resources. We would expect complainants to use a right of appeal, but as Mr X was not provided with correct information about the correct legal test, or that he had a right of appeal when transport was in issue, I find it was reasonable for him not to have used it.
22. The wording in the stage two appeal decision refers to panel members limiting their consideration to whether the Council had correctly applied its policy. This is fault. The panel’s role is not just to check whether officers had applied the policy but to check that officers had applied the correct law. I would have expected senior members of staff and panel members to have known the law as it applies to children with EHC plans and to have applied the relevant legal test even though the Council’s policy fails to reference or comply with it.
23. I am concerned that as Council officers and panel members do not appear to be aware of the correct legal test similar errors may have been made on other cases.

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Agreed action

Within six weeks of my final decision:

24. The Council will apologise to Mr X and Y for failing to apply the correct legal test in their transport application.

• The Council will review its decision on home to school transport, and the naming of School A on the EHC plan only with the caveat Mr X is responsible for transport costs. This does not mean the Council will make a different decision, but the Council must set out for Mr X in its fresh decision:
• The costs to the Council of Y attending School A
• The costs to the Council of Y attending School B
• The transport arrangements available if Y attended School A, including costs if these were provided free by the Council
• The transport arrangements available if Y attended School B, including costs if these were provided free by the Council
• If the overall costs to School A are higher than School B, whether the additional costs represent an inefficient use of resources for the Council, taking into account any stated benefit put forward by Mr X and Y for attending School A.

25. If the Council’s decision is that attendance with free transport to School A does represent an inefficient use of resources, it will:
• Provide Mr X with a right of appeal to stage one and two of its transport appeal process
• Re-issue the EHC plan so Mr X gains a fresh right of appeal to the SEND Tribunal if he wishes to challenge the Council’s view.
26. If on review the Council overturns its previous decision and decides to provide free home to school transport for Y to School A it will consider providing Mr X with a financial remedy for the period when, but for the fault, free transport would have been in place. If Mr X and the Council cannot agree an appropriate financial remedy, then Mr X may bring this matter back to the Ombudsman for determination.
27. The Council will pay Mr X £150 for the time and trouble in bringing his complaint and his injustice in not having his case properly considered.

Within twelve weeks of my final decision

28. The Council will review its transport policy and training of officers / panel members to ensure that where a child with an EHC plan applies for transport and expresses a preference for a school which the Council does not consider to be the nearest suitable school, it applies the correct legal test. Officers should obtain costs for both placements, including transport, and carry out the required balancing exercise both when naming the school, and when deciding whether free transport should be provided.
29. The Council will redraft its transport policy and website information to remove the incorrect information that a child with an EHC plan can never receive free transport to a school which is not the nearest suitable school and replace it with the more nuanced position set out in the legal cases quoted above.
30. The Council will ensure its transport decision letters explain the relevant law to families, show how the legal test has been applied, and advise families they have a right of appeal to the SEND Tribunal if they disagree with the Council’s view on suitability of school or efficient use of resources.

• The Council will advise the Ombudsman of the service improvements it has made.

Within four months of my final decision

31. I consider that a member of the public who has not complained to the Ombudsman may have suffered an injustice as a result of faults identified in this investigation. (Local Government Act 1974, section 26D and 34E, as amended)

• The Local Authority will review, with immediate effect, all Education Health and Care Plans (EHCPs) issued this academic year in respect of transport matters where two schools have been named, with the parent’s choice of school named on the condition they arrange and fund transport.  Remaining EHCPs will be reviewed at annual review, phase transfer or at such point where issues are apparent regarding the efficacy of the child’s placement as part of an interim/emergency Annual Review.

32. The Council will review these cases to ensure:
• There has been a determination both schools are suitable
• There has been a comparison of costs, including transport costs to both schools
• There has been a determination whether any additional costs represent an inefficient use of resources.
33. Where the Council identifies cases where the correct legal test has not been applied, and parents have wrongly been asked to fund transport, it will make fresh transport decisions and offer financial redress for any injustice that has arisen.

• The Council will provide a written report to the Ombudsman setting out the outcome of the review of EHC plans issued this academic year.

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Final decision

34. I have completed my investigation. There was fault by the Council in failing to apply the correct legal test when a child with an EHC plan applied for free home to school transport to a school that was slightly further away than the nearest suitable school. The Council failed to compare the costs (including transport) to the two placements and failed to reach a determination whether the additional cost, if any, to travel to the further away school represented an inefficient use of public resources. I am satisfied the recommended actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman