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 is already in the process of reviewing whether other families have been similarly affected.

The complaint

1. Mr A complains about the way the Council declined his application for free home to school transport for his son, whom I shall to as B. B has an Education, Health and Care (EHC) Plan. Mr A says the Council:
• Did not follow its own timeframe for appeals, which meant it was impossible to make arrangements in time for the start of the school year.
• Ignored B’s special educational needs (SEN).
• Focussed only on distance and travel arrangements for B’s sister.
• Ignored the practicalities of getting B to school, due to B’s SEN he cannot walk to a local school.
• Failed to tell Mr X whether there were places available on a school bus that was operating.
• Failed to tell Mr X if there were places available at a closer school.
• Only offered a remedy of £250 for delay but did not alter the decision B was not eligible for transport.
2. Mr A says because of the alleged fault:
• The Council has caused a huge amount of stress to him and his partner.
• There will be a profound effect on B’s education, behaviour and mental health as he would lose his peer group if he had to change schools. Attending School X (the family’s preferred school) would provide consistency and routine which was important to B.
3. Mr A wants the Council to take the following action:
• Provide transport to their choice of school until B is able to travel independently.
• Change the policy from ‘nearest suitable school’ to a radius from the home.
• Provide chaperones on the public bus.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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.
7. 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)
8. 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

9. I have considered the transport application, appeal documents and B’s EHC plan.
10. 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
11. I have considered a recent Ombudsman decision which found fault by the same Council in similar circumstances. As a result of that decision, the Council agreed to review other cases where members of the public may have been affected by the same fault. This is explained further below.
12. Mr A and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
13. 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

14. 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 travel arrangements must be free of charge. 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;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

15. Section 508C Education Act 1996 provides councils with discretionary powers to go beyond their statutory duties and provide transport to children who are not entitled to fee transport under s.508B / Schedule 35.
16. 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.

17. 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))

18. 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))
19. 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))
20. 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.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
21. 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 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 name two schools, with the condition the parents provide transport to their choice of school. (Dudley MBC v S [2021] EWCA Civ 346)
22. 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.
23. 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)
24. 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

25. 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.
26. 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

27. In 2021 there was an annual review meeting for B’s EHC plan. Mr A wanted B to attend School X for secondary from September 2022.
28. In early 2022 Mr A applied for home to school transport to School X.
29. The Council refused on the basis parents had chosen a secondary school (School X) which was not the nearest suitable school; there was a nearer school (School Y). Both schools are special schools over three miles from Mr A’s home. Mr A appealed. The Council said a place was available at School Y, I assume this was at the time the EHC plan was updated / when the transport application was decided.
30. In April 2022 B’s EHC plan was updated to name both School X and School Y as suitable for secondary with School X named as the school B would attend on the basis parents were responsible for transport.
31. Mr A said that only School X was suitable for B’s SEN.
32. The Council’s transport decision was upheld at stage 1 in April / May.
33. Mr A appealed to stage two in May 2022. He considered the Council had not taken into account that B needed to attend School X due to his mental health and continuity with his primary school peer group. Mr A said the time taken to get a response to his transport appeal meant other schools were now full. Mr A said there was less than five minutes travel time between the two schools. While School Y was nearer by distance the route took longer to travel.
34. Notes of the stage two panel hearing show it was not held until mid-July 2022 and Mr A was told the scope of the hearing would be limited to whether the circumstances meant B should be an exemption to the policy. The panel did not reach a decision on the day as it decided, after discussing the case, it wanted to ask Mr A further questions. Mr A replied to these by email a few days later. Two weeks later the panel came back with a further question about whether B’s mother could drive, and whether Mr A’s eight-year-old daughter could walk to school unaccompanied and / or use the before and after school club. The panel then reconvened to consider Mr A’s replies.
35. In mid-August 2022 the Council provided a decision letter at stage two of the transport appeal process. The Council found the Council had correctly applied the law and policy in refusing support under s.508B Education Act 1996. The panel found the difference in distance in the two schools from Mr A’s home was three miles. The panel was satisfied Mr X had known that by not choosing the nearest suitable school the family would be responsible for transport.
36. The transport appeal panel said it was not its role to comment on the relevance of the relevant legislation or the Council’s policy.
37. The panel also considered Mr A’s arguments about difficulties getting his children to two schools and whether it should use its discretionary powers (s.508C). Mr A worked away frequently using the only car for work and so could not assist the children’s mother with getting the children to school. The children would have to travel with their mother by bus which meant B’s sister would have to be at school an hour before and after school without supervision as they could not afford wraparound childcare. B was not currently capable of travelling by public transport without an adult accompanying him.
38. The panel declined to provide discretionary support as it found the family’s circumstances were not so exceptional as to depart from the Council’s usual policy.
39. The Council did acknowledge there had been delay in the appeal process, with the decision issued just before the start of term. It offered Mr A £250 as a remedy for the impact of this delay.

Analysis

40. Mr A wants:
• Changes to the policy free transport is only available to the ‘nearest suitable school’ to a radius from the home.
• The Council to provide chaperones on public buses.
41. These are not outcomes the Ombudsman can achieve. S.508B Education Act 1996 does not require councils to provide free transport to a wider range of schools or provide chaperones on public transport. It is not for the Ombudsman to make recommendations that alter the law or statutory guidance.
42. I find that at no stage of the transport application, transport appeal, or amendment of the EHC plan did the Council compare the costs of B attending School X and School Y applying the legal test set out above. This was fault and casts doubt on the decision reached not to award transport support. It is not necessary for me to go on to consider Mr A’s other arguments for school transport, because the Council will need to review the decision in any event.
43. The Council has acknowledged the same fault in another recent investigation by the Ombudsman. Following our decision in that case it agreed to review other families that may have been similarly affected. Mr A’s case would have been considered as part of that review even if he had not approached the Ombudsman.
44. The wording in the stage two appeal decision refers to the Clerk or panel members advising Mr A the scope of the hearing was limited to whether the circumstances meant B should be an exemption to the policy. This was incorrect as the panel also had to consider if the policy was lawful and applied correctly.
45. Mr A did have a right of appeal to the SEND Tribunal if he considered that only School X was suitable for B’s SEN needs and School Y was unsuitable. Appeal rights last for two months after a final EHC plan is issued. As the Council did not inform Mr A he could appeal where transport costs were in issue, I consider it is reasonable that Mr A did not use his appeal rights to the SEND Tribunal. The delay in the processing of Mr A’s transport appeal also meant he did not know transport was going to be refused until after his appeal rights to the SEND Tribunal had expired.

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Agreed action

Within four weeks of my final decision:

46. The Council will apologise to Mr A and B for failing to apply the correct legal test in their transport application.
47. The Council will review its decision on home to school transport, and the naming of School X on the EHC plan only with the caveat parents are responsible for transport costs. This does not mean the Council will make a different decision, but the Council must set out for Mr A in its fresh decision:
• The costs to the Council of B attending School X
• The costs to the Council of B attending School Y
• The transport arrangements available if B attended School X, including costs if these were provided free by the Council
• The transport arrangements available if B attended School Y, including costs if these were provided free by the Council.
48. If the overall costs to School X are higher than School Y, whether the additional costs represent an inefficient use of resources for the Council, taking into account any stated benefit put forward for attending School X.
49. If the Council’s decision is that attendance with free transport to School X does represent an inefficient use of resources, it will:
• Provide Mr A 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.
50. If on review the Council overturns its previous decision and decides to provide free home to school transport for B to School X it will consider providing Mr A with a financial remedy for the period when, but for the fault, free transport would have been in place. If Mr A and the Council cannot agree an appropriate financial remedy, then Mr A may bring this matter back to the Ombudsman for determination.
51. 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.
52. The Council should provide us with evidence it has complied with the above actions.
53. As a result of the previous Ombudsman investigation on the same issue the Council has already agreed to make service improvements including:
• Reviewing the wording of the transport policy and internet information to remove 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 above.
• Re-training officers / panel members.
• Ensuring officers obtain costs for both placements, including transport, and carry out the required balancing exercise both when naming a school in the EHC plan, and when deciding whether free transport should be provided.
• Ensuring 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.
• Complete a review of other cases for children with EHC plans and 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.

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Final decision

54. 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 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 agreed actions set out above are an appropriate remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman