Summary: Mr and Mrs X complained about the Council’s refusal to provide home to school transport for their daughter, Y. We have discontinued our investigation on the grounds the matters complained about are closely related to a Tribunal appeal and we cannot achieve a worthwhile outcome.

The complaint

1. Mr and Mrs X complained about the Council’s refusal to provide home to school transport assistance for their daughter, Y. They said the Council had not been open and transparent in its decision-making and did not follow relevant law and guidance when making its decisions.
2. As a result of the refusal, Mr X has been driving for 3-4 hours per day since January 2023 to take Y to school. The family say that this, and related costs, amount to £1,000 per month. They have also suffered significant distress as they consider Y’s placement was put at risk by the refusal.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for an organisation review or appeal.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)
5. 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.

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How I considered this complaint

6. I considered:
• the information Mr and Mrs X provided, and spoke to Mrs X about the complaint;
• the information the Council provided in response to our enquiries, and information available on the Councils’ website;
• relevant law and guidance, as set out below; and
• our Guidance on remedies, available on our website.
7. Mr and Mrs X and the Council had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Education Health and Care (EHC) plans

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.
9. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.

Home to school transport

10. A Council must make such travel arrangements as it considers necessary to facilitate an 'eligible child' to attend their relevant educational establishment. The Council must provide this free of charge. (The Education Act 1996, section 508B).
11. Statutory Guidance: Home to school travel and transport guidance (the Guidance) (2014) says eligible children include those of compulsory school age, whose nearest school is more than three miles away (if the child is aged between 8 and 16) or where there is no safe walking route to school or where they cannot reasonably walk to school for health and safety reasons, associated with their special educational needs (SEN). For children with an EHC plan, the qualifying school will either be the school named in their plan, or the nearest of two or more schools named.
12. The Guidance says councils should have an appeals process and recommends that this should be a clear and transparent two stage process:
• Stage One: a review by a senior officer, and a detailed written notification of the outcome within 20 working days of the request: and
• Stage Two: a review by an independent appeal panel (within 40 working days of the request), which considers representations from both the parents and officers involved. The panel members should be independent of the original decision-making process but need not be independent of the council. The panel should provide a detailed written outcome within 5 working days setting out how the panel reached its decision.
13. Requests for an appeal should be made within 20 working days at each stage.
14. The Council has a two-stage appeal process for transport decisions:
• at stage 1, the transport decision will be reviewed by a senior officer and a decision will be sent within 20 working days;
• at stage 2, the case will be considered by a panel of senior officers, which has 20 working days to meet to consider the appeal and will send a decision within 5 working days of the panel meeting.
15. The Council’s policy says it will consider all the information provided when deciding whether the home to school transport policy has been applied correctly.

Case law – S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346

16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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 / 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))

What happened

22. Y, who has autism and suffers from anxiety, was attending school 1, a mainstream secondary school, which was named in her EHC plan.
23. Her parents were concerned she was not getting the support she needed at school 1 and asked for an urgent review of her EHC plan, which was held in January 2022. School 1 acknowledged Y had struggled with the transition, and agreed to seek support about how to meet Y’s communication and interaction needs. Mr and Mrs X asked for a change of placement, and said Y needed a specialist school. They wanted Y to attend school 2, a special school in another council area.
24. The Council considered the request at a panel in late January. It did not agree Y needed a specialist school. It recognised the difficulties in her first term at school 1 but its SEN team were working with the school to ensure there was appropriate support in place for Y. The panel also had concerns about Y boarding at school 2.
25. The Council issued a final amended EHC plan for Y on 23 February 2022. This named school 1 as the educational placement for Y. Mr and Mrs X appealed to the SEND tribunal against the naming of school 1. At the time they made the appeal school 2 was not able to offer a place to Y.
26. In late November 2022, school 2 offered Y a place from January 2023. The appeal to the SEND Tribunal was ongoing at this stage.
27. Council records state there was a discussion between officer 1 and Y’s parents on 7 December 2022. Mr and Mrs X say the costs of home to school transport were not discussed but they were advised they needed to apply for assistance, which they did the same day.
28. On 15 December, the Council sent the SEND Tribunal and Y’s parents a draft consent order and the latest EHC plan working document, showing the agreed plan, which named school 2 as the only school in section I. On the same day, the Council told Mr and Mrs X it had refused transport assistance because Y would not be attended the nearest suitable school.
29. On 19 December, the Council sent the SEND Tribunal and Y’s parents an amended EHC plan working document in which it named both school 1 and school 2. It agreed to name school 2 on the condition that Y’s parents agreed to be responsible for transport costs. In an email to Mr and Mrs X it said this had been discussed on 7 December, which they dispute.
30. On 22 December, Mr and Mrs X requested a stage 1 appeal. They said:
• school 2 was the only school named in the EHC plan working document submitted to the SEND Tribunal on the date it decided to refuse assistance;
• the law does not give the Council the option of naming an alternative school, just because it is nearer, it would have to show the parental preference was an inefficient use of resources; and
• school 2 could not be named as parental preference where the Council had not offered any other viable option.
31. On 4 January 2023, the Council rejected the stage 1 appeal. It said it had a duty to have regard to statutory guidance issued by the Department for Education. This said the qualifying school is the nearest of two or more schools named in an EHC plan. Its decision on 15 December 2022 was that the placement, school 2, was parental preference and not the closest suitable school. It said this was based on “clarification from the SEND team around the placement agreement”, which it said was set out in emails that had already been shared with Mr and Mrs X.
32. On 5 January, after taking legal advice, Mr and Mrs X agreed the consent order, including being responsible for transport costs, because this was the only way to secure the place for Y at school 2, which said it could not keep a place open for her until after the Tribunal hearing as it had a waiting list.
33. Mr and Mrs X requested a stage 2 appeal for the school transport on 16 February. The Council issued its stage 2 decision on 16 March, apologising for the delay in doing so, which it said was so it could explore all options and seek further advice. It said the appeal was considered by a panel of senior officers, which decided to reject the appeal and repeated the reasons given at stage 1.
34. In response to my enquiries, the Council:
• said it named school 1 on Y’s EHC plan in February 2022 because this was the school she was attending at the time and it considered school 1 could meet her needs;
• said it agreed to name school 2 on the basis that her parents were responsible for home to school transport;
• provided a copy of the consent order dated 6 January 2023, which stated it was of the view that school 1 was appropriate and could meet Y’s needs. It agreed to name school 2 at the request of Mr and Mrs X “subject to the parents being responsible for all transport costs associated with this during the entire period that [Y] was placed at [school 2]. Should [Mr and Mrs X] no longer be willing or able to provide transport for [Y] to [school 2] then [Y] shall attend [school 1]”.
35. Following an earlier draft decision, the Council provided evidence it considered the transport costs in June 2022, and that it provided information to the SEND Tribunal to show how it had considered the relative costs of the two schools when deciding school 2 was an inefficient use of resources. This information was shared with Mr and Mrs X who raised queries about it in December 2022.
36. Mr and Mrs X have told me the Council has decided to amend Y’s EHC plan following a further annual review but has delayed in issuing a draft amended plan for their comments. When a final amended EHC plan is issued, Mr and Mrs X will have a further right of appeal. Any delay in issuing the final amended plan delays them exercising that right of appeal.

My findings

37. Following the annual review in January 2022, the Council considered Mr and Mrs X’s request for a change of placement but did not agree Y needed a specialist placement. It issued a final amended plan in February 2022, naming school 1, a mainstream secondary school that Y was already attending. Only the SEND Tribunal can resolve a dispute about the placement.
38. During the appeal process, a place became available at school 2, and the Council agreed to name school 2 in the EHC plan working document. At that point, school 2 was the only school named and there was no condition about transport costs.
39. I have seen no evidence the Council advised Mr and Mrs X that if it named the parents’ preferred school it would not provide assistance with transport. Rather, it advised them to make an application for home to school transport, which it then declined on the basis school 1 was not the nearest suitable school.
40. Although its responses to the application for home to school transport do not show how the Council had applied the Dudley test, I have seen evidence this was shared with the SEND Tribunal and Mr and Mrs X in December 2022.
41. We are not an appeal body. Where we find fault in the way a decision was made in relation to home to school transport, we would usually ask a council to reconsider its decision.
42. We cannot make findings in relation to matters that are closely connected to matters considered by or under consideration by the SEND Tribunal. Therefore, I cannot make findings about the Council’s actions when conducting the appeal in this case, and I am mindful that the consent order specifically says Mr and Mrs X will bear the transport costs whilst Y attends school 2.
43. In this particular case, the Council is in the process of amending Y’s EHC plan. When it has issued the final amended plan, there will be a further right of appeal. It is therefore appropriate for Mr and Mrs X to exercise that right and for the SEND Tribunal to decide which is the nearest suitable school for Y.
44. On this basis, I propose to discontinue my investigation as I cannot achieve a worthwhile outcome.

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Final decision

45. I have discontinued my investigation on the grounds the matter complained about is too closely related to a Tribunal appeal and I cannot achieve a worthwhile outcome.

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Investigator's decision on behalf of the Ombudsman