Summary: Ms A complained the Council wrongly refused her application for school transport to the school named in her child’s Education, Health and Care Plan on the grounds they were not attending their nearest suitable school. The Council’s decision-making was flawed because it did not take account of relevant law and guidance. The Council should have treated the parental preference school as the nearest suitable school because it was the only one named in the Plan. The Council will apologise, review Ms A’s application, and take action to remedy other similar cases.

The complaint

1. Ms A complains about the way the Council has considered her application for home to school transport for her child who has an Education, Health and Care (EHC) plan.

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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. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs (SEN). We refer to it as the SEND Tribunal in this decision statement.
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)
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)

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How I considered this complaint

6. 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, March 2017.
7. I have considered information provided by Ms A and the Council including the complaint correspondence, transport application and appeal documents.
8. I have also spoken to Ms A by telephone.
9. Ms A and the Council had an opportunity to comment on my draft decision. I have taken into account any comments before making a final decision.
10. 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

11. 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 made and provided 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.
12. ‘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)

13. 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.
14. 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 in Section I of the Plan. (Children and Families Act 2014, s.38(2))
15. Where a child has an EHC plan, there are exceptions to the usual rule that home to school transport will not be provided if a parent chooses a school which is not the nearest school.
16. 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.
17. 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 (‘the Dudley test) that councils should apply when deciding whether councils 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. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)
18. 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)
19. Government statutory 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 us. (Annex 2 of the guidance)

20. Where two schools are named in the EHC plan with the condition the parent is responsible for transport costs, then if a parent disagrees with this decision, they can appeal to the SEND Tribunal. The Tribunal cannot determine a child’s eligibility for transport, but it can consider the whole cost of the placement, including transport costs, and decide if the parental choice is incompatible with the efficient use of public resources. It can also decide whether the Council’s choice is a suitable school. The Tribunal has the power to name the parent’s choice as the only school on the EHC plan and so become the qualifying school for transport eligibility.

Council’s policy

21. The Council’s policy explains that for pupils with an EHC plan the nearest school will be either:
1. The mainstream school closest to the home address, or an alternative mainstream school where the Local Authority has named this in the EHC plan as the only school suitable to meet the child’s needs, or
2. A special school or unit in which the student has been placed by the Local Authority and which is named in the EHC plan.
22. The policy explains if, because of parental preference, a child attends a school other than the nearest school, free transport will not be provided. Instead, parents will be responsible for making their own transport arrangements and for all transport costs for the whole time the child is at school.
23. The policy says provision of transport for pupils with EHC plans will be considered on an individual basis and provided where necessary either:
• Where the distance to the nearest school means they qualify for free transport, or
• Where the distance is less than statutory walking distance but the child is unable to safely walk the distance because of a physical or other disability, even if accompanied by a responsible adult. Further consideration will be given to the availability of a responsible adult to accompany the child to school where there is more than one primary age child in the family who may be attending a different school.
24. The policy makes no reference to the Dudley test.

Key facts

25. Ms A’s child has an EHC plan and attends a school which, it is apparent from the transport appeal documents, the Council’s consider is not the nearest suitable school that can meet need.
26. The school is approximately 2.7 miles away from Ms A’s home. While this is within statutory walking distance Ms A told me her child’s disability means they cannot safely walk this distance.
27. Ms A checked the wording of the EHC plan for me as this had not been provided by the Council with the appeal documents. Ms A told me the EHC plan names only the school her child attends, although it states this is on ‘parental preference’ grounds. Ms A confirmed to me the EHC plan does not name a second closer school where the Council has made arrangements for her child to attend.
28. Ms A applied for home to school in February 2022, prior to her child transferring to secondary school in September 2022. Ms A’s child travels to school by public bus, so Ms A was requesting a free bus pass.
29. The Council refused the transport application because the family did not qualify on income or distance grounds and the child was not attending their nearest suitable school, but a school allocated via parental preference.
30. Ms A appealed setting out arguments why she considered only the parental preference school was suitable for her child’s needs. The Council refused the application on the same basis as before. It said there were three nearer mainstream schools and the school named in the EHC plan had ‘not been named as the only school suitable to meet the child’s needs due to any special educational needs requirements, it has only been noted as parental preference’.
31. Ms A was invited to appeal to stage two setting out why her preference was the most appropriate school and why her child was unable to attend a closer one. Ms A did so, providing additional evidence and professional support for her choice. Ms A explained why the specialism and curriculum of her preference school supported that it was the only school that could meet need.
32. The appeal panel notes simply show the refusal box has been ticked with a note ‘parental preference, not on low income, not placed by LA’. The notes do not record whether the panel discussed whether the nearer schools were suitable, or the evidence Ms A provided.
33. The appeal decision letter stated the panel had ‘considered everything provided but concurred that [Ms A’s child] is not attending the closest school…and although [Ms A’s child] does have an EHCP, evidence supports needs can be met in a mainstream setting and… has not been placed…by the Local Authority’.
34. Ms A told me she considers there are strong arguments why the parental preference school is the nearest suitable school and other nearer schools would not be suitable. She says the curriculum and specialism of the current school is in line with her child’s ‘special interests’ and therefore they are more engaged and independent in their learning than when they were at primary school. Ms A says there were lessons her child refused to access at primary because they did not match their interests; this meant a bespoke timetable and extra staffing and resources had to be allocated. Ms A says while things have still been ‘bumpy’ at times, at the current school, she considers more support (and funding) would be required to support her child at a school that did not have a curriculum focus that matched her child’s particular interests. Ms A said if the current placement failed (there have been fixed term exclusions and requests for more funding by the school) then it was likely her child would need to move not to a local school, but to a more specialist placement.

Analysis

35. Only one school is named in the EHC plan. This means the parental choice school is the nearest suitable school for transport eligibility because no other school is named.
36. As the school is under statutory walking distance, Ms A’s child would need to be assessed for transport on SEN/mobility/disability grounds to be eligible for free transport. Ms A is seeking a bus pass for public transport.
37. I have found there is no evidence the Council or appeal panel had available to it:
• Cost information for nearer schools.
• Evidence places were available at nearer schools.
• Evidence nearer schools were considered suitable for Ms A’s child’s particular needs when the EHC plan was issued. Although Ms A was invited to submit evidence for the transport appeal panel to reconsider suitability of the parental preference school compared to other schools, I am unclear why this was the case. This would be a decision that would have to be made by the EHC plan team, not transport decision makers, and the EHC plan could only be altered as part of a statutory review of the EHC plan. There is also no evidence the appeal panel did explore Ms A's representations about the suitability and merits of various schools.
• Evidence the Dudley test was applied to determine if the parental choice represented an inefficient use of public resources considering transport costs to each placement. There is no evidence cost information was collected or available to any of the decision makers. I would have expected to see reference to costs of each placement and the cost of the bus pass in the Council’s appeal case and decision letters, but these are not mentioned.

This is fault and casts doubt on the decision reached.

38. The decision letter said all evidence had been considered but the evidence supported Ms A’s child could attend a mainstream setting. It was not in dispute Ms A’s child could attend a mainstream school; this is the type of school they are attending. I assume the panel meant that there was evidence to support other nearer mainstream schools were also considered suitable for her child’s needs. However, there is no reference to what this evidence was, or why it was preferred to Ms A’s evidence about suitability. In the absence of evidence to the contrary, it would appear the panel has unquestioningly accepted the view of the Council’s representative. It seems likely the panel stated it had seen evidence about suitability of nearer schools when it had not. This is fault.
39. The Council’s policy makes no reference to the Dudley test / inefficient resources test. This is fault.
40. It is open to the Council to review the EHC plan and add the name of a nearer school it considers suitable, but the Council would need to evidence that a place was available, provide cost information and show that it had considered the inefficient resources test. In this scenario, if Ms A disagreed the Council’s choice of school was suitable, or considered it was suitable, but her choice was not an inefficient use of resources, she would have a right of appeal to the SEND Tribunal when an amended final plan was issued. We would expect her to use this appeal right.
41. I have exercised discretion under Section 26D Local Government Act 1974, to extend my investigation because I consider other families, who have not complained to the Ombudsman, may also have been affected by the same fault.

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Agreed action

Within one month of my final decision:

42. The Council will apologise to Ms A and her child for failing to apply the correct legal test when amending the EHC plan and making the school transport decision.
43. The Council will review Ms A’s child’s eligibility for home to school transport on the basis the current EHC plan names only one school, which is therefore the qualifying school for transport eligibility. If the Council decides Ms A’s child is eligible for transport help, it should refund transport costs Ms A has incurred since September 2022. If the Council decides Ms A’s child is not eligible, or Ms A disagrees with the nature of transport offered, the Council should provide the usual transport appeal rights to Ms A against its decision.
44. The Council will pay Ms A £250 for her time and trouble bringing the complaint and for the injustice of not having her application and appeal properly considered.

Within two months of my final decision:

45. The Council will provide the Ombudsman with evidence it has provided training and updated guidance to all relevant staff (SEND and transport teams, appeal members) on how to apply the Dudley test for pupils with EHC plans.
46. The Council will review that its information for parents whose children have EHC plans references the Dudley test and they are signposted to accurate information about transport at the time they need to express a preference for a particular school. The information should advise parents of their right of appeal to the SEND Tribunal if they disagree with the Council’s decision on naming two schools or a decision on inefficient use of resources.

Within three months of my final decision:

47. The Council will identify other cases where it has wrongly refused to award help with transport in similar circumstances to Ms A’s. It will offer transport to those pupils and reimburse any expenses the parents incurred in providing transport.
48. The Council will provide us with evidence it has complied with the above actions.

If Ms A’s child’s EHC plan is amended in future to also name a second nearer school

49. The Council must apply the Dudley test and provide at the review / draft plan stage a written decision setting out:
• Why it considers the second nearer school to be suitable.
• Evidence there is a place available at the nearer school at the relevant time.
• The cost of both schools including transport costs.
• Its view as to whether any additional cost of Ms A’s choice of school represents an inefficient use of public resources.
• Ms A’s right to appeal to the SEND Tribunal if she disagrees both schools are suitable or with the Council’s decision as to the efficient use of resources.

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Final decision

50. I have completed my investigation. The Council was at fault in the way it dealt with Ms A’s application and appeal for help with home to school transport. I am satisfied the agreed actions set out above remedy the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman