Summary: Mr X complained the Council wrongly refused his application for school transport to the school named in his 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, fund and arrange the transport, reimburse Mr X’s expenses, and take the same action on other similar cases.

The complaint

1. Mr X complains about the way the Council has considered his application for home to school transport for his 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. 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 Mr X and the Council including the complaint correspondence, transport application and appeal documents.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

10. 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.
11. ‘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)

12. 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.
13. 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))
14. 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.
15. 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.
16. 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)
17. 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)
18. 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)

19. 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

20. 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.
21. The policy explains parents, including those of pupils with an EHC plan, are legally entitled to express a preference for a school, including a Grammar or Faith school. However, 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.
22. The 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.
23. The Council will fund transport to the nearest Grammar or Faith school for pupils of low income families where the distance measures between 2 and 15 miles.
24. The policy makes no reference to the Dudley test.

Key facts

25. Mr X’s child has an EHC plan and attends a Faith or Grammar school which, it is apparent from the transport appeal documents, the Council considers is not the nearest suitable school that can meet need.
26. The school is approximately seven miles away from Mr X’s home.
27. The EHC plan names only this school, although it states, ‘agreed as per parental preference’. The EHC plan does not name a second closer school where the Council has made arrangements for Mr X’s child to attend.
28. Mr X applied for home to school in February 2022, prior to his child transferring to secondary school in September 2022.
29. Mr X said:
• The school named in the Plan was too far away for his child to walk.
• His child could not use public transport due to the nature of their special educational needs and disability (SEND).
• The school had raised multiple concerns about his child’s behaviour and social difficulties travelling on the bus.
30. The Council refused the transport application because the family did not qualify for free transport to a Faith or Grammar school on income grounds.
31. Mr X appeal was based on his child’s mental and physical wellbeing and the risk to his child of using public transport.
32. The Council reviewed the application but again refused it:
• On the same basis as before, the family did not qualify on income grounds.
• Because the school was not named in the EHC plan as the only school which can meet needs, but as parental preference.
33. Mr X appealed to stage two. Again, he set out concerns about his child’s behaviour and disability. Mr X said the school was the nearest suitable school for his child’s age, ability, aptitude, and special educational needs. Mr X referred to evidence from a recent review of the EHC plan that alternative transport to school was needed.
34. The appeal panel refused the application. The Council’s case for appeal set out that Mr X’s child had not been placed at the school by the Council, but as parental preference. This evidence was accepted by the panel. The decision letter said Mr X’s child did not qualify on income grounds; although they had an EHC plan there was evidence needs could be met in a mainstream school, and they had not been placed in their current school by the Local Authority.

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 over statutory walking distance, Mr X’s child would be eligible for free home to school transport on the current wording of the EHC plan and has been at least since they started secondary school in September 2022.
37. There is no evidence the Council or appeal panel had available to it:
• Cost information for a second nearer school.
• Evidence a place was available at a nearer school.
• Evidence a nearer school was also suitable. Although Mr X specifically challenged the Council’s view alternative school(s) were suitable on appeal, I have seen no evidence the appeal panel explored this. It appears to have just accepted the Council’s representative’s case without seeing any supporting evidence.
• 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.

This is fault and casts doubt on the decision reached.

38. The Council’s policy makes no reference to the Dudley test / inefficient resources test. This is fault.
39. 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 Mr X disagreed the Council’s choice of school was suitable, or considered it was suitable, but his choice was not an inefficient use of resources, he would have a right of appeal to the SEND Tribunal when an amended final plan was issued.
40. Mr X’s complaint and appeal focussed on his child’s SEND’s needs and the Council’s failure to consider these. As the Council dismissed the application on a different, and incorrect, basis the Council did not get as far as considering the child’s individual transport needs. These are matters Mr X may need to raise in future in relation to the type of transport to be provided or if the Council amends and reissues the EHC plan.
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 fault I have identified.

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Agreed action

Within one month of my final decision:

42. The Council will apologise to Mr X and his child for failing to apply the correct legal test when amending the EHC plan and making the school transport decision.
43. The Council will agree to meet the costs of transport and make arrangements to do so.
44. The Council will repay Mr X transport costs he has incurred since September 2022.
45. The Council will pay Mr X £250 for his time and trouble bringing the complaint and for the injustice of not having his application and appeal properly considered.
46. If Mr X does not agree the Council’s proposed transport arrangements are suitable, the Council should provide Mr X with the usual appeal rights.

Within two months of my final decision:

47. 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.
48. 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:

49. The Council will 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.
50. The Council will provide us with evidence it has complied with the above actions.

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

51. 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 (this may require an individual assessment of the child’s ability to walk or of the type of transport that is suitable for their needs for each placement).
• Its view as to whether any additional cost of Mr X’s choice of school represents an inefficient use of public resources.
• Mr X’s right to appeal to the SEND Tribunal if he disagrees both schools are suitable or with the Council’s decision as to the efficient use of resources.

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Final decision

52. I have completed my investigation. 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 child. I am satisfied the agreed actions set out above will remedy the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman