Summary: Mrs X complained the Council wrongly refused her application for school transport for her son to the school named in his Education, Health and Care Plan. We have found fault in the way the Council considered the application and applied its policy of parental preference. The Council will apologise, make payments for the uncertainty caused and the financial costs, reconsider Mrs X’s request to change the transport option agreed and take action to prevent reoccurrence.

The complaint

1. Mrs X complained the Council wrongly refused her application for school transport for her son, C, to the school named in his Education, Health and Care (EHC) Plan.
2. She says this means she has either had to transport her son to school which takes considerable time and aggravates her existing health conditions or incur extra costs to pay for a taxi. She says the Council’s offer to pay mileage, and backdate this, only goes back to September 2022 not March 2022 when she first made her enquiries.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. 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. ‘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)

9. 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.

Council’s transport policy

10. The Council says it will name two schools where the parents have chosen a school that is further away than the nearest suitable school. It states it will not make travel arrangements to the school further away. It states it will consider whether funding transport to the further school would be an efficient use of resources.
11. Further it says where one school is named that is the parent’s preferred school the Council may decide the parent should fund some or all of the transport costs.
12. The policy says when free travel arrangements are agreed, it will choose the suitable option ensuring it is sustainable, promotes good health and independence. The options are:
• Mileage allowance.
• Public transport pass.
• A specifically contracted bus.
• Personal walking assistant.
• A walking bus arrangement.

Key events

13. C has autism and has an EHC plan in place. The plan, issued in February 2022, named a specialist school.
14. In early March 2022 Mrs X wrote to the Council to explain that she would like to claim mileage for taking C to and from school. C began attending his special school in late March 2022.
15. The Council responded saying if a school chosen by the parents and named in the EHC plan is not the nearest suitable school the child will not be eligible. The Council stated C was attending a parental preference school so was not entitled to mileage. The Council suggested Mrs X consider an alternative placement if she was struggling with transport.
16. In October 2022 Mrs X completed a home to school transport support form requesting transport for C as the school was too far to walk to. She confirmed that C had an EHC plan and was attending the only school named in the plan.
17. The Council denied Mrs X’s request for transport assistance. It again stated that C was attending a school that was a parental preference. It stated parental preference schools are named in the EHC plan on the condition that the parent pay the cost of transport.
18. Mrs X appealed the decision in mid-October. She argued that C’s school was the nearest suitable school and there was no nearer suitable school. She stated the Council’s special needs team could confirm this. On this basis she believed he was entitled to home to school transport. She explained C could not travel independently because of his needs. She stated her medical conditions meant she suffered from extreme fatigue and the time she had to spend driving was significantly impacting her health.
19. The Council issued its decision to Mrs X’s appeal in early January 2023. It stated C’s educational psychologists’ report had noted his needs could be met in a mainstream school with a clear understanding of autism. It stated the Council had agreed to name C’s school on the basis it was the parents preferred choice. It said Mrs X was told transport would not be provided as C’s needs could be met in a mainstream school.
20. In mid-January the Council held an appeals panel meeting to review Mrs X’s request for home to school transport. Mrs X explained that, during the EHC plan review, the Council had enquired with other schools, but they were either unsuitable or were full and could not offer a place to C. She noted the EHC plan for C did not say any requirement for the parents to pay for transport and this had never been discussed with her. She also stated that she believed he was eligible under law as the school was named unconditionally in the EHC plan and no other school was named.
21. The panel considered the Council’s policy, and that it stated parents should pay for transport to a parental preference school. It decided C’s school was the parents’ preferred choice as Mrs X had suggested it in December 2021. However, it agreed to award travel assistance until July 2023 on the basis there were no available places at closer schools that could meet C’s needs. It agreed to repay the costs Mrs X had incurred from October 2022 onwards and provide a travel budget of £55.80 per day.
22. In March 2023 Mrs X emailed the Council explaining that C’s medical conditions meant that he would be in a wheelchair. She also explained, with supporting medical evidence, her medical conditions which are affecting her ability to drive. She said she had enquired and found a local taxi service that could transport C in his wheelchair at a cost of £140 per day.
23. The Council responded in June 2023. It explained it did not consider the evidence showed that Mrs X could not support C’s travel to school. It said therefore it would continue to provide a travel budget.
24. Mrs X says that she now pays a local taxi service to take C to school in the morning as with her health conditions she feels unable to do two trips a day. She says this costs her £70.

Findings

25. From Mrs X’s first request in March 2022 until January 2023 the Council said that C was attending a school of parental choice. However, it also accepted on several occasions there was only one school listed in C’s EHC plan.
26. As the Council only listed one school in C’s EHC plan that is his nearest suitable school. This is regardless of who recommended it during the EHC plan review. The Council was at fault for failing to correctly consider Mrs X’s application for home to school transport.
27. The Council’s actions meant that Mrs X has incurred the cost of transporting her son to school. The Council has agreed to pay the mileage costs from October 2022 onwards. This offer does not recognise when Mrs X first sought the Council’s assistance in March 2022. It should pay the mileage costs from when C began attending the special school, in view of when it first incorrectly rejected Mrs X’s request.
28. In October 2022 Mrs X raised concerns about her ability to provide transport for C due to her health conditions. The Council’s policy says it will consider sustainability and promote good health when deciding the appropriate transport. Although the Council has noted Mrs X comments, I have not seen evidence of the Council considering Mrs X’s health conditions and whether this would affect the transport option agreed. There is no explanation as to why it considered the best transport option remained a mileage allowance. The Council has not acted in line with its policy, and this is fault.
29. Mrs X has been left with a feeling of uncertainty because of the Council’s failure to consider its policy and its policy not being in line with the guidance. She is unsure whether she has had to bear the inconvenience for longer than necessary. She is also frustrated she may have had to pay additional cost for transporting C to school via taxi unnecessarily.

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Agreed action

30. Within one month of the final decision the Council will:
• Apologise to Mrs X for its failure to correctly consider her request for school transport and the uncertainty this has caused.
• Pay Mrs X £100 for the distress caused by the delay in correctly assessing her request.
• Pay Mrs X mileage costs, of £55.80 per day, from the point C began at the special school in March 2022.
• Carry out a review of Mrs X’s request to alter the agreed transport option in line with the policy.
31. Within two months of the final decision the Council will:
• Review its transport policy and ensure it is in line with the position set out in S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. I have found fault leading to injustice. The Council will take action to remedy the injustice and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman