Summary: Ms X complained on behalf of her child, Child Y, the Council wrongly refused to provide home-to-school transport to attend the only school named in Child Y’s Education, Health and Care (EHC) Plan. The Council was at fault. The Council said there were closer schools which Child Y could attend but had not named these in Child Y’s EHC Plan. The Council will arrange a fresh appeal panel with different panel members to consider the proper tests set out in law and statutory guidance, and if successful pay Ms X’s transport costs.

The complaint

1. Ms X complained on behalf of her child, Child Y. She said the Council wrongly refused to provide home-to-school transport to attend the school named in Child Y’s Education, Health and Care (EHC) Plan, because it said there was a nearer suitable school. Ms X said the Council did not consider Child Y’s disability or mobility problem and caused her time and trouble and frustration. Ms X said the Council should pay for the school transport costs and apologise.

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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 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) If we find there is fault in the way it made its decision that may have affected the outcome, we usually ask the organisation to make the decision again, following the correct procedure.
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 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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How I considered this complaint

6. I spoke to Ms X about her complaint and considered the information she provided.
7. I considered the information the Council provided.
8. I considered the Council’s policies and relevant law and guidance and the Ombudsman’s guidance on remedies.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Home to school transport

10. Councils 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; and
• children living within walking distance of the school but who cannot walk to school because the route is unsafe.
12. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied. If a council says a child would be able to walk if accompanied, it must consider the reasons why a parent may say they are unable to accompany their child, or make other suitable arrangements for their journey, and decide based on the circumstances of each case. It should take account a parent’s disability or mobility problem when deciding if it is reasonable to expect them to accompany their child.
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. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
18. Government statutory guidance recommends councils adopt the following appeals process:
• Stage 1: review by a senior officer.
• Stage 2: 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.

The Council’s transport policy

19. The Council’s ‘Education Travel Assistance’ policy says: “The nearest suitable school for transport purposes is the nearest suitable school designated by Bromley Council’s EHCP Coordinator. Parents have the right to consider other schools which may also be suitable, the Council will have regard to parental preference and meet this where appropriate. However, parents and carers will need to be mindful that choosing an alternative school may impact eligibility for support with transport, if the school is further away, and may result in additional avoidable costs to the local authority”.
20. “Where parents are considering a school further away than an alternative being proposed by Bromley Council, the co-production process will provide them with clear and timely information about the travel implications so that they can express an informed preference and understand they will most likely be responsible for getting their child to school, if they chose a school other than that regarded as the nearest suitable school by the Council”.

What happened

21. Child Y has special educational needs including Autism and hypermobility (joint pain). Child Y has attended a mainstream primary school, School 1 for several years. When Child Y started at School 1, Child Y did not have an Education, Health and Care (EHC) Plan and was admitted through the mainstream admissions process.
22. In early Summer 2023 the Council issued Child Y’s draft EHC Plan. Child Y’s mother, Ms X, said she did not give the Council a school preference and the Council only considered School 1 for Child Y. In early August 2023, the Council issued Child Y’s final EHC Plan and named School 1 in Section I. The EHC Plan did not name an alternative school in Section I. The EHC Plan did not include any agreements on parental transport funding or transporting Child Y to School 1. Ms X said the Council did not communicate with her about school transport implications for School 1.
23. School 1 is not the nearest school to Child Y’s home and is just over a mile away from their home address.
24. Ms X transported Child Y to and from School 1 since they started at the school. Ms X said due to Child Y’s mobility needs and autism diagnosis they could not go on a bus or walk to School 1. Ms X also has medical conditions and could not walk to School 1 with Child Y.
25. Section B of Child Y’s EHC Plan, explained Child Y’s sensory and physical needs. It said because of joint pain, Child Y ‘is unable to walk or run more than 10 to 15 minutes and complains of pain on their knees and feet’. Child Y’s EHC Plan also said Child Y’s transition between home and school was difficult and caused Child Y anxiety and they found it hard to control their emotions.
26. In early August 2023 Ms X applied to the Council to receive school transport to School 1 for Child Y, to start in September 2023. Eight days later the Council refused the application, it said Child Y was not attending the closest mainstream, school.
27. The same day, Ms X challenged this decision. She said:
• the Council decision did not follow its transport policy;
• the Council did not consult any other school and she did not give a parental preference; and
• no co-production of travel implications took place between her and the Council.
28. In mid-August 2023 the Council re-considered the application under stage 1 of its appeal process but upheld its refusal. In summary, it said:
• the home to school distance to School 1 was just over one mile using the shortest walking distance. That distance was less than the minimum statutory walking distance for Child Y’s age, which was three miles;
• there were three closer schools to Child Y’s home address than School 1;
• Ms X expressed School 1 as her only school preference in the national school primary admission round which was before it issued Child Y’s EHC Plan;
• Child Y had attended School 1 for several years and Ms X had not applied for school transport before this application or before Child Y’s EHC Plan was issued;
• an EHC Plan was not an automatic right to travel assistance and must be considered against the Council’s Education Travel Assistance policy;
• Child Y had travelled to School 1 for several years without Council school transport and there was no evidence to show Child Y could not travel the distance to School 1;
• it was the parent’s legal responsibility to ensure a child attended school;
• the decision to refuse home to school transport for Child Y was correct and followed its Education Travel Assistance policy; and
• Ms X could submit medical evidence to show why Child Y could not access school without school transport and it would consider it further at that appeal stage or she could submit a stage 2 appeal.
29. Ms X remained unhappy with the Council decision. In mid-September 2023 Ms X asked for an appeal at the final stage of the Council’s appeal procedure. Ms X said:
• School 1 was Child Y’s nearest mainstream primary school. This was in line with the Council policy for children with an EHC Plan, because it was named by their EHC Plan Coordinator and was the only school consulted;
• in the Council response to the stage 1 appeal it changed its reason and said Child Y did not have a medical reason to stop them walking to School 1;
• Child Y had Autism, hypermobility, sensory processing difficulties and a low rate mobility disability living allowance (DLA). Child Y could not walk more than 10-15 minutes without pain. The safest walking route would take 24 minutes. Child Y had high levels of sensory need, difficulties in busy areas, need for routine and transitions meant periods of dysregulation; and
• it was not safe or reasonable for Child Y to walk safely to School 1 everyday.
30. In early November 2023 Ms X attended a virtual stage 2 travel assistance appeal panel. The appeal panel considered the information put forward by Ms X.
31. The notes of the appeal panel said:
32. “Don’t see how parental responsibility has changed. Only because Child Y has got an EHC Plan they want transport. Ms X has taken Child Y to school until this point and is still doing so’; and
33. ‘Can’t see anything that has changed. Nothing in the physio report that suggests he could not walk the journey. In fact it is encouraging him to run up to 20 minutes, they must see potential for ability to do this. Mobility does not seem to be the big issue’.
34. In mid-November 2023 the chair of the stage 2 appeal panel wrote to Ms X with the appeal decision. The appeal panel did not uphold Ms X’s appeal. It said School 1 was not the nearest mainstream primary school to Child Y’s home address. Ms X had continued to drive Child Y to and from School 1. Issuing Child Y with an EHC Plan did not give automatic right for travel assistance and the panel had not been provided with enough evidence that Ms X could not continue to transport Child Y. The travel assistance decision was made in line with the Councils Education Travel Assistance policy.
35. Ms X remained unhappy and contacted us.

My findings

36. The Ombudsman is not an appeal body. In cases such as this, our role is to decide whether the appeal panel followed the correct procedure in making its decision.
37. The Council was at fault. It did not follow the relevant parts of the statutory guidance. The Council did not consider whether, in line with its local policy, it provided Ms X “…with clear and timely information” when naming School 1 in Child Y’s EHC Plan.
38. Section I of Child Y’s EHC Plan named only one school, School 1, without any conditions. Child Y has attended School 1 for several years and was the school Ms X applied for funded transport to. Child Y’s EHC Plan is silent on any implications for transport assistance. If the Council considered that a school closer to Child Y’s address was equally or more suitable than the one that they attend, it should have named this in Child Y’s EHC Plan. The Council did not do that. If it had named another nearer school, this would have given Ms X a right of appeal to the special educational needs (SEN) tribunal if she disagreed with any school named in section I. She did not have a right of appeal because the EHC Plan only named one school, School 1.
39. In line with the Council’s policy, it should have provided clear and timely information to Ms X about the implications for transport funding if it felt there were closer schools which could meet Child Y’s needs. Based on the information seen, the panel did not satisfy itself the Council did this. As no other schools were named, we can say the Council decided in August 2023 the school attended by Child Y is their nearest suitable school. This is a relevant point for transport eligibility and is echoed in the Council’s own policy which says the school designated by the EHC Coordinator is the nearest suitable school for transport purposes.
40. There is no evidence to show the panel properly considered this important point when it refused Ms X’s appeal. The panel’s primary focus was the availability of other local schools. But the panel did not know whether those schools could meet Child Y’s needs and, in any case, should not have strayed into this discussion as only one school was named on the EHC Plan. Had any of those schools been considered suitable for Child Y, they could and should have been named in Child Y’s EHC Plan and Ms X given her right to appeal to the tribunal. For the reasons explained in the paragraphs above, the Council has already determined through Section I of Child Y’s EHC Plan that they are attending their nearest suitable school. A fresh transport appeal panel must consider this.
41. As the panel must accept School 1 is Child Y’s nearest school, the panel will need to go on to consider whether the other conditions apply:
• does the child’s disability, special educational needs or mobility mean they cannot walk the route?
• if Child Y can walk the route but it would be unsafe due to their special educational needs, disability or mobility problem, would it be safe if they were accompanied? Is it reasonable to expect Ms X to accompany Child Y?
42. We cannot say what the outcome of the appeal might be. However, the Council needs to hold another appeal to consider the proper tests, as set out above.
43. The Ombudsman has already made recommendations to this Council on a similar case. The Council has already agreed to arrange staff training for decision makers and panel members on how it should decide which school is considered to be the nearest suitable school for young people with EHC Plans. (see case 23012074). On this basis no further service improvements were needed.

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Agreed Action

44. Within a month of my final decision, the Council will arrange a fresh appeal for Ms X with a different panel. The Council will ensure the panel makes its decision in line with the law and statutory guidance.
45. If the fresh appeal is successful, the Council will refund Ms X’s transport costs, based on its mileage allowance for four car journeys per day, from the day it provides free transport backdated to September 2023. The Council will make any refunds within a month of the appeal hearing.

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Final decision

46. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice caused and prevent reoccurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman