Summary: Mrs X complains about the Council’s decision to not provide her son with transport to school since 2020. She said the family have incurred transport mileage costs since then that could have been spent on extra support for her son. We will not investigate matters before 2023 and we do not find fault by the Council.

The complaint

1. The complainant, Mrs X, complains about the Council’s decision to not provide her son with transport to school since February 2020. She said the family have incurred transport mileage costs over the years that could have been spent on extra support for her son.

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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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
6. 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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What I have and have not investigated

7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done.
8. We will only investigate this complaint from September 2023. Mrs X first complained to the Council in October 2023. Mrs X was aware she was transporting her son in 2020. She could have complained to the Council and us sooner if she felt she should not be transporting her child to school. In addition, she had a right of appeal to the tribunal if she disagreed with the school placement and conditions set out in section I of the EHC Plan. She used her right of appeal in 2021 about sections B and F and could have added to that appeal any disagreement with section I. She had further right of appeal after that stage, following the completing of the annual review of B’s EHC Plan, to challenge what was set out in section I.

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How I considered this complaint

9. I spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
10. Mrs X and the Council had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

11. 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.
12. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document 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 their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
14. The travel to school for children of compulsory school age guidance states parents have the right to ask for a particular school be named in their child’s EHC Plan. The council must name that school in the plan unless it would be unsuitable for the child’s age, ability, aptitude or special educational needs, or incompatible with the efficient education of others or the efficient use of resources.
15. If the council determines that providing travel to the parent’s preferred school would be incompatible with the efficient use of resources, the council may:
• name a different school that would be appropriate for the child’s needs;
• name the parent’s preferred school on the condition that the parent arranges the travel or provides some or all of the cost of the travel; or
• name the parent’s preferred school on the condition that they arrange the travel (or provide sone or all of the cost) and name a different school that would be appropriate for the child’s needs and to which council would provide transport.
16. When the council names the parent’s preferred school on the condition that the parent arranges or pays for the travel, it may set out this condition in section I of the EHC Plan.
17. The parents’ or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the local authority can name the nearer school or college if it considers it to be appropriate for meeting the child or young person’s SEN. If the parents prefer the school or college that is further away, the local authority may agree to this but is able to ask the parents to provide some or all of the transport funding. (SEN code paragraph 9.215)
18. Where the parent and the Council prefer different placements under s.39 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)
19. There is a right of appeal to the Tribunal against matters such as:
• the description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan;
• a decision not to amend an EHC Plan following a review or reassessment.

Background

20. Mrs X’s son, B, has an EHC Plan.
21. The EHC Plan was finalised on 14 February 2020. It named Mrs X’s preferred school placement, school A. It also included a transport clause in section I which said:
• The parents of B have expressed a preference under the provisions of Section 30 of the Children and Families Act 2014 and Schedule 2 (14) of the SEND Regulations 2014 for him to attend the above school; and
• The Council accepts that this school would be suitable. However, it is not the nearest suitable school and the Council considers that it would be incompatible with the efficient use of its resources if it had to provide or fund home to school transport to this school. That being so, the Council, having taken into account paragraph 9:214 of the SEN Code of Practice, has agreed to name the school on the express condition that B’s parents accept and continue to accept liability for arranging and funding home to school transport. If for any reason they are no longer willing or able to do so then B would be expected to transfer to the nearest suitable school.
22. The EHC Plan was issued with a letter explaining Mrs X’s right to appeal to the tribunal if she disagreed with anything specified in the Plan.
23. The Council has reviewed the EHC Plan each year, each time giving Mrs X the right to appeal to the tribunal.
24. In 2021 Mrs X appealed to the tribunal about sections B and F of the EHC Plan.

Summary of the key events

25. Mrs X complained to the Council in October 2023. She said B had been unlawfully refused home to school transport. She said:
• the request was refused due to the decision to choose school A over the nearest suitable school;
• at the time, she was not aware of her rights;
• said she was also not aware at the time that the Council had failed to correctly apply the law and therefore accepted the grounds thinking she had no right to appeal; and
• she only became aware of this when arranging transport for her daughter and accidentally came across the relevant laws.
26. In response the Council said:
• back in 2020, the case officer told the transport team they had discussed the transport clause with Mrs X and she had stated she was happy to transport B to school;
• the transport team told Mrs X who to contact if she wanted to discuss the process and decision of nearest school;
• its transport policy is in line with legislation and the transport team correctly applied the policy;
• in considering Mrs X’s request for B to attend the school, a school agreed as suitable but not the nearest suitable, in line with the Dudley judgement the team considered the cost of transport to both the preferred school and the nearest suitable school. It determined that the provision of transport to the preferred school was incompatible with the efficient use of resource;
• the school was named as parental preference and therefore B was not assessed as being an eligible child.

Analysis- was there fault by the Council causing injustice?

27. The Council named school A, Mrs X’s preferred choice, in the EHC Plan with the conditions that Mrs X transport B to the school.
28. As stated in paragraph 17, the guidance states if the Council determines that providing travel to the parent’s preferred school would be incompatible with the efficient use of resources, the Council may name the parent’s preferred school on the condition that the parent arranges the travel or provides some or all of the cost of the travel. Therefore, the Council has followed the guidance and there is no fault in the Council adding the transport clause to the EHC Plan.
29. If Mrs X believed the Council has not correctly applied the Dudley test (above) regarding whether School A should be in section I without the condition that she transport B to school, then it was reasonable for her to have used her right of appeal to challenge section I. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.
30. The statutory guidance says the Council should name both nearest suitable school and the parent’s preferred school when stating a parent must transport the child to their preferred school. However, whether or not section I is correct, would be a matter for a tribunal in this case as there is a clause in the EHC Plan
31. As a result, we cannot investigate this complaint further.

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Final decision

32. I have completed my investigation with a finding of no fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman