Summary: Mr F complained about the Council’s decision to refuse school transport for his son, who has special educational needs. We found no fault.

The complaint

1. Mr F complains about the Council’s decision to refuse school transport for his son, who has special educational needs. Mr F says the decision had a negative impact on his son’s school attendance.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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

4. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
5. Mr F and the Council 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

Relevant law and guidance

Home to school transport

6. 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. (Education Act 1996, 508B(1) and Schedule 35B)

Transport for children with special educational needs

7. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. This includes which school, or type of school, they attend.
8. 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.)
9. Where the child is attending the nearest suitable school, they will qualify for free transport provided any other relevant conditions are met. Not every child with an EHC plan, or who attends a special school, will be eligible for free travel to school. A child with SEN is eligible for free travel if:
• They attend their nearest suitable school, and
• It is within the statutory walking distance of their home (two miles for children under eight), and
• They could not reasonably be expected to walk there because of their special educational needs, disability (SEND), or mobility problems, even if they were accompanied by their parent.

(Department of Education, Travel to school for children of compulsory school age statutory guidance 2024, paragraph 13)

10. Councils should assess eligibility on the grounds of SEND or mobility problems on a case-by-case basis. The assessment should take account of the child’s physical ability to walk to school and any health and safety issues related to their special educational needs, disability, or mobility problems. It may take account of whether they would be able to walk to school if they were accompanied.
11. A child will not normally be eligible for free travel to school on the grounds of their SEND 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.
12. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves. Councils must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case.
13. Where the local authority determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2024, paragraphs 49 to 54)

School transport appeals

14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. The 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.

(Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

What happened

15. Mr F’s son, J, has special educational needs. An EHC plan issued in July 2023 named a primary school, School A. Mr F started to appeal to the SEND Tribunal for the plan to name School B.
16. An EHC plan working document was drawn up which named School B from January 2024 and a special school from September 2024. On 16 November Mr F applied for transport to School B.
17. The Council refused the application as School B was less than two miles from J’s home and he had no mobility problems.
18. Mr F appealed, enclosing a letter from a health professional which said J had autism. Mr F said J had delayed development, was hyperactive and unaware of his surroundings. He could not walk long distances due to becoming nervous and anxious. Mr F said he was unable to transport both of his children to school as they both had SEND.
19. The Council rejected the appeal on distance grounds. Mr F asked for his appeal to be considered by the Stage 2 panel. He said J was not attending School B as he could not transport him there.
20. The Council conceded to Mr F’s appeal about the EHC plan and the SEND Tribunal issued a consent order that the Council would issue a new EHC plan naming School B until July 2024 and a special school from September 2024.
21. The transport appeal panel met online with Mr F on 29 January 2024. Mr F says he felt belittled by a question from the panel about his employment and that assumptions were made based on his race. The Council says panel members asked Mr F if he could drive but did not make an assumption about his employment.
22. The panel minutes say that Mr F explained walking was not a safe option as J was unaware of his surroundings, could put himself at risk and become anxious when walking. They also set out the practical difficulties for the family to transport J.
23. The panel rejected Mr F’s application for transport. It said J did not have mobility problems and the request was based on the needs of the family, which was not a criteria for providing transport.

My findings

24. The Ombudsman is not an appeal body and it is not our role to determine whether J is eligible for school transport. My role is to consider how the Council has made its decision.
25. Given Mr F’s concerns about some of the questioning by the panel, I asked the Council for a recording but none was available. Instead the Council asked the panel to comment on the concerns. The panel members have disputed Mr F’s version. I therefore do not have sufficient evidence to find fault in the questioning.
26. Having reviewed the panel papers, I find the Council has decided Mr F’s application in accordance with its policy and government guidance and it has considered the information Mr F provided about J’s needs. I therefore have not identified fault in the way the Council made its decision to refuse transport and so I am unable to change the decision or say the Council should reconsider the matter.

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Final decision

27. There was no fault by the Council. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman