Summary: The complainant (Mrs X) said the Council had failed to provide transport for her son (Y) to the only school named in his Education Health and Care Plan. We found fault in the Council’s refusal to consider Mrs X’s request for transport assistance. This fault caused her injustice. The Council has agreed to apologise, to make a mileage allowance payment for Mrs X for the days Y attended the school and to make a symbolic payment to recognise Mrs X’s distress. The Council has also agreed to carry out some staff training and to review its school transport policy.

The complaint

1. Mrs X complains about the Council’s refusal to provide transport for Y to the only school named in Y’s Education Health and Care (EHC) Plan, which was more than three miles away from Y’s home address. Mrs X says the Council’s failure affected her financially as she had to provide transport for Y.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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)
6. 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 have and have not investigated

7. As explained in paragraph three of this decision we would normally not investigate late complaints. I decided there are no good reasons to investigate any events which happened more than 12 months before Mrs X came to us in June 2024. This is because Mrs X’s unawareness of the legal framework on school transport for children with EHC Plans and taking part in the special educational needs and disabilities (SEND) appeal proceedings are not enough reasons to justify the delay in complaining.
8. I did not investigate whether the Council failed to fulfil its duties with regard to school transport for Y before June 2023. I have, however, referred to the events from March 2022 as a background for my decision.

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How I considered this complaint

9. I considered the information provided by Mrs X and the Council.
10. I referred to the Council’s policy “Home to school transport assistance – eligibility policy for children and young people attending school” from September 2023 to August 2024.
11. Mrs X 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

Legal and administrative framework

12. 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)

13. 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.
14. It is open to a local authority to name two schools in section I of the EHC Plan and to state that the parental school has been named only on condition of the parent paying the transport costs. (R v Essex CC ex p C [1994] ELR 54, R(M) v Sutton LBC [2207] EWCA Civ 1205, S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)

What happened

15. At the beginning of March 2022 Mrs X asked the Council to name a specific mainstream academy (School 1) in section I of Y’s EHC Plan from September 2022, provided it could meet Y’s needs.
16. The Council responded a month later. It said School 1 confirmed it could meet Y’s needs although it could not offer small class sizes. Referring to the telephone conversation from the end of March the Council agreed to name School 1 for Y from September 2022 on the understanding that “it is not [Y’s] catchment school and is being named as parental preference, he will not be entitled to support with transport to school”. I refer to the nearest mainstream school for Y called as a “catchment school” by the Council as School 2.
17. The Council issued Y’s final EHC Plan in September 2022, naming School 1 in section I.
18. During the annual review carried out in April 2023 Y’s difficulties at School 1 were discussed. After the review the Council issued an amended final EHC Plan for Y in mid-May 2023. The Council did not change section I of Y’s Plan, despite Mrs X’s dissatisfaction with School 1.
19. Mrs X appealed sections B, F and I of Y’s EHC Plan. She also asked the Council to arrange transport for Y to School 1.
20. In November 2023 Mrs X complained to the Council about its failure to provide Y with school transport. She said the Council named only one school in section I and, as this school is over the statutory walking distance, Y should be provided with transport. Besides the Council did not provide any cost comparison between School 1 and School 2. Mrs X said she had told the Council School 1 was no longer her preference for Y.
21. The Council responded two weeks later. It said when agreeing to name School 1 in Y’s EHC Plan the Council told Mrs X it would not be providing transport. This is because Mrs X had asked for the school which was further from her home than the nearest mainstream placement. The Council also said: “It would have been improper of the Council to give a choice of schools in the EHCP and to stipulate that you would need to pay for transport if you chose one school over another.”
22. At the end of June 2024 the Council issued Y’s post-Tribunal EHC Plan with School 1 named until the end of July 2024 and a specialist setting from September 2024.

Analysis

23. In Y’s EHC Plan, amended after the annual review in April 2023, the Council named School 1. The case law quoted in paragraphs 13 and 14 of this decision explains what should happen when the Council considers there is a nearer suitable school for a child and naming parental preference would be unreasonable public expenditure. In such cases it should name both placements making it clear the child’s parents would be responsible for providing transport.
24. The Council’s correspondence with Mrs X in March and April 2022 reflected its position that naming School 1 as parental preference was dependant on them providing school transport. The Council failed, however, to name both placements in Y’s EHC Plan issued in May 2023. There is no evidence of the Council completing cost comparison between School 1 and School 2 and deciding that naming School 1 would be unreasonable public expenditure.
25. When Mrs X asked for the Council to provide transport for Y to School 1 in June 2023, the Council wrongly relied on the arrangements made with Mrs X in the spring 2022 and failed to consider Y’s eligibility. This is fault.
26. The Council:
1. should have considered whether School 1 was still parental preference following discussions at the annual review of Y’s EHC Plan in April 2023 and a subsequent appeal to the SEND Tribunal;
2. if it considered School 1 was still parental preference it:
1. should have carried out cost comparison between both placements, and, if naming School 1 would be incompatible with the efficient use of resources
2. should have named both School 2 and School 1, indicating Y’s parents would be responsible for providing transport to School 1;
3. when naming only School 1 in section I of Y’s EHC Plan the Council should have decided whether Y was eligible for free transport.
27. The Council’s failure to follow the process outlined in sub-paragraphs a) and b) above meant School 1 became the “qualifying school” as the only school named in Y’s EHC Plan and the Council should have considered whether Y was eligible for school transport.
28. Paragraph 12 of this decision includes the criteria for child’s eligibility for transport. On the balance of probabilities I consider that if the Council had taken a decision on Y’s eligibility for school transport, it would have decided Y was eligible. This is because:
• School 1 was the only school named in Y’s EHC Plan;
• the shortest walking route between Y’s address and School 1 was over three miles.
29. The Council’s fault caused injustice to Mrs X. She had to provide transport for Y to School 1 and had associated costs. She was also distressed at the Council’s refusal to consider her request.

The Council’s school transport policy for 2023/2024

30. Paragraph 1.1.6 of the Council’s school transport policy for 2023/2024 states: “If a child or young person on an Education Health and Care Plan attends a mainstream school other than their catchment or nearest due to parental preference having that school named on their EHCP, the family will not be eligible for free transport.” This is misleading and does not represent the law as laid out in paragraphs 12 to 14 of this decision.

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Agreed action

31. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• make a payment to Mrs X to reflect the costs she incurred transporting Y to School 1 from mid-May 2023 until the end of July 2024. That payment should be based on the mileage allowance the Council normally pays (or HMRC rates if the Council does not have its own policy) and should cover four journeys each day Y attended the school;
• pay Mrs X £150 to recognise the distress caused to her by the Council’s failings.

The Council will provide the evidence that this has happened.

32. We also recommend the Council within three months of the final decision:
• arrange training for staff making decision about school transport. The training should focus on how school transport should be considered when the school chosen by the parents is further away than the school the Council considers suitable. The training should be based on the statutory guidance “Travel to school for children of compulsory school age” from January 2024;
• review its school transport policy to ensure it provides accurate information about:
1. tests it must apply when deciding whether to pay for transport/provide travel assistance; and
2. what action the Council will take where it decides the school of parental choice is incompatible with the efficient use of resources, having regard to the statutory guidance “Travel to school for children of compulsory school age” from January 2024.

The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I uphold this complaint. I found fault in the Council’s refusal to consider Mrs X’s request for the Council’s assistance with school transport for Y. This fault caused Mrs X injustice. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman