Summary: We have found fault with the Council for the way it reached its decision to refuse school transport for Mrs X’s son. This caused Mrs X the injustice of arranging transport for her son as her disability means she is unable to drive. The Council agreed to apologise to Mrs X for its error and reimburse Mrs X for the equivalent mileage allowance.

The complaint

1. Mrs X complained the Council will not provide free transport for her son (Y) who has an Education, Health, Care (EHC) Plan to get to school even though she is disabled and is unable to take him herself.

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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 question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

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What I have and have not investigated

6. I cannot investigate the content of Mrs X’s son’s (Y’s) EHC Plan. Mrs X could appeal to the SEND Tribunal.

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How I considered this complaint

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. 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

The law and guidance

Arrangements for eligible children

9. 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)

Children with EHC Plans

10. The school named in a child’s EHC Plan will be their nearest suitable school for school travel purposes if there is only one named. However, councils should consider the ‘Dudley Test’ set out in paragraphs 11- 15.
11. In the Dudley case, the Court of Appeal considered the test councils should apply when deciding whether it can refuse to name a parent’s choice of school in part I of an EHC Plan due to the additional costs of transport to that school. This would be because it would be an inefficient use of resources.
12. The council should establish whether both schools are suitable (for the age, ability, aptitude or SEN of the child), and whether there is a place available for them to attend the council’s choice of school.
13. If the council finds both its and the parent’s preferred choice of school are suitable, then the council should establish if the parent’s choice is incompatible with the efficient use of resources. The council can compare the whole cost, including the cost of providing transport to either school.
14. If the council concludes the parent’s choice of school compared to the council’s choice is an inefficient use of its resources, then it can name two schools in the EHC Plan.
15. The Council should clearly state the parents must provide or pay for the transport to their preferred choice of school. Councils should also make it clear they may review the school named in the EHC Plan if the parent is unable, or unwilling, to arrange or pay for the travel.

Transport appeals

16. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
17. 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)

Mileage allowances

18. A council may make travel arrangements for an eligible child by offering a mileage allowance to the parent to drive the child to and from school if the parent agrees.
19. The statutory guidance makes it clear that travelling expenses may need to be sufficient to cover the parent’s journey home after taking their child to school in the morning and their journey back to school to collect their child in the afternoon (all four legs of the journey to school and back). There are some exceptions, such as if a parent works close to their child’s school and does not travel home after taking their child to school.

What happened

20. Mrs X’s son, Y has an EHC Plan. The Plan names Mrs X’s preferred school. It also names a closer school which the Council said can meet Y’s needs.
21. Mrs X asked the Council to provide home to school transport for her son. The Council refused on the grounds that Y is not attending the closest school to home that can meet his needs.
22. Mrs X appealed the Council’s decision. She provided information about her disability and how it affected her ability to transport Y to school. The Council and later, the independent panel considered all the information. They decided that Mrs X’s disabilities did not warrant granting educational travel eligibility to a further distance setting outside of the policy.
23. Y started at the preferred school in September 2024. Mrs X made travel arrangements which relied on family members and friends.

Update

24. In response to my enquiries, the Council confirmed that it had made an error and agreed to provide transport for Y in January 2025.

My findings

25. The Council did not consider the ‘Dudley Test’ when it reached its decision to not provide school transport for Y. The test required the Council to give due consideration to the cost difference of travel to both school settings. Therefore, it did not consider whether the additional cost was an unreasonable use of public funds.
26. I have found, and the Council acknowledged that it was at fault for not considering the Dudley Test. This fault resulted in Y having no school transport for the autumn term and two weeks of the spring term (79 days in total). This meant that Miss X had to rely on family, friends and taxis to take/collect Y to/from school as she is unable to drive due to a disability.
27. The Council agreed to apologise to Mrs X and to pay the equivalent of mileage costs for the 79 days that Y was without transport. This should reflect the statutory guidance for mileage allowance set out in paragraphs 18 and 19.

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Agreed action

28. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mrs X for not considering the cost of school transport to Mrs X’s preferred school before refusing her request (the ‘Dudley Test’).
2. Pay Mrs X the equivalent of a mileage allowance for the 79 days that she had to arrange transport for her son to and from school.
3. Remind officers of the requirement to apply the ‘Dudley Test’ when considering school transport requests.
29. The Council should provide us with evidence it has complied with the above actions.

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Decision

30. I have found fault with how the Council handled Mrs X’s request for school transport for her son. This caused Mrs X the injustice of arranging transport herself when she is unable to drive due to disability. The Council has agreed to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman