Summary: We will not investigate this complaint about the refusal of free home-to school transport for Mrs X’s child. There is not enough evidence of fault in the way the school transport appeal panel reached its decision to warrant our further involvement. We cannot investigate the actions of a school.

The complaint

1. Mrs X said the Council wrongly refused home-to-school transport assistance for her child. She said her child had to leave School A, and that they had special educational needs (SEN) that were unmet at School A. She wanted the Council to amend its transport policy.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))
 

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
6. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. We cannot decide if a child is entitled to free home-to-school transport. That is the Council’s role, as overseen by a transport appeal panel where there is an ap[peal against a refusal. Our role involves considering if the panel acted properly by considering the case made where reaching a decision.
10. In this case, the appeal panel noted the child was not entitled by right to free home-to school transport. It noted there was no EHC Plan naming School B, and that it was not the nearest school with places available, finding School A was closer. Having checked whether there was an income-related entitlement to free home-to-school transport, it then considered exercising discretion to go outside its policy based on what Mrs X told it. It decided not to.
11. Procedurally, investigation by us would be unlikely to find the child had an entitlement to free transport that the Council failed to recognise, or that the Council’s policy breached national guidelines in how it decided whether there was a transport duty. We would be unlikely to find it fettered its own discretion to go outside its own policy, as the decision letter shows it considered exercising discretion. That it did not go on to do so would not be evidence of fault.
12. The child does not have an Education Health and Care (EHC) Plan. These may create a transport duty for Councils. It would be for Ms X to apply for an EHC Plan. There is a right of appeal it would be reasonable to use if the Council declined to issue one, or to name her preferred school in any Plan it issued.
13. While Mrs X is unhappy with the actions of School A, as noted by the appeal panel, we cannot consider any complaint about the actions of a school.

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Final decision

14. We will not investigate Mrs X’s complaint because:

• there is not enough evidence of fault in the way the transport panel reached its decision to warrant our further involvement;
• we are legally prevented from investigating the actions of a school; and
• Mrs X also has right to apply for an EHC Plan for her child, naming School B, and to appeal to the SEND Tribunal against any refusal by the Council to issue one naming that school.

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Investigator's decision on behalf of the Ombudsman