Summary: Mr X complained the Council wrongly refused to provide free home-to-school transport for his child, Y, to attend the only school named in Y’s Education, Health and Care (EHC) Plan. The Council was at fault when it said there were closer schools which Y could attend because it had not named these in Y’s EHC Plan. This fault caused Mr X an avoidable financial burden, frustration and avoidable time and trouble. The Council will apologise, ensure Y receives free home to school transport, repay the costs of Y’s school bus travel between May 2024 and July 2025, and make a symbolic payment to Mr X to acknowledge his frustration and avoidable time and trouble. It will write to relevant staff about the statutory guidance and review its home to school transport policy.

The complaint

1. Mr X complained the Council wrongly refused to provide free home-to-school transport for his child, Y, on the grounds that there was a nearer suitable school. Mr X complained about the Council’s refusal to provide free home-to-school transport 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. Mr X said the Council disregarded Y’s medical circumstances and there was a discrepancy between national guidance and the Councils local application of its home-to-school transport policy. Mr X said it caused him a financial burden and frustration.

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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. 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)
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 Mr X came to us in December 2024. This is because Mr X’s lack of awareness of the legal framework on school transport for children with EHC Plans is not enough reasons to justify the delay in complaining.
8. I have not investigated whether the Council failed to fulfil its duties with regard to school transport for Y before May 2024. I have, however, referred to the events from 2021 as a background for my decision.

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How I considered this complaint

9. I spoke to Mr X about his complaint on the telephone and considered the information he provided.
10. I considered the information the Council provided.
11. I considered the Council’s policies and relevant law and guidance and the Ombudsman’s guidance on remedies.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Home to school transport

13. 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.
14. ‘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; and
• children living within walking distance of the school but who cannot walk to school because the route is unsafe.
15. 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 special educational needs tribunal or the council can do this. Section I sets out the name and/or type of school.
16. Where a child has an EHC Plan, there are exceptions to the usual rule that home to school transport will not be provided if a parent chooses a school which is not the nearest school. Section 39 of the Children and Families Act 2014 sets out that parents have the right to ask for a particular school to be named in their child’s EHC Plan. The council must name that preferred 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. Councils should take the cost of travel into account when deciding whether it would be incompatible with the efficient use of resources to name the parent’s preferred school in the EHC Plan.
17. If only one school is named in a child’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.
18. 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 [2007] EWCA Civ 1205, S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346).
19. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. Government statutory guidance recommends councils adopt the following appeals process:
• Stage 1: review by a senior officer; and
• Stage 2: 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.

The Council’s transport policy

20. The Councils Home-to School Transport Policy 2024/2025 says the nearest qualifying school may be outside of West Berkshire in a neighbouring Local Authority area. It says it will provide free transport to the nearest qualifying school, if it is more than three miles walking distance from home for children over the age of eight. It says for pupils with an EHC Plan attending a mainstream school it will provide assistance with transport to the nearest qualifying school, if it is more than three miles walking distance from home. Under parental preference the guidance says if a parent has chosen a school which is not the nearest school to the home address, this is parental preference. The Council expects parents to have considered how to get their child to school. This could include use of a childminder, friend, before school and after school club. It says parents may be able to access a Fare Payer place on the school bus, which incurs a fee.

What happened

21. Y has special educational needs, disabilities and medical needs.
22. Mr X said he was asked by the Council’s special educational needs and disabilities (SEND) officers for his preferred secondary school for Y from September 2021 and he requested School 1, which is a mainstream secondary school. Y’s final EHC Plan dated 2021 named School 1 in Section I without any conditions. School 1 is more than three miles from Y’s home.
23. School 1 is Y’s catchment school, but it is not the nearest mainstream secondary school to Y’s home for school transport purposes. School 1 is just over four miles from Y’s home. School 2, which is Y’s nearest mainstream secondary school but located outside of the Council’s area, is just under four miles from Y’s home.
24. Mr X paid for Y’s home to school travel costs through the Fare Payer place on a school bus to and from School 1 since Y started at School 1 in 2021.
25. In May 2024 Mr X applied to the Council for Y to receive free home to school transport to School 1. Shortly afterwards in mid-May 2024 the Council refused Mr X’s application. The Council said pupils were eligible for free transport if they attended their nearest school and lived more than three miles travelling distance from the school. It said Y was not attending their closest mainstream secondary school.
26. The next day Mr X challenged this decision. He said:
• there was no school within the statutory walking distance, no safe walking route to a school and Y was eligible for free home to school transport;
• consideration should be given to what was the ‘nearest suitable school’. He said Y had an EHC Plan which named School 1 and in accordance with national guidance, the school named in Y’s Plan was considered the nearest suitable school;
• in accordance with national guidance the Councils special educational needs and disabilities (SEND) team and the Council’s School Travel team should have considered Y’s free home to school entitlement when drafting their EHC Plan in 2021; and
• School 2 was oversubscribed, out of catchment and more expensive for the Council to arrange transport to.
27. In early-July 2024 the Council re-considered the application under stage 1 of its appeal process but upheld its refusal. In summary, it said:
• due to Y’s home address the nearest mainstream secondary school was School 2 and under the Council’s Home to School Transport Policy, free transport was not provided to School 1;
• Y did have an EHC Plan which said their needs could be met in a mainstream secondary school with additional support. It said any mainstream secondary school could meet Y’s needs and even though School 1 was named in Section I Y was not entitled to free transport;
• it provided a link to government guidance on home to school transport; and
• it was unable to agree free school transport to School 1 and gave Mr X his stage 2 appeal rights.
28. Mr X remained unhappy with the Council decision. In late July 2024 Mr X asked for an appeal at the final stage of the Council’s appeal procedure. Mr X said:
• he was aware of a number of children who lived close by to his house that qualified for free home to school transport;
• distance alone should not have been the basis for refusing home to school transport because Y also had an EHC Plan;
• he disagreed with the Councils reasons based on national guidance. Mr X said his understanding was where a child of compulsory school age lived further than the statutory walking distance of three miles to the nearest suitable school they were entitled to free home to school travel. He said they lived more than three miles away from the nearest school and Part 1 section 6 of the guidance said School 1 was named in Y’s EHC Plan and was their nearest suitable school; and
• he said following another parent’s recent Freedom Of Information request the cost per head of free home to school travel to School 2 (Y’s nearest school) was greater than the cost to School 1 (Y’s catchment School).
29. In early September 2024 the school transport appeal hearing was held. Mr X attended the appeal and said:
• Y was eligible for free home to school transport because there was no school within the statutory walking distance or a safe walking route to a school;
• Y’s final amended EHC Plan named School 1 in Section I and when considering national guidance, it made School 1 Y’s nearest suitable school and there was no exceptional reason why the Council could go against the national guidance;
• there were discrepancies between the national guidance and the Council’s Home to School Transport Policy;
• he was asked by the Council’s SEND officers for his preferred secondary school and Mr X said School 1 and that school was named in Y’s final amended EHC Plan. Mr X said because School 1 was named in Y’s EHC Plan it made it Y’s nearest suitable school and School 1 was also Y’s catchment secondary school;
• he thought Council SEND officers and Council Pupil Transport officers would have liaised on this matter before School 1 was named in Y’s EHC Plan; and
• School 2 was not considered because School 1 was already named in Y’s EHC Plan.
30. In mid-September 2024 the Clerk to the Appeal Panel wrote to Mr X with the appeal decision. The appeal panel did not uphold Mr X’s appeal. It said School 1 was named in Y’s EHC Plan but that was because of parental choice, Y’s needs could be met in any mainstream secondary school with additional support, School 2 was Y’s nearest qualifying school and Y did not qualify for free home to school transport to School 1 and the panel did not find any evidence of exceptional circumstances for Y to be granted home to school transport.
31. Mr X remained unhappy and contacted us.

My findings

32. The Council was at fault. It did not follow the relevant parts of the statutory guidance and case law because Section I of Y’s EHC Plan named only one school, School 1, without any conditions. If the Council considered that a school closer to Y’s address was equally or more suitable than the one that they attend, it should have named both schools in Y’s EHC Plan making it clear Mr X would be responsible for providing transport. It would have needed to determine that naming School 1 would be incompatible with the efficient use of resources, taking the transport costs to School 1 into account compared to transport any nearer school such as School 2. The Council did not do that.
33. If it had named another nearer school, or added conditions to naming School 1 because it felt another nearer school was suitable, this would have given Mr X a right of appeal to the special educational needs and disabilities (SEND) tribunal if he disagreed with any school named in Section I. He did not have a right of appeal because the EHC Plan only named one school, School 1, without conditions.
34. The relevant law and guidance section above includes the criteria for a child’s eligibility for home to school transport. By naming just School 1 in Y’s EHC Plan without conditions we can say the Council decided the School Y attended was their nearest qualifying or suitable school. School 1 is also over three miles away from Y’s home and they were therefore eligible to receive home to school transport based on walking distance. Therefore, the Council should have provided Y with free home to school transport from the date Mr X applied in May 2024. Mr X should not have had to pay for a bus pass for Y through the Fare Payer scheme. The Council’s fault caused Mr X frustration and an avoidable financial burden.
35. The Council should have noticed this error itself, at stages one and two of the transport appeal as Mr X’s submission had correctly pointed to relevant parts of the statutory guidance. Therefore, there was also fault in the appeals process. He was therefore unnecessarily put through time and trouble of appealing.
36. The Council’s local home to school transport policy does not explain if a child’s EHC Plan names one school, without additional conditions, that means it is their nearest suitable school. Therefore, its policy is not in line with national guidance. This is misleading and does not represent the law and caselaw. As parents will be applying for their children to receive free school transport from September 2025, it is imperative the Council takes swift action to prevent a repeat of the faults I have identified.

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Action

37. Within a month of my final decision, the Council will:
1. apologise and pay Mr X £150 to recognise the frustration and avoidable time and trouble caused to him by the Council’s failings with Y’s home to school transport and appeal process identified in this decision. 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; and
2. make a payment to Mr X to reflect the costs he incurred paying for Y’s Fare Payer place on the school bus to School 1 from May 2024 until the end of the academic year in July 2025.
38. Within three months of the final decision the Council will:
1. ensure Y is provided with free home to school transport (from September 2025);
2. write to relevant Council School Transport officers and the School Transport Appeal Panel to highlight Section 1 of the statutory guidance “Travel to school for children of compulsory school age” dated January 2024 regarding pupils with only one school named in their EHC Plans;
3. review its school transport policy to ensure it is in line with statutory guidance. Before the policy is changed, remind relevant staff making decisions about school transport of the statutory guidance regarding schools named in Section I of the EHC Plan, especially as there will soon be appeals for transport for the September 2025 school year; and
4. hold a meeting between those in its SEND team who write EHC Plans and those in its school transport team, so each understands the others’ role when it comes to naming a school in Section I. The meeting will cover section 39 the parent’s right to express a preferred school and the Council’s duty to agree to that request 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, taking account of the transport costs for the preferred school and the geographically nearest school. This is sometimes known as the Dudley Test (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346).
39. The Council will provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation finding fault causing injustice. The Council has agreed to take actions to remedy the injustice and prevent reoccurrence of the faults.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman