Summary: Miss X complained the Council acted unfairly when it decided not to award free school transport to her child. We found the Council was at fault for how it handled the school transport appeal process. The Council will review its internal policy and procedure.

The complaint

1. Miss X complained about the Council decision not to provide her child Y with free transport to and from school.
2. She said the public transport options are difficult and inconvenient for Y, and the journey to and from school takes hours each day.

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The Ombudsman’s role and powers

3. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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)
6. 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.
7. The courts have established that if someone has appealed to the Tribunal, the law says we cannot investigate any matter which was part of, was connected to, or could have been part of, the appeal to the Tribunal. (R (on application of Milburn) v Local Government and Social Care Ombudsman [2023] EWCA Civ 207)
8. The same restrictions apply where someone had a right of appeal to the Tribunal and it was reasonable for them to have used that right.
9. 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(1), as amended)

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What I have and have not investigated

10. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.
11. The Council listed one school in section I of Y’s Education, Health and Care Plan. I will refer to this school as setting C. Setting C was the school of Miss X’s choice. In the plan, the Council recorded Miss X was responsible for school transport. The Council said it did this based on a conversation it had with Miss X, who it said agreed to this. Miss X denied ever having had this conversation. She also denied agreeing to provide transport.
12. When the final plan was issued, Miss X had a right of appeal to the Tribunal about the school setting. This would have enabled her to challenge the associated travel arrangements.
13. Miss X’s complaint point about the travel arrangements is therefore out of our jurisdiction. I cannot investigate this point because there was a right of appeal available to Miss X, that we consider it reasonable for her to have used.

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How I considered this complaint

14. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
15. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

16. 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 Tribunal or the council can do this. 
17. The EHC Plan is set out in sections which include Section I: the name and, or type of educational placement.
18. 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. (Education Act 1996, 508B(1) and Schedule 35B)
19. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
20. 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 2024, Part 5)

21. As part of this investigation, I reviewed the Councils Home to School Travel Policy, 2024. I also reviewed its internal procedural guidance.

What happened

22. Y is a child of high school age. Y has learning disabilities and special educational needs. Y has an Education, Health and Care Plan.
23. Y was out of education from January 2024 – November 2024. The Council were consulting with education settings throughout 2024.
24. In September the Council found out a place was available at its own specialist provision, setting B, for Y. The day after the Council found out, it called Miss X and told her. Miss X expressed her concern and said she did not want Y to go to setting B.
25. The Council agreed to name the setting of Miss X’s choice, setting C, as the named school on Y’s EHC Plan.
26. A week later (at the end of September) Y’s final Education, Health and Care (EHC) Plan was issued, for 2024. Section I of Y’s EHC Plan named setting C. In Section I it noted that Miss X had agreed to be responsible for school transport.
27. On the date Y started school at setting C, in November 2024, Miss X applied to the Council for free school transport for Y.
28. The Council declined the application. It said Miss X had agreed to provide transport herself, prior to it issuing the final EHC Plan.
29. Miss X appealed the decision, at stage one of the Councils appeal procedure.
30. In January 2025 the Council decided on the outcome of the stage one appeal. It did not change its position.
31. Miss X complained to the Ombudsman. We asked her to complete the appeal, in full, with the Council.
32. Miss X asked for her appeal to go to stage two. Miss X wanted to represent her case in person. The Council did not let her. It only allowed her to provide written evidence.
33. In March 2025 the Council made its decision at stage two of its appeal procedure. It did not change its position.
34. The Council offered to arrange an emergency annual review for Y, in April 2025, if Miss X wanted to consider a change of placement for Y, due to difficulties she was reporting about transport.

My findings

35. The statutory guidance in place explains a council should enable a parent to attend an appeal in person, should they want to. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2024, Part 5).
36. The Councils approach is in direct conflict with the guidance. The Council said it does not invite parents to make ‘verbal representations’ at a stage two panel but instead invites them to share written evidence.
37. I find fault with the Councils appeals procedure. Miss X was denied the opportunity to properly present her case, in person, to the stage two panel. This fault caused Miss X undue frustration and uncertainty.

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Action

38. Within twelve weeks of a final decision being issued, the Council has agreed to:
• Review the Councils Home to School Travel Policy to ensure its appeal procedure is in line with statutory guidance.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman