Summary: The Council was at fault for failing to provide school transport for Miss X’s child Y to the school named in their Education, Health and Care Plan. The Council will apologise to Miss X for the avoidable frustration caused by its fault. It will also provide school transport for Y, reimburse Miss X for the mileage costs she incurred in taking Y to school, and take steps to prevent recurrence of the same fault.

The complaint

1. Miss X complained the Council refused to provide suitable home to school transport for her child, Y, to the school named in their Education, Health and Care (EHC) Plan. She said it failed to properly consider Y’s needs in its decision to refuse a solo taxi provision.
2. Miss X said, as a result, Y’s education and mental health suffered and it impacted her finances and wellbeing.

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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. 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(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

7. I spoke to Miss X about her complaint.
8. I considered evidence provided by the Council in response to our initial enquiries as well as relevant law, policy and guidance.
9. 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

Relevant law and guidance

Education, Health and Care Plan

10. 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. Section I of the EHC Plan outlines the name and/or type of educational placement.

Home to School Transport

11. 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. ‘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)

12. Where a child has an EHC Plan, the school named in the Plan will normally be considered the nearest suitable school.
13. 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.
14. It is open to the council 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)
15. Where the parent and the council prefer different placements under s.38 Children and Families Act, but attendance at the parent’s preferred school would lead to additional transport costs, the Court of Appeal has set out a test (‘the Dudley test) that councils should apply when deciding whether councils are obliged to pay for transport to a parent's choice of school:
• First it should be established whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the council's choice of school (that is whether a place is available). If the council's choice is not suitable, or there is no place available, then the parent's choice is the nearest suitable school.
• If both schools are suitable, the cost of providing transport to both should be established when considering whether the parent's choice is incompatible with the efficient use of resources.
• Only if the total cost of the parent's choice of school compared to the council's choice of school (including transport) is so significant as to represent an “inefficient use of resources”, can the council name two schools, with the condition the parents provide transport to their choice of school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346

Appeals process

16. 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.

Council’s SEND Home to School Transport Policy

17. The Council’s policy sets out that the Council has a duty to ensure that suitable travel arrangements are made to facilitate a child’s attendance at school, where it is deemed necessary. The four categories of eligibility are:

• Statutory walking distance eligibility (mainstream criteria).
• Unsafe route eligibility (mainstream criteria).
• Extended right eligibility – income grounds (mainstream criteria).
• Special educational needs, a disability or mobility problems eligibility.

18. It says the Council may consider amending the named school on an EHC Plan if there is a nearer suitable school that would make more efficient use of the Council’s resources. This will be done on a case-by-case basis and the needs of the child/young person will be at the heart of all discussions/decisions made.
19. If a parent/carer has requested a school to be named in the EHC Plan but there is a place at a nearer suitable school, generally the parent/carer will be responsible for transport to this school.

What happened

20. This section sets out the key events in this case and is not intended to be a detailed chronology.
21. Miss X’s child Y is of secondary school age and has social, emotional and mental health needs. Y is on roll at school A.
22. In Summer 2024 Miss X and Y moved home. School A is over three miles away. Miss X requested the Council to provide home to school transport for Y to attend school A. She said school A was not in walking distance, Y had disabilities and suffered with social anxiety.
23. In September 2024 the Council offered Y a place on a coach to school A. Miss X requested a taxi provision; she said this was due to Y’s needs and anxiety as they spent an hour on the coach to reach school. The Council refused Miss X’s application for a taxi and she appealed this decision.
24. Miss X’s appeal was heard in October 2024 and refused. She complained to us about this appeal soon after under a separate case. We closed this complaint as the Council agreed to offer Y a place on a shared taxi in November 2024. This was an acceptable outcome for Miss X at the time.
25. In late November 2024 the Council issued Y’s first EHC Plan and named school A in section I of the Plan. Y’s EHC Plan did not name another placement and it did not outline any transport conditions attached to Y’s placement at school A.
26. In March 2025 Miss X asked the Council to provide a solo taxi. She said Y was unsettled and distressed in the shared taxi and this had impacted her wellbeing and education.
27. On 10 March 2025 the Council wrote to Miss X. It said that Miss X had requested a solo taxi after “the taxi service outlined difficulties it observed” with the arrangement. It told Miss X that the decision to send Y to school A was a parental choice and that Y’s EHC Plan was issued after this choice was made. Because school A was not the nearest school, it was unable to provide Y with transport as per its policy. It rejected Miss X’s request for a solo taxi and told her that it was her responsibility to make transport arrangements for Y because it was her decision to send Y to the non-nearest school. It said it was prepared to allow access to the school coach as seats were available.
28. On 11 March 2025 the Council wrote to Miss X explaining “the difficulties of the taxi route being no longer available.” It also told Miss X that Y was not entitled to school transport under its policy due to school A not being the nearest school. It was the fourth nearest school. It offered use of the school coach as seats were available.
29. On 18 March 2025 the Council told Miss X that its previous offer of a shared taxi was “not linked to any legal obligation to provide transport” but was provided as “the opportunity of a spare seat became available in a current taxi route.” It said that its offer of the school coach was outside its policy but was a “reasonable adjustment in the circumstances.” It also told Miss X that the appeals process had concluded in October 2024 and that there was no further appeal mechanism available.
30. On 22 March 2025 Miss X wrote to the Council and said that use of the school coach previously had negatively impacted Y therefore it would not be appropriate. She said councils were responsible for ensuring suitable transport arrangements if a “child with an EHC Plan is placed at a school due to their special educational needs.” She said school A was the most appropriate school for Y’s needs.
31. Miss X complained to us. She told us that the Council’s actions had made Y’s mental health worse and that she had since developed school anxiety. She also told us due to this it was unlikely Y would be able to return to school from September 2025.

Findings

32. When Y’s shared taxi arrangement ended in March 2025 the Council said it had no legal duty to provide school transport because it was Miss X’s choice to send Y to school A, which was not the nearest school. This was fault because evidence showed that the Council named only one school in Y’s EHC Plan in November 2024 and that was school A. There were no transport conditions attached to this placement in Y’s EHC Plan nor did the Council make any arrangements for Y to attend a closer school by naming it in their Plan. Based on this, school A was the nearest suitable school for Y as per the statutory guidance.
33. The Council had a duty to provide free home to school transport to enable Y to attend the only school named in their EHC Plan, which is outside the statutory walking distance. It did not, which was fault. As a result, Miss X incurred transport costs to take Y to school and both Miss X and Y were caused avoidable distress and frustration.
34. It is the Council’s decision to decide what type of transport to offer Y. However it should make this decision in line with the statutory guidance to show proper consideration of Y’s needs, of any supporting evidence and other relevant matters.

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Agreed action

35. Within one month of this decision the Council will:
1. Apologise to Miss X for the avoidable frustration caused by its fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making this apology.
2. Provide Y with free home to school transport to school A that is named in their Education, Health and Care Plan. In deciding what transport to offer Y, the Council will consider Y’s needs and other relevant evidence in line with the statutory guidance. It will also keep detailed records of the reasons for its decision in line with the statutory requirement.
3. Reimburse Miss X a mileage allowance for four journeys per day to and from school for the days Y attended school, from the date Y stopped using the shared taxi in March 2025 to the date it provides free transport.
36. Within two months of this decision, the Council will provide training to school transport officers and other relevant staff on home to school transport and the statutory guidance ensuring this covers applications from pupils where there is only one school named in their Education, Health and Care Plan.
37. The Council will provide us with evidence it has complied with the above actions.

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Decision

38. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman