Summary: We will not investigate Mrs X’s complaint about the Council refusing to provide home to school transport and its handling of her child’s Education, Health and Care Plan. There is not enough evidence of fault by the Council for us to question its decision not to provide transport. If Mrs X wants to challenge the content of her child’s Education, Health and Care Plan, it is reasonable for her to appeal to the SEND Tribunal.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained the Council has refused to provide her child (Y) with free transport to school. The Council has refused because it says the school Y attends is parental preference and Mrs X agreed to provide transport. Mrs X disputes this and says she did not agree to the clause in her child’s Education, Health and Care Plan (EHC Plan) which states she is responsible for transporting Y to school.

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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. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. 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)
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.

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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What I found

School transport

7. The Department for Education has produced statutory guidance for Councils to help understand their duties regarding school transport. The Guidance states councils have a duty to provide free transport to eligible children who attend their nearest suitable school and:
• live more than the statutory walking distance from that school, or
• who live within statutory walking distance of the school but who cannot reasonably be expected to walk to that school because of their special educational needs, disability, or mobility problem (even if accompanied by their parent), or
• who live within walking distance of the school but would not be able to walk to that school in reasonable safety, even if they were accompanied by their parent.
8. Where a child has an EHC Plan, and there is only one school named, it will normally be their nearest suitable school for travel purposes. However, the Guidance explains that if a council decides that providing travel to the parent’s preferred school would be incompatible with the efficient use of resources, the Council may:
• name a different school that would be appropriate for the child’s needs (this may be the nearer school), or
• name the parent’s preferred school on the condition that the parent arranges the travel or provides some or all of the cost of the travel, or
• name the parent’s preferred school on the condition that they arrange the travel (or provide some or all of the cost) and name a different school that would be appropriate for the child’s needs and to which the authority would provide transport.

Background

9. Mrs X asked the Council to provide Y with free transport to their school (School Z). The Council refused Mrs X’s original request and has also refused her appeals. The Council says there is a closer school than School Z which could meet Y’s needs. This means Y is not entitled to transport. The Council has referred to Y’s EHC Plan which names School Z and states Mrs X is responsible for providing transport. The Council included this clause because it considered School Z to be incompatible with the efficient use of resources. Mrs X says she did not agree to sign the EHC Plan, but the Council still issued a final version.

Assessment

10. We will not start an investigation into Mrs X’s complaint.
11. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with the decision the organisation made.
12. In this case, the Council’s decision not to provide transport to School Z is one it is entitled to take. This is because there is a closer school to home which the Council believes can meet Y’s needs. The Council agreed to name School Z in Y’s EHC Plan, but on the understanding Mrs X would provide transport. This is in line with the approach the Guidance says councils can take and which I have set out in paragraph 8. The Council has given Mrs X the chance to appeal its decision but has decided not to uphold her appeals. There is not enough evidence of fault by the Council for us to question its decision not to provide transport.
13. Mrs X has raised concerns about the process the Council followed to finalise Y’s EHC Plan. Mrs X says she made it clear she would not be signing the plan or an agreement to take Y to school. It is clear though that Mrs X did want Y to attend School Z and there is no requirement for parents to sign an EHC Plan before a council can issue a final version.
14. More importantly, parents who are unhappy with the content of an EHC Plan have a right of appeal to the SEND Tribunal. In this case, alleged issues with how the council decided the content of the EHC Plan are closely linked to the eventual content. When a parent wants to challenge the content of an EHC Plan, we generally expect them to use their right of appeal. This is because the SEND Tribunal has the power to say the content of an EHC Plan should be changed. That is not something we can do. So, if Mrs X now wants to challenge the content of her child’s EHC Plan, it is reasonable for her to appeal. We will not therefore investigate.

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Final decision

15. We will not investigate Mrs X’s complaint. There is not enough evidence of fault, and it is reasonable for Mrs X to use her right of appeal to the SEND Tribunal.

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Investigator's decision on behalf of the Ombudsman