Summary: We found no fault on Miss Y’s complaint about the Council’s decision to refuse her application for home to school transport for her daughter. The Council properly considered it in line with its own policy.

The complaint

1. Miss Y complains about the Council refusing to provide home to school transport for her daughter, Z, who has disabilities and an Education, Health and Care (EHC) plan naming her preferred school: as a result, this is causing her great difficulties, including financial. It also affects her health as she struggles to lift her in and out of the car four times a day. The situation is stressful and upsetting for both of them.

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The Ombudsman’s role and powers

2. 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)
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. 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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

6. I have not investigated the Council’s decision about another school being a suitable placement for Z instead of Miss Y’s preferred school. This is because Miss Y has, and has indeed used, her right to appeal this decision to the tribunal.

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How I considered this complaint

7. I considered evidence provided by Miss Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Miss Y and the Council. I considered the Council’s response.

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What I found

Law and guidance

8. Local authorities (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.
9. ‘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, section 508B(1) and Schedule 35B)

10. If only one school is named in a young person’s EHC plan, then that is the school the council has decided 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.
11. Where a parent's choice of school differs to a councils, before deciding whether it can refuse to name the parent’s choice due to the additional costs of transport to that school, the council must consider if both schools are suitable to meet the needs of the child and whether there is a place available for them to attend the council’s choice of school. If both schools are suitable and have places, then the cost of providing transport to both should be calculated and taken into account when considering whether the parent’s choice is incompatible with the efficient use of resources. If the council concludes the parent’s choice is an inefficient use of its resources, then it can refuse to name the preferred school or decide to name the parent’s choice on the condition the parents provide transport (to their choice of school). 
12. The council should take steps to ensure parents are well informed (where they are to be responsible for transport arrangements) and clearly record this, for example in a child’s EHC Plan or a decision letter (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.).
13. Where a parent’s choice of school is more expensive than the council’s, it must balance the extra cost (in funding transport to the parents’ choice of school) against any extra benefit it is claimed the placement will bring to the child or young person (Essex CC v SENDIST [2006] EWHC 1105 (Admin)).
14. Where there is a closer suitable school, the local authority can put a condition in Section I of the EHC plan saying this is the closest school but, the parents expressed a preference for another school. It can state the child can attend the preferred school on the condition the parents pay for the cost of the transport.
15. In S and another v Dudley Metropolitan Borough Council (2012) [EWCA Civ 346] the EHC plan stated the child could go to the preferred school but, the council considered the child’s needs could be met at a closer special school. The council argued it was only required to provide transport to the nearest suitable school.
16. The Court of Appeal set out the test council should apply when deciding whether or not they must pay for transport to a parent’s choice of school for a child eligible for transport. The test is:

• It should work out whether both schools are suitable and whether arrangements could be made for the child to attend the council’s choice of school. If the council’s choice is unsuitable, or there is no place available, then the parent’s choice is the nearest suitable school;
• If both schools are suitable, and a place is available at both, the cost of providing transport should be calculated and taken into account when considering whether the parents’ choice is incompatible with the efficient use of resources; and
• 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, then the council can name two schools, with the condition the parents provide transport to their choice of school.

17. This decision means that while parental preference is important, it is qualified by considerations of suitability and efficient use of resources, including transport costs.

Council Home to School Travel Policy

18. Parents have the right in law to state a preference for a school for their children, but that does not mean there is also a right to free transport.
19. One of the relevant categories for children (11-16) to meet to be eligible for free school travel includes students attending their nearest suitable Newcastle school and the walking distance from home to school is between 3 and 6 miles.
20. The nearest suitable school means the state school nearest to home with available places at the time places were allocated that provides education appropriate to the age, gender, and ability of the child, had the parent applied.
21. There is a two stage appeals procedure which can be used to present information about the exceptional circumstances of students who would not typically be eligible for free school travel:

• Stage 1: consideration by a senior officer who will review the decision on the basis of entitlement, distance measurements, route safety, and any exceptional circumstances. A detailed written notification of the outcome is sent within 20 working days of receipt of the request; and
• Stage 2: consideration by an appeals panel. The three members will be independent of the original decision-making process. The panel will make a decision considering both the needs of the parents and the Council. For exceptional circumstances to be considered, the written statement must include why the student’s circumstances are significantly different to their peers. A detailed written notification of the outcome will be sent to the parent within five working days of the panel’s decision.

Council’s Special Educational Needs Disability (SEND) Travel Support Policy

22. The policy states the young person must access a specialist educational setting that has been agreed by the Council as the closet setting to meet the young person’s needs to access SEND Travel Assistance.
23. An EHC plan, or attendance at a special school, or additionally resourced provision, does not guarantee travel or transport assistance.
24. There is a right to appeal its decision about: the child’s eligibility for home to school transport; transport offered; distance measurement in relation to statutory walking distances or extended rights; the safety of the route.
25. It explained parents can only appeal on these grounds. Circumstances, such as work commitments or siblings attending other schools, do not count towards the child’s eligibility for transport assistance.

What happened

26. Miss Y’s 12 year old daughter Z has an EHC plan which named her preferred school (school 1). Z has health issues and a learning disability. Miss Y is the sole carer for Z and her other two children, one of whom also is SEN. Miss Y said Z previously had home to school transport for school 1 but I have seen no evidence in support of this claim.
27. In May 2024, the amended final EHC plan was issued. The same month, the Council rejected Miss Y’s application for SEND Home to School Travel Support (travel support). It explained the categories for deciding eligibility under its Home to School Travel policy. It noted section I of Z’s EHC plan said she would attend school 1 as this was Miss Y’s preferred school but, the Council considered her needs could be met at school 2. The section also stated Miss Y agreed to take responsibility for transporting Z to and from school.
28. From September, Z attended school 1.
29. Miss Y makes two trips from home each day to take and bring Z home which is placing her under a great deal of strain. She finds it increasingly difficult to lift Z in and out of the car as her daughter gets older.
30. When Miss Y again applied to the Council for travel support in November, it was refused. The Council sent her the same letter it had sent in May although signed by a different officer.
31. In December, she appealed this decision and sent letters in support which included the school. In it, she explained why school 2 was unsuitable for Z and the impact taking her to school 1 was having on her and the family financially, emotionally, and physically. She explained her circumstances had changed since Z started there as Miss Y was no longer working because of the impact. She was also aware of another child nearby who has travel support to school 1 which Z could also use. She was struggling to physically lift Z in and out of the car. In addition, she could get to school 1 quicker than she could school 2 despite it being further away.
32. In February 2025, the Council sent her its SEND Transport Appeal stage 1 decision. This again referred to what was written in Z’s EHC plan about it. This meant she was ineligible as she was not accessing a specialist educational setting agreed with the Council as the closest setting to meet her daughter’s assessed needs. It said it noted the information she sent with her appeal when reaching this decision.
33. In March, Miss Y appealed this decision. In her submissions, she explained again why school 2 was not suitable and that it was quicker to get to school 1 even though it was further away. She explained she damaged her arm and as she could not lift Z into the car, she missed school. Miss Y’s mother was helping her with the school runs. She again explained the physical, mental, and financial strain on Miss Y and that she may need to look at home schooling. Miss Y was worried about how Z would get to school if Miss Y was ill or had appointments to get to. In a separate letter in support, she explained how she had to look after her other children, the financial cost in fuel each week, giving up her job, and how the Council failed to consider her case properly, particularly under S and another v Dudley Metropolitan Borough Council.
34. In April, the Council sent her its SEND Transport Appeal stage 2 decision, rejecting it. It said Z’s needs could be met in the maintained specialist school and school 1 was named as it was her preference. On this basis, she would be responsible for the transport.
35. In response to our enquiries, the Council stated:

• Both schools 1 and 2 were considered suitable for Z’s needs;
• School 2 is an outstanding special school;
• Miss Y appealed the placement at school 2 in the EHC plan which would be heard by the tribunal this year;
• Excluding transport costs, the cost of schools 1 and 2 was the same;
• The Council explained at the time of Miss Y’s tribunal hearing in April 2024, there was an existing shared school transport route to school 2 which cost it £6,000 a year. There was space to add Z to this route at a cost of £1.30 a day (£253 a year). It also explained a sole transport route was going to school 1 but, due to the needs of that child, safety, and the safety of others, this was the only option for that child. For Z to use sole transport would cost £152 a day (£32,000 a year).
• As a result, it did not consider it a reasonable use of public funds to provide her with transport to school 1. It asked three providers about transport costs to school 1, which ranged from £28,000 to £38,000. I have not seen evidence of this nor evidence showing when this was obtained. It had space on two existing routes to school 2, which cost £253 a day for five pupils and £260.44 for three pupils. The average cost per child would change if another pupil was added, but the daily cost would not. There were spaces on both routes which would mean no additional costs to the Council; and
• There were no exceptional circumstances it was aware of to agree transport to school 1.

My findings

36. I found no fault on this complaint for the following reasons:
1. I am satisfied the Council considered whether the school was suitable for Z. While Miss Y disagrees with its decision, this will ultimately be for the SEND tribunal to decide when it hears her appeal.
2. I am also satisfied it considered whether arrangements could be made for Z’s attendance at school 2.
3. As both were suitable, the Council then had to consider whether there was a place available at both. The Council confirmed there was a place available for Z at school 2.
4. The Council had to look at the cost of both schools and whether school 1 would be an inefficient use of resources. While the cost of the schools themselves was similar, the cost of transport for school 2 was significantly greater than that for school 1.
5. Miss Y was made aware of her taking on responsibility for transport to school 1 as is shown in the EHC plan.
6. Her appeals were properly considered and in line with Council policy. The sole ground for the appeal to consider was any information and evidence submitted by Miss Y about Z’s eligibility for home-to-school transport. The appeal decided she was not eligible because of what section I of her EHC plan said. This was the only issue it had to consider. It did not need to consider any of the circumstances Miss Y submitted. This is because the evidence about circumstances was for the EHC Placement Panel to consider when issuing the EHC plan.

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Decision

37. I found no fault on Miss Y’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman