Summary: There was fault by the Council, because it cannot show it properly followed the legal process when refusing an application for school transport. The Council has agreed to write a formal letter of apology for this, and take steps to ensure its staff understand and can apply the law when making similar decisions in future.

The complaint

1. I will refer to the complainant as Mr P.
2. Mr P complains the Council has refused to provide home to school transport for his daughter, F, who has significant disabilities. He says this is on the basis there is suitable provision available nearer to home, but that the Council has not actually identified any particular school it considers F could attend. As a result, Mr P says he has to transport her to school himself, meaning he cannot work, and causing financial hardship.

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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 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)

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What I have and have not investigated

5. Mr P’s complaint to the Ombudsman is that the Council has refused to provided school transport for F for more than five years. This is because it originally refused his application for transport in 2020, a decision it reaffirmed in 2025 following a second application from Mr P.
6. The law says a person should approach the Ombudsman within 12 months of becoming aware of an issue they wish to complain about. This is called the ‘permitted period’. Any matter which falls outside the permitted period is late, and the law says we should not generally investigate such complaints.
7. We do have the flexibility to disapply this restriction where we consider it appropriate, but we must first be satisfied there is a good reason for a person’s delay in approaching us. In this case though, there is nothing to suggest Mr P could not complain about the Council’s original decision at the time, and so I do not consider we have grounds to disapply the restriction.
8. My investigation will therefore only cover the Council’s decision on Mr P’s more recent application for school transport.

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How I considered this complaint

9. I considered evidence provided by Mr P and the Council as well as relevant law, policy and guidance.
10. I also shared a draft copy of this decision with each party for their comments.

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What I found

Home to school transport

11. 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. ‘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. For a child with an education, health and care (EHC) plan, where their parent's choice of school differs to the council's, 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.
13. 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). 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.).

Mr P’s complaint

14. In 2020 Mr P applied to the Council to provide transport for F between home and school. The Council refused Mr P’s application on the basis that F’s school was parental preference, and said there was a nearer school that was suitable for her. Mr P says this meant he had to drive F to and from school every day from this point, meaning he was unable to work.
15. In 2025 Mr P and his family moved to a new home which was further away from F’s school. He therefore applied again for school transport for her, but the Council again refused his application on the same basis as before. It maintained this decision through both application stages and in his appeal.
16. Mr P then referred his complaint to the Ombudsman.
17. In September, F transferred to a post-16 educational placement. This placement was agreed by both parties, and the Council is now providing transport for F.

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Analysis

18. The law permits the Council to require a child’s parents to be responsible for their school transport, where it is satisfied there is nearer suitable provision which it is reasonable for the child to attend.
19. In section I of F’s EHC plans of both February 2020 and March 2024, the Council wrote:

“[F’s] parents have expressed a preference for her to attend [school] from September 2020 to which the LA gives effect, however, suitable provision is available more locally. Therefore, applying part 9 of the Education Act 1996, [F’s] parents are responsible for the travel assistance to and from the parents’ preferred school.”

20. In the narrow sense, the Council was entitled to make this decision; and while I note Mr P has advanced various arguments why he considers it was necessary for F to attend this school, it is not for me to make my own judgement about this.
21. However, the tests set out in Dudley and other caselaw say a council must make clear that the parents’ choice of school will lead to excessive costs, and therefore be an inefficient use of resources, in comparison to the nearer school(s). It should do this by carrying out specific calculations about the relative costs for each school, including transport.
22. Noting that neither the 2020 nor 2024 iterations of F’s EHC plan actually named an alternative school, I asked the Council to explain which nearer schools it considered were suitable for F, and how it established this. In response, the Council explained it had carried out a consultation exercise at the beginning of 2025, as part of its planning for F’s transfer to post-16 education, and that several of the establishments it consulted agreed they could meet F’s needs.
23. However, the purpose of this exercise was to decide which establishment F would attend from September 2025 onwards, when she entered post-16 education. It had nothing to do with the matter at hand, which was whether the Council should provide transport to her current school, at the time Mr P made his application for it. Indeed, it appears that most of the establishments the Council consulted with could not have accepted F before September 2025 anyway.
24. There is no other evidence to show the Council actually identified one or more particular schools which were closer to F’s home, and suitable for her. Rather, it appears the Council simply declared this to be the case, and relied on this as a reason not to provide transport. This was not adequate to meet the legal test.
25. This does not mean the Council should definitely have agreed to provide transport for F. As I have noted, it is not for me to make my own judgement on the suitability and availability of schools, and it may well be the case there was a nearer school F could have been attending. The fault here arises from the fact the Council cannot show that it properly investigated and documented this, not that it wrongly refused to provide transport.
26. In his complaint to the Ombudsman, Mr P says he wishes to be reimbursed for his transport costs and loss of income for the five years he was transported F to school. There are several reasons we would not recommend this. First, my investigation only covers the period since his more recent application. Second, I cannot say he would be in any different position, even if the Council had not been at fault. And third, we cannot make decisions about consequential loss of earnings like this, especially given the very significant figure this would likely amount to after five years. Mr P would need to pursue this through the courts instead.
27. I am satisfied the Council’s fault gives rise to a degree of frustration for Mr P, but as I cannot say anything more definitive than that, I consider a formal letter of apology to be the appropriate remedy.
28. In a case like this we would also normally recommend the council review and remake its decision on the application, to ensure it does so in accordance with the law. But F has already moved to a different establishment, and the Council is now providing transport anyway, and so there is nothing to be gained from this.
29. However, I do consider the Council should ensure those of its staff who are responsible making decisions on school transport applications are properly familiar with the requirements of Dudley and other relevant caselaw.

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Action

30. Within one month of the date of my final decision, the Council should:

• write a formal letter of apology to Mr P, acknowledging the frustration caused by its failure to properly explain and document its decision on his school transport application. 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 in my findings; and
• make arrangements to ensure all relevant staff understand the practical implications of the case of Dudley and other caselaw concerning school transport applications, and are confident in applying it when making decisions.

31. The Council should provide us with evidence it has complied with the above actions.

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Decision

32. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman