Summary: We cannot investigate this complaint. Ms X has used a right of appeal, so this is not an issue the Ombudsman can deal with.

The complaint

1. Ms X complains:
• The Council failed to discuss transport at a time when choice of schools was considered. Ms X says it was only when she received a final Education, Health and Care (EHC) Plan naming a school with a condition of parental responsibility for transport that she found out transport would not be available.
• The Council failed to demonstrate there was a place at a nearer school to support it’s finding the school in the EHC Plan was named as parental preference.
• There is no evidence the Council or appeal panel applied the legal test comparing costs (including transport) of Ms X’s preferred school with the Council’s choice of school and therefore it is unclear how it decided Ms X’s choice, with transport costs, was not an efficient use of public resources.
2. Ms X says because of the alleged fault her child has not had free home to school transport since September 2025.

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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. 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; Local Government Act 1974, section 26(6)(a), as amended))
5. 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.
6. Due to the restrictions on our powers to investigate where there is an appeal right, there will be cases where there has been past injustice which neither we, nor the Tribunal, can remedy. The courts have found that the fact a complainant will be left without a remedy does not mean we can investigate a complaint. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 
7. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

8. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
9. I have considered Ms X’s grounds of appeal to the Tribunal.
10. Ms 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

Case law - S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346

11. The Court of Appeal set out the test that councils should apply when deciding whether they are obliged to pay for transport to a parent's choice of school when the child has an EHC Plan.
12. 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 (i.e. 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.
13. If both schools are suitable, the cost of providing transport to both should be established and taken into account when considering whether the parent's choice is incompatible with the efficient use of resources.
14. 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.
15. Where a parent disagrees that the school named in the EHC Plan by the Council is suitable, or consider it is suitable but consider their preference does not represent unreasonable public expenditure, they can appeal to the Tribunal for a determination. The Tribunal has the power to replace the Council's choice of school for the parent's choice and to require the Council to fund transport.
16. The Courts have found that the mere fact a parental / young person's preference is more expensive is not an automatic barrier to the efficient use of resources test. The Council or Tribunal must balance the statutory weight given to the parent / preference against the extra cost when deciding whether it is an inefficient use of resources. The Council or Tribunal must then, as a second stage, balance the extra cost against any extra benefit it is claimed the more expensive placement will bring to the young person. (Essex CC v SENDIST [2006] EWHC 1105 (Admin))

What happened

17. Ms X’s child, who has an EHC Plan, was moving to secondary school in 2025. Ms X’s preferred school was School A. This was named in the EHC Plan as the school her child should attend but the Council included a condition that the Council had no duty to provide free transport as it did not consider School A to be the nearest suitable school.
18. The Council did not specify which nearer school or schools it did consider suitable or if they had places.
19. Ms X visited eight schools and says School A was the only school that agreed it could meet need.
20. Ms X says the issue of transport was not discussed with her prior to her receiving the final amended Plan with the condition on transport.
21. Ms X appealed for free home to school transport at stage one and two of the Council’s transport appeal process, however the Council did not change its decision not to provide transport.
22. Ms X told us she had appealed to the Tribunal, but only about Sections B (needs) and F (provision), not Section I (setting).
23. The Council has informed us the appeal does include Section I and Ms X has raised the issue of transport with the Tribunal.
24. I have seen a copy of Ms X’s grounds of appeal which confirms that although she has stated the appeal is only about B and F in one part of the form, she has stated in another part of the form she disagrees with ‘something written in section B, F or I of the plan’. In her reasons for the appeal Ms X refers to the school in Section I ‘named but with an unlawful condition related to the cost of transportation’.

My findings

25. I am satisfied on the evidence I have seen Ms X has put the issue of transport and Section I of the EHC Plan before the Tribunal for determination. Therefore, I cannot investigate as the matter is not within our jurisdiction, being under the jurisdiction of the Tribunal.
26. Even if the Tribunal finds in Ms X’s favour, the fact the matter is now outside our jurisdiction does not mean we could look at loss of transport support in the period up to the appeal. While the Tribunal will also not be able to provide a remedy for any past loss, this does not mean that we are able to do so. (R (ER) v Commissioner for Local Administration, ex parte Field) 1999 EWHC 754 (Admin). 

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Decision

27. I have discontinued my investigation on the basis the complaint is outside our jurisdiction due to an appeal right being used.

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Investigator's decision on behalf of the Ombudsman