Summary: We will not investigate Mrs X’s complaint about the Council’s decision not to provide her child with funded transport to school. This is because there is not enough evidence of fault by the Council to warrant further investigation.

The complaint

1. Mrs X complains that the Council refused to provide funded transport for her child, Y, arguing that the named placement in Y’s Education Health Care (EHC) plan is the nearest suitable school. However, the Council said the school was named in line with parental preference and there are nearer suitable schools, which Mrs X disputes.

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The Ombudsman’s role and powers

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))

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How I considered this complaint

2. I considered information provided by Mrs X and the Council, which includes the home-to-school transport application decision and review and appeal documents.
3. I considered the Ombudsman’s Assessment Code.

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My assessment

4. Mrs X asked the Council to provide funded transport for her daughter, Y.
5. The Department for Education’s statutory guidance says councils must provide free transport for eligible children who attend their nearest suitable school and:

• live beyond the statutory walking distance,
• cannot reasonably walk to school due to special educational needs, disability, or mobility issues (even with a parent), or
• cannot walk to school safely, even with a parent.

6. Mrs X believes Y qualifies for funded transport because the school named in Y’s Education, Health and Care (EHC) plan, she believes this is the nearest suitable school.
7. However, Y’s EHC plan clearly says the named school is the parents’ preferred choice and was included on the condition that parents would provide transport. It also says that if the parents can no longer do so, the Council will name the nearest suitable school instead.
8. Caselaw allows Councils 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).
9. Councils must offer an appeals process for transport decisions. Government guidance recommends:

• Stage 1: a senior officer reviews the decision.
• Stage 2: an independent panel considers the case and provides a detailed decision with reasons and advice on next steps.

10. Mrs X challenged the Council’s decision through the appeal process, arguing there are no nearer suitable schools.
11. The Transport Appeals Committee panel considered Mrs X’s representations, as well as Council policies and relevant guidance. However, the Council showed that other, closer schools could meet Y’s needs.
12. The Transport Appeals Committee did not uphold Mrs X’s appeal on the basis the named school is not the nearest suitable school, so the Council will not fund transport for Y.
13. The Committee were sympathetic to the parents’ difficulties in providing transport but said that alone does not justify funded transport.
14. We will not investigate Mrs X’s complaint about the Council’s decision not to provide Y with funded transport to school. The Council followed the correct processes, and further investigation is unlikely to find evidence of fault by the Council.

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Final Decision

15. We will not investigate Mrs X’s complaint because there is not enough evidence of fault to justify our involvement.

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Investigator's decision on behalf of the Ombudsman