Summary: Ms X complained about the way the Council dealt with school transport for her son, Y, who has an education, health and care plan. The Council was at fault for failing to apply the correct legal tests when amending the education, health and care plan and making the school transport decision. This caused Ms X frustration and uncertainty. The Council should apologise, review Ms X’s application again, make a payment and make service improvements.

The complaint

1. Ms X complains about the way the Council dealt with school transport for her son, Y. She says the Council:
1. misapplied and inconsistently interpreted its school transport policy in her son, Y's case relying on unclear wording in section I of his education, health and care plan;
2. failed to give accurate and timely information about the bus route and shared incorrect information at panel meetings; and
3. wrongly said she had direct contact with another school and misinterpreted consultation outcomes.
2. Ms X says this has caused her significant distress and negatively impacted her mental health and family life. She also says she has spent countless hours chasing accurate information and correcting the Council’s errors. Ms X says this has impacted on Y’s wellbeing, stability and access to education.

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The Ombudsman’s role and powers

3. 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 any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
4. 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(i), as amended)
5. The courts have established that if someone has appealed to the SEND 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

7. I have not investigated Ms X’s complaints that the Council failed to give accurate and timely information about a bus route, shared incorrect information at panel meetings and wrongly said she had direct contact with another school. This is because, even if I were to investigate and find fault with these matters any injustice caused to Ms X and Y would not be significant enough to justify our involvement.
8. I have also not investigated Ms X’s complaint about the Council misinterpreting consultation outcomes. This is because Ms X had a right of appeal to the SEND tribunal about these matters. 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.
9. I have investigated the remainder of Ms X’s complaint.

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How I considered this complaint

10. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
11. 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

Legislation and guidance

EHC Plan 

12. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 

Content of an EHC Plan

13. The EHC Plan is set out in sections which includes Section I: The name and/or type of educational placement.

Appeal rights

14. There is a right of appeal to the Tribunal against a council’s description of a child or young person’s SEN, the special educational provision specified, the school or placement or that no school or other placement is specified in their EHC Plan.

Special Educational Needs and Disability (SEND) Code of Practice (The Code)

15. The Code addresses school preferences when a requested institution is further from home than a suitable alternative. It states that if a parent or young person prefers a school or college that is not the closest to their home, the local authority can still name the nearer, suitable institution in an EHC plan.

Arrangements for eligible children

16. 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. ‘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)

SEN Transport - nearest suitable school

17. If only one school is named in a young person’s EHC plan, then that is the school the council has determined 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.
18. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.

Children with EHC Plans – parental choice and transport

19. Where a parent's choice of school differs to a council's, 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). 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.).

Efficient use of resources - what must councils consider

20. 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)).

Council’s SEND Home to School Transport Policy

21. The Council’s policy says that children with an EHC plan the local authority will only provide transport to the nearest suitable placement. This means that where there is a second suitable placement named in Section I of the Plan that is nearer than the placement the child attends by parental choice then transport or travel will not be provided to the school attended by parental choice.

Background information

22. Y is a child in secondary school. He has an EHC plan because of special educational needs. He attends a mainstream School which I will refer to as School 1. School 1 is around five miles from Y’s home.

What happened?

23. This section sets out the key events in this case and is not intended to be a detailed chronology.
24. In November 2024, the Council consulted with schools about their suitability to meet Y’s needs. During this, another School, which I will refer to as School 2 told the Council it could not meet Y’s needs.
25. At the end of November, the Council wrote to School 2 noting it considered it to be suitable for Y with reasonable adjustments. But, that it was not the parents preferred provision and so it would not be naming it in section I of the EHC plan.
26. Shortly after this, the Council issued Y’s final EHC plan. Section I named School 1. The Council noted it accepted School 1 was suitable, but it was not Y’s nearest school. The Council wrote that it considered it was incompatible with the efficient use of resources to provide or fund home to school transport to School 1.
27. The Council also noted it considered the Code and agreed to name School 1 on the basis that Y’s parents accepted and continued to accept liability for arranging and funding home to school transport.
28. In January 2025 Ms X applied for school transport for Y.
29. The Council rejected Ms X’s school transport application in May because School 1 was not the nearest school to their home that could meet Y’s needs and so it considered him ineligible as stated in Y’s EHC plan.
30. Ms X appealed the Council’s decision not to provide transport in mid-May. She accepted Y’s nearest school was School 2, but this School had been clear it could not meet his needs. Ms X was unhappy the Council ignored School 2’s view. She noted that even if Y attended School 2, he would still need transport as there is no footpath from his home to there.
31. Shortly after this, internal Council emails noted that the Council had challenged School 2 who said they could not meet Y’s needs because it had not provided enough evidence of unsuitability.
32. A few days later, the Council wrote to Ms X with the outcome of its stage one appeal. It noted its policy stated that funded school transport would only be provided to the nearest suitable school that has a place available and is over the relevant statutory walking distance for that child’s age, which would be three miles for Y. It noted School 1 was Y’s fifth nearest school and so he was not eligible for funded school travel.
33. The Council also said it agreed to name School 1 in Y’s EHC Plan on the basis that Ms X accepted and continue to accept liability for arranging and finding transport. If Ms X was no longer willing to do so, then it would expect Y to transfer to his nearest suitable school.
34. Ms X disagreed with the Council’s decision and appealed to stage two.
35. The Council held the stage two appeal at the end of May. It wrote to her at the beginning of June rejecting her appeal, it said:

• it could not consider her appeal on the grounds of route safety, because Y was not attending the nearest suitable school;
• School 1 and School 2 raised concerns about their ability to meet Y’s needs but the Council considered both to be suitable with reasonable adjustments;
• the committee noted School 1 was named in the EHC plan because this was Ms X’s preferred school to meet Y’s needs. But, there was insufficient evidence to demonstrate that School 1 was the nearest suitable school for Y;
• The committee noted Ms X’s concerns about the interpretation of section I of Y’s EHC plan and that she believed naming School 1 would not impact on eligibility for funded transport. It acknowledged that Ms X acted in good faith and followed the advice and processes as she understood them at the time; and
• The committee recognised there may have been a lack of clarity around the implications of naming a school in section I, particularly in relation to the distinction between parental preference and legal entitlement. The committee noted it is required to apply the school travel policy as written and because School 1 was named in the EHC plan based on parental preference and not professional recommendation, it could not identify exceptional circumstances, and so Y was not entitled to funded transport.

Findings

36. The Ombudsman is not an appeal body for school transport appeals, that is the role of the Council. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong. If we find there was fault in the decision-making process, we normally ask a council to hear the appeal again. We do not come to a view on whether the appeal should be upheld.
37. I have therefore considered how the Council reached its decision.
38. The Council only named one school in Y’s EHC plan. Despite the Council noting this was parental preference, according to the Code, because School 1 was the only named school, it is the nearest suitable school for transport eligibility. The Council failed to accept this at any point throughout the appeal process, which was fault. This caused Ms X uncertainty and frustration.
39. In its stage one appeal response in May 2025, the Council applied the wrong eligibility criteria for transport for children with special educational needs. It noted that its policy says transport would only be provided to the nearest suitable school that has a place and is over the relevant statutory walking distance for that child’s age. Distance of the school is not relevant when a child is eligible under the special educational needs criteria, instead the criteria is whether a child can reasonably be expected to walk to the nearest suitable school. The Council’s response was fault, which caused Ms X uncertainty.
40. I also found no evidence the Council or appeal panel considered:

• cost information for nearer schools, it only calculated distances; or
• evidence the Dudley test was applied to determine if parental choice represented an inefficient use of public resources considering transport costs to each placement. There is no evidence cost information was collected nor available to any of the decision makers. I would have expected to see reference costs of each placement and the cost of transport in the Council’s initial decision to name School 1 in the EHC plan, appeal case and decision letters, but these were not mentioned.

41. This is fault and casts doubt on the decisions the Council reached.
42. It is open to the Council to review an EHC plan and add the name of a nearest school it considers suitable, but the Council would need to evidence that a place was available, provide cost information and show that it had considered the inefficient resources test. In this scenario, if Ms X disagreed that the Council’s choice of school was suitable, or considered it was suitable, but her choice was not an inefficient use of resources, she would have a right of appeal to the SEND Tribunal when an amended final plan was issued. We would expect her to use this appeal right if she was dissatisfied.

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Action

43. Within four weeks of our final decision, the Council will:

• apologise to Ms X and Y for failing to apply the correct legal tests when amending the EHC plan and making the school transport decision;
• review Y’s eligibility for home-to-school transport on the basis the current EHC plan names only one school, which is therefore the qualifying school for transport eligibility. If the Council decides Y is eligible for transport help, it should refund transport costs Ms X has incurred since Y started secondary school. If the Council decides Y is not eligible, or Ms X disagrees with the nature of transport offered, the Council should provide the usual transport appeal rights to Ms X against its decision; and
• pay Ms X £250 for her time and trouble bringing the complaint and for the injustice of not having her application and appeal properly considered.

44. Within eight weeks of my final decision, the Council will:

• provide the Ombudsman with evidence it has provided training and updated guidance to all relevant staff (SEND and transport teams, appeal members) on how to apply the Dudley test for pupils with EHC plans; and
• will review that its information for parents whose children have EHC plans references the Dudley test and they are signposted to accurate information about transport at the time they need to express a preference for a particular school. The information should advise parents of their right to appeal to the SEND Tribunal if they disagree with the Council’s decision on naming two schools or a decision on inefficient use of resources.

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

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Decision

46. I find fault causing injustice. The Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman