Summary: We will not investigate Mrs X’s complaint about the Council refusing to grant home to school transport as it is unlikely we would find fault which has caused her to lose out on transport.

The complaint

1. Mrs X says the Council should not have refused her home to school transport application.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended.

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How I considered this complaint

3. I considered information provided by Mrs X and the Council’s decisions.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

Background law

5. 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)

6. The Department for Transport has issued guidance on an internal appeals process Councils should have.

What happened here:

7. Mrs X applied for home to school transport for her child B, to attend School Y from September 2026. The Council refused and Mrs X appealed. The Council still refused.
8. School Y is not B’s nearest state school. School Z is. Both schools are within three miles of their home.
9. Mrs X said she believed School Y is the suitable school for B due to family connections to the school, a sibling attending and because of its approach to SEN. She says B has SEN issues which fall below the threshold to qualify for an Education Health and Care Plan (EHC Plan). She also says that B cannot walk on their own to school because of their SEN.
10. The Council’s appeal panel said it would not use its discretionary power to provide home to school transport even though the case did not meet the duty to do so because:

“The panel in its deliberations also considered the option to apply discretionary power but felt that the nearest suitable school had not been chosen and the choice of School Z was one of parental preference and that without an EHCP giving a named school they were unable to offer this option. “

11. Mrs X says this means the Council has ‘fettered its discretion’. She says this decision reasoning means it has limited itself to only providing discretionary transport when a child has an EHC Plan. She says she believes the Council has not properly considered her evidence submitted about Y’s ability to walk to school.

Analysis

12. Councils are entitled to decide to consider if there is discretion to disapply the need for the nearest school and refuse the appeal solely on this. We are unlikely to find fault in the Council doing so. Here the Council decided it could not use its discretion to overturn the need to go to the nearest school. While Mrs X’s may believe School Y is better placed to meet B’s needs than School Z, if B needed School Y for SEN needs then as the Council says, B would have an EHC Plan naming School Y. A suitable school for home transport purposes is not the most suitable school it is any school which is suitable. Given B does not have an EHC Plan any state school should be able to provide for their SEN.

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Final decision

13. We will not investigate Mrs X’s complaint because it is unlikely we would find fault.

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Investigator's decision on behalf of the Ombudsman