Summary: Miss X complained the Council wrongly decided not to fund school transport for her son Y to the school named in his Education, Health and Care Plan, and blamed Miss X for not choosing a closer school. The Council was at fault for failing to provide Y travel assistance and not properly considering Y’s eligibility. The Council agreed to reimburse Miss X’s financial loss in driving Y to and from school between September 2019 and July 2022, and pay her £300 to recognise the distress and uncertainty caused to her. The Council agreed to arrange travel assistance for Y from September 2022.

The complaint

1. Miss X complained the Council wrongly decided not to fund school transport for her son Y to the school named in his Education, Health and Care Plan, and blamed Miss X for not choosing a closer school. Miss X said she had to drive Y to and from school every day which cost her time and money and the Council’s response caused her distress.

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What I have investigated

2. I have investigated matters from when Miss X first applied for school travel assistance in 2019. Miss X did not appeal the Council’s decision then because she believed that Y was not eligible. When she became aware Y was in fact eligible, she followed the Council’s appeal route and then complained to us. The injustice caused to Y began in 2019.

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The Ombudsman’s role and powers

3. 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)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 SEND Tribunal in this decision statement.
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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)
8. 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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How I considered this complaint

9. I read the documents provided by Miss X and discussed the complaint with her on the telephone.
10. I read the documents provided by the Council in response to my enquiries.
11. I consider our Guidance on Remedies, which is available on our website.
12. I considered The Special educational needs and disability Code of Practice: 0 to 25 years.
13. I considered the Home to school travel and transport statutory guidance for councils.
14. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

15. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section I names the school the child should attend. There is a right of appeal to the SEND Tribunal about the content of the final EHC Plan.
16. 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. ‘Eligible children’ includes:

• children living outside ‘statutory walking distance’ from the nearest suitable school (two miles for children under eight, three miles for children aged eight and above); and
• 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 (Education Act 1996, 508B(1) and Schedule 35B)

17. The parents’ or child’s preferred school might be further away from their home than the nearest school that can meet the child’s needs. Where a child has Special Educational Needs and an EHC plan, the council can name the nearer school in the plan if it considers it to be appropriate for meeting the child’s needs. If the parents prefer the school that is further away, the council may agree to name this in the plan but is able to ask the parents to provide some or all of the transport funding. (Special educational needs and disability Code of Practice: 0 to 25 years 9.214)
18. If only one school is named in a child’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.
19. The Government recommends councils have a two-stage appeals process for parents who wish to challenge a decision about their child's eligibility for travel support:
• Stage one: Review by a senior officer.
• Stage two: Review by an independent appeal panel.
20. Government guidance says a senior officer should review the decision and write to the parent with the outcome of the review. This letter should include how the officer has reached their decision and the factors considered.
21. If the parent remains dissatisfied, they can request escalation to stage two. The panel should meet and consider both written and verbal representations from the parent and the council. The panel should notify the parent of the outcome of their review within five working days.
22. The government recommends councils follow this appeal process, but they do not have to. However, as this process is set out within statutory guidance, we would expect councils to follow it, unless there was good reason to depart from it.

Council policy

23. The Council’s home to school transport policy states that travel assistance will use the most cost effective and appropriate mode dependent on the child’s age and individual needs. This may include bus, taxi or the payment of a personal budget.

What happened

24. Y moved from primary school to secondary school in September 2019. Y had special educational needs and an EHC plan that set out the necessary provision to meet those needs.
25. The Council consulted with two secondary schools to see if they could meet Y’s needs. School One and School Two both said they could meet Y’s special educational needs (SEN). Y lived closer to School Two. Miss X’s wanted Y to attend School One and the Council named School One in Y’s EHC plan from September 2019. School One was 6.5 miles away from Y’s home.
26. In preparation for Y going to School One, Y’s primary school applied for travel assistance for Y on Miss X’s behalf in April 2019. It said Y could not travel independently and had no sense of danger.
27. The Council responded to Miss X said Y was not eligible for travel assistance. The Council did not offer any explanation.
28. In September 2019 Y began attending School One. Miss X began driving Y to and from school each day.
29. Miss X stated in 2021 she became aware that Y was in fact entitled to travel assistance after a conversation with a Council Officer. Miss X applied for a personal transport budget for Y in December 2021. She said he could not use public transport as he did not have any awareness of danger due to his SEN. Miss X requested the fuel costs for the 26 miles she drove each day to take Y to school and back.
30. The Council responded to Miss X and said Y was ineligible for travel assistance. It said Y was not attending his nearest suitable school. It told Miss X of her appeal rights against the decision.
31. Miss X appealed against the decision in January 2022. She said that Y was attending the nearest suitable school that could meet his needs.
32. The Council upheld its decision. It said School Two said it could meet Y’s needs in 2019 and so it was the nearest school. It told Miss X of her appeal right.
33. Miss X appealed at stage 2. She said School Two could not meet Y’s needs and she had chosen School One and Y was entitled to travel assistance.
34. The Council held a panel meeting in February 2022. It upheld its decision not to provide travel assistance for Y. It said both schools could meet Y’s needs and it had named School One because it was Miss X’s preference. It said because School One was Miss X’s choice it did not have to provide travel assistance. It said its decision was in line with the statutory guidance. It apologised the Council Officer had previously misinformed Miss X about the entitlement.
35. Dissatisfied with the council’s response Miss X complained to us.
36. In response to my enquiries the Council stated it did not hold minutes of the panel meeting as the decision was recorded in its stage 2 response letter to Miss X.

My findings

37. There is no evidence the Council discussed transport arrangements with Miss X before naming School One in the plan, or made it clear that if it agreed to name School One, this was on the understanding that it would not fund transport to this school.
38. Y had an EHC plan that named School One, therefore School One was the qualifying school.
39. Y was an eligible child because he lived more than three miles from the qualifying school. There is no evidence the Council considered if Y could be reasonably expected to walk because of his SEN. However, Y was eligible for travel assistance due to the distance regardless of whether it was reasonable to expect him to walk.
40. Y was entitled to travel assistance when he started at School One in September 2019 and remains entitled at the date of this decision.
41. The Council wrongly decided that Y was not entitled to travel assistance because School Two said it could meet Y’s needs. That was fault and not in line with the guidance.
42. The Council could have named School Two on Y’s EHC plan. Miss X would then have had the opportunity to appeal that decision to the SEND tribunal. The Council did not do so and therefore cannot deny travel assistance on that basis.
43. The Council did not explain its reason for refusing travel assistance to Miss X in 2019. That was fault. Miss X believed Y was ineligible and did not appeal the decision
44. There is no evidence the Council considered the impact of Y’s SEN on his ability to walk to school or use public transport in making its decision. The Council did not explain what factors it had considered and how it made its decision in its initial or stage one response. That was not in line with the government guidance and was fault.
45. The faults identified caused Miss X distress and uncertainty about Y’s entitlement and her responsibility for the lack of travel assistance. It also caused Miss X financial loss in having to take Y to and from school.
46. The remedy I have recommended below is for quantifiable financial loss incurred by Miss X in driving Y to and from school between September 2019 and July 2022. The Council should calculate this remedy by multiplying the number of days Y attended school between September 2019 and July 2022, by 26 (the mileage Miss X travelled each day). It should reimburse Miss X at 45p per mile in line with the government mileage payment allowance.
47. The fault I have identified during this investigation is likely to affect other people who have applied for travel assistance in similar circumstances. Therefore, I have made a recommendation to prevent the same fault affecting others.

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Agreed action

48. Within one month the Council will:
• write to Miss X and apologise for the injustice caused to her by the faults identified above;
• reimburse Miss X the costs incurred taking Y to and from school between September 2019 and July 2022, calculated as outlined in paragraph 46;
• pay Miss X £300 to recognise the distress and uncertainty caused to her by the Council’s failure to properly consider her request for travel assistance and to inform her of its considerations; and
• contact Miss X and arrange suitable travel arrangements for Y, in line with the legislation and its own policy, in preparation for Y’s return to school in September 2022.
49. Within three months the Council will:
• remind relevant staff of the government guidance in considering and responding to school travel assistance requests and appeals including providing the factors the Council considered and how it made its decision;
• provide training to relevant staff on SEN travel eligibility in relation to qualifying schools named on EHC plans; and
• review all SEN transport requests it has declined since September 2021 and identify if the same fault affects others. The Council will take appropriate steps to remedy any identified injustice caused by the same fault.
50. The Council will provide us with evidence it has completed the recommendations.

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Final decision

51. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman