Summary: Ms X complained the Council did not apply the correct legal test when it named two schools on an Education, Health and Care plan, with the parental choice named on the basis parents were responsible for transport costs. We have discontinued our investigation. Ms X has used a right of appeal to Tribunal about the same matter therefore the Ombudsman has no discretion to investigate.

The complaint

1. Ms X complains the Council did not apply the correct legal test when it considered which placement(s) to name on an Education, Health and Care (EHC) plan, when the Council and parent preferred different schools. Ms X says the Council should have compared the cost of the two placements, including transport costs when deciding whether the parental choice of school was an ‘efficient use of resources’. This failure meant that Ms X’s child was refused free home to school transport for six weeks which had a negative impact on Ms X’s income. Ms X also incurred travel expenses and was put to unnecessary time and trouble resolving the issue with the Council.
2. While the Council has now rectified the EHC plan and awarded transport, Ms X complains the Council has not provided an appropriate remedy for the six weeks the family was without transport.

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The Ombudsman’s role and powers

3. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. This applies even if the tribunal has not provided a complete remedy for all the injustice claimed. The Courts have noted that while this creates a situation where loss has been suffered and no remedy for the loss will be provided, Parliament must have contemplated that such situations would arise when it set out the Ombudsman’s powers. (Local Government Act 1974, section 26(6)(a), R v the Commissioner for Local Administration ex parte PH, 1999)
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 can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

7. I have considered information provided by Ms X and the Council including the complaint correspondence, appeal documents and the EHC Plan.
8. I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014 and associated Regulations and Code of Practice
• Department for Education ‘Home to School transport guidance’, July 2014 (‘The Guidance’)

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What I found

Relevant law

9. 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 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.
10. 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. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
11. When a first or amended draft EHC plan is issued the child’s parents, or the young person, have the right to express a preference that the Council name a particular school. (Children and Families Act 2014, s.38(2))
12. Where the parent or young person requests a maintained school then the Council should name that school on the EHC plan unless:
• It is unsuitable for the age, ability, aptitude or SEN of the young person, or
• The attendance of the young person at the requested school is incompatible with:
1. The provision of efficient education for others, or
2. The efficient use of resources. (Children and Families Act 2014, s.39(3))
13. 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.
14. Where the parent and the Council prefer different placements under s.38 Children and Families Act, but attendance at the parent preference would lead to additional transport costs, the Court of Appeal has set out a test (‘the Dudley test) that councils should apply when deciding whether they are obliged to pay for transport to a parent's choice of school:
• 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 (that is whether 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.
• If both schools are suitable, the cost of providing transport to both should be established when considering whether the parent's choice is incompatible with the efficient use of resources.
• Only 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, can the council name two schools, with the condition the parents provide transport to their choice of school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)
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 SEND Tribunal for a determination. The Tribunal has the power to replace the Council’s choice of school for the parent’s choice as the named school on the EHC plan.

Key events

16. Ms X’s child had an EHC plan. This was amended in Summer 2022 to name a new placement from September.
17. The Council agreed Ms X’s choice of placement as parental preference but said another nearer school could also meet need. It named both schools on the EHC plan and stated Ms X was responsible for transport costs as her choice was not the nearest suitable school.
18. Ms X disagreed both schools could meet need and asked the Council for evidence it had applied the Dudley test including the cost information (including transport) for both schools.
19. When the Council did not supply this information Ms X issued an appeal to the SEND Tribunal asking it to:
• order the Council to apply the correct test and,
• name the parental preference school as the only suitable school.
20. The Council then resolved the complaint by amending the EHC plan to name Ms X’s choice of school as the nearest suitable school and providing free transport. It did not respond to the appeal, which was not pursued.

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Final decision

21. I have discontinued my investigation because Ms X has used an alternative legal remedy to the SEND Tribunal where the substance of the appeal was the same as the complaint she has asked us to consider. As an appeal right has been used the Ombudsman has no discretion to investigate. (Local Government Act 1974, section 26(6)(a), as amended)

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Investigator's decision on behalf of the Ombudsman