Summary: Miss Y complains about the Council’s decision to refuse to provide transport assistance for her daughter, D, to attend the school named in her EHC Plan. There is fault because the Council based its decision on factors which were not relevant. This is because it said there are closer schools which D could attend, however those schools are not named in her EHC Plan. The Council will complete the agreed actions to remedy the injustice caused by fault.

The complaint

1. Miss Y complains about the decision not to provide her daughter, D, with bespoke transport to attend the school named on her EHC Plan. Miss Y says because of D’s needs she cannot travel by public transport. Miss Y says, due to her own health problems, she cannot accompany D.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an appeal panel made its decision. If there was no fault in how the panel made its decision, we cannot question the outcome. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

5. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
6. We made enquiries of the Council to obtain D’s EHC Plan and the appeal paperwork, which I considered.
7. Miss Y and the Council had an opportunity to comment on a draft decision. I considered any comments received before making a final decision.
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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What I found

What should happen

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 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)
10. 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.)
11. This approach is echoed in the statutory government guidance: ‘Travel to school for children of compulsory school age’. In summary, this says:
• Parents have the right to ask for a school to be named in the EHC Plan and that school must be named unless the Council considers it is unsuitable for the child’s age, ability, aptitude or special educational needs.
• The Council must also consider whether the preferred school is compatible with the efficient education of others or the efficient use of resources. As part of this consideration, the Council must consider whether the cost of transport is compatible with the efficient use of resources.
• Where the child is eligible for free transport, the Council should consider the cost of travel. The travel arrangements may be relevant to the decision about naming the school. For example, the impact of the journey on the child and their education.
• If the Council considers the parent’s preferred school would be unsuitable for any of the above reasons, the Council must name a different school.
• If the Council decides the parent’s preferred school is incompatible with the efficient use of resources it may:
1. Name a different school that would be appropriate; or
2. Name the parent's preferred school on the condition the parent arranges the travel or provides some or all of the cost; or
3. Name both schools; this is on the condition the parent arranges all or some of the cost to their preferred school or the Council provides transport to a different school which is also appropriate for the child’s needs.
12. The guidance says, “Although transport should not normally be recorded in a child’s EHC plan, when the local authority names the parent’s preferred school on the condition that the parent arranges or pays for the travel, they may set out this condition in Section I of the plan”.
13. The Council’s ‘Education Travel Assistance’ policy says:

“The nearest suitable school for transport purposes is the nearest suitable school designated by Bromley Council’s EHCP Coordinator. Parents have the right to consider other schools which may also be suitable, the Council will have regard to parental preference and meet this where appropriate. However, parents and carers will need to be mindful that choosing an alternative school may impact eligibility for support with transport, if the school is further away, and may result in additional avoidable costs to the local authority”.

“Where parents are considering a school further away than an alternative being proposed by Bromley Council, the co-production process will provide them with clear and timely information about the travel implications so that they can express an informed preference and understand they will most likely be responsible for getting their child to school, if they chose a school other than that regarded as the nearest suitable school by the Council”.

What happened

14. Miss Y has a daughter whom I will call D. She has special educational needs and an EHC Plan which the Council issued in August 2023. D has attended the school named in her EHC Plan since September 2022. When D started the school, she did not have an EHC Plan and was admitted through the mainstream admissions process.
15. D’s EHC Plan does not name an alternative school in Section I. It is also silent on any agreements regarding parental transport funding.
16. The school attended by D is a considerable distance from her home address. Miss Y currently transports D to and from school. D is eligible for free public transport under the Transport for London scheme. Miss Y says D cannot manage public transport due to her needs.
17. In June 2023 Miss Y applied to the Council to receive bespoke transport assistance for D. The Council refused the application on the basis that D is not attending the closest school that can meet her needs.
18. Miss Y challenged this decision in July. The Council re-considered the application but maintained its refusal. In summary, it said:
• D’s place at school was originally secured through the mainstream co-ordinated admission process to start Year 7 in September 2022 and before her EHC Plan was issued.
• D’s school was the highest preference on the school admissions application and the Council offered a place through the mainstream oversubscription criteria.
• There are eight closer schools to D’s address than the school she attends.
• The Council considered the grounds put forward by Miss Y. She said it was not possible for D to change schools now as she is settled. Miss Y also referred to her own health conditions. The Council said Miss Y had not provided any evidence to support her medical claims, nor had she said why a change of school was not possible.
19. Dissatisfied with the decision, Miss Y asked for an appeal at the final stage of the Council’s appeal procedure. This involves consideration by an appeal panel.
20. The appeal went ahead on 9 October 2023. The panel considered the information put forward by Miss Y but said there are several schools closer to the home address than the one attended by D. Except for one of those schools, Miss Y did not list any on her application form and made a “conscious decision” to seek a school further away from home.
21. The notes of the appeal panel include the following comments:

“She [Miss Y] has been making the journey a year before EHCP was made, so she was happy to be doing this”.

“All that’s changed is that the child has now been awarded an EHCP. Mum had already made decision that she would travel based on no EHCP”.

22. The panel did not uphold the appeal. It told Miss Y “… there are closer mainstream schools to your home address that you could have applied for. The travel assistance decision was made in line with the Council’s Education Travel Assistance Policy”.
23. Dissatisfied with the outcome, Miss Y approached the LGSCO.

Was there fault in the Council’s actions causing injustice to Miss Y and D?

24. The Ombudsman is not an appeal body. 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.
25. I have considered the steps taken by the Council consider Miss Y’s application for transport, and the information it took account of when deciding to refuse that application. In my view, there is fault in the process followed by the Council because its decision did not comply with the relevant parts of the statutory guidance. Nor did the Council consider whether, in line with its local policy, it provided Miss Y “…with clear and timely information” when naming the school in D’s EHC Plan.
26. Section I of D’s EHC Plan names only one school. This is the school she has attended since September 2022 and the one which Miss Y seeks funded transport for. D’s EHC Plan is silent on any implications for transport assistance. If the Council considered that a school closer to D’s address was equally or more suitable than the one she now attends, it should have named this in her EHC Plan. The Council did not. In line with the Council’s policy, it should have provided clear information to Miss Y about the implications for transport funding if it felt there were closer schools which could meet D’s needs. Based on the information seen, the panel did not satisfy itself the Council did this.
27. Therefore, in the absence of any other named schools, we can say the Council decided in August 2023 the school attended by D is her nearest suitable school. This is a relevant point for transport eligibility and is echoed in the Council’s own policy which says the school designated by the EHC Coordinator is the nearest suitable school for transport purposes.
28. There is no evidence to show the panel properly considered this important point when it refused Miss Y’s appeal. The panel’s primary focus was the availability of other local schools. But the panel did not know whether those schools could meet D’s needs. Had any of those schools been considered suitable for D, they could and should have been named in her EHC Plan. For the reasons explained in the paragraphs above, the Council has already determined – via Section I of D’s EHC Plan – that D is attending her nearest suitable school. The panel must consider this.

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Agreed action

29. Within four weeks of my final decision, the Council has agreed to:
• Arrange a fresh appeal for Miss Y with a different panel. The Council should ensure the panel makes its decision in line with the requirements of the statutory guidance. If the fresh appeal is successful, the Council should refund transport or fuel costs caused as a consequence of the fault. The refund should cover the period from Miss Y’s application for transport. The Council should make any refunds within four weeks of the appeal hearing.
30. Within twelve weeks of my final decision, the Council has agreed to:
• Arrange staff training for decision makers and panel members. The training should focus on how officers determine which school is deemed the nearest suitable for young people with EHC Plans. The training should be based on the statutory guidance.
31. The Council will provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman