Summary: Mrs B complains the Council did not properly consider her appeal against its decision on home to school transport assistance. She says her nearest school is not suitable and she cannot provide transport to her child, Y’s, current school due to work commitments. We find fault in the Council not giving Mrs B the opportunity to appeal to a tribunal and in how it considered the nearest suitable school.

The complaint

1. The complainant, who I refer to as Mrs B, complains about the Council’s decision not to award school transport assistance. There are two schools named in Y’s Education Health and Care Plan (“EHC Plan”), one that Y attends (“School 1”) and another that the Council says is the nearest suitable school (“School 2”). Mrs B says the nearest school cannot meet Y’s needs. Her working arrangements mean she cannot take Y to School 2 and Y cannot safely access public transport alone. Mrs B questioned the make up of the panel that heard her appeal as she did not believe it was representative.

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What I have and have not investigated

2. I have not investigated the make up of the panel as we cannot investigate personnel issues. I have investigated how the Council reached its decision and whether it informed Mrs B of her appeal rights.

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The Ombudsman’s role and powers

3. 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)
4. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. 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.
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)

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How I considered this complaint

8. I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.

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What I found

Law, guidance and local policy

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory School 1ge 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
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.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
11. Where the parents’ preferred school is further away than the school the council considers the most suitable, the council is entitled to name the closer school if placing the child at the parental choice of school would be an unreasonable use of public expenditure. In making this decision the council must include the cost of transport to both schools in the comparison. The council could agree to name the parents’ preferred school on condition that the parent agrees to meet the transport costs. But in these cases, the council must name both schools in section I of the EHC Plan and specify the condition that the parents will pay for the transport. If the council considers both schools are suitable, then unless the cost of transport to the parents’ choice of school is significantly higher, then the EHC Plan must name the parents’ preferred school. These principles were established in the case of S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346 and are referred to as the ‘Dudley Test’. The test that should be applied is as follows:
• First it should be established whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the LA’s choice of school (i.e. a place is available). If the LA’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 and taken into account 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 LA’s choice of school (including transport) is so significant as to represent an inefficient use of resources, then the LA can name two schools, with the condition the parents provide transport to the their choice of school.
12. The Courts have found that the mere fact a parental / young person’s preference is more expensive is not an automatic barrier to the Dudley Test. The Council or Tribunal must balance the statutory weight given to the parent / preference against the extra cost when deciding whether it is an inefficient use of resources. The Council or Tribunal must then, as a second stage, balance the extra cost against any extra benefit it is claimed the more expensive placement will bring to the young person. (Essex CC v SENDIST [2006] EWHC 1105 (Admin))
13. 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 and to require the Council to fund transport.
14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
15. The Council’s Home to School Transport Policy says, ‘Where a parent is requesting that transport should be provided to a school that is not the nearest appropriate school, it is unlikely that their child will be eligible for free transport unless it can be demonstrated that any associated costs or additional costs would represent an efficient use of [the Council’s] resources or are negligible… In most circumstances greater distance travelled results in greater associated or additional costs and consequently it would not normally be considered an efficient use of public resources to provide free home to school transport where the child’s parents have decided that the child should not be attending the nearest appropriate school.’

Background

16. Y transferred from primary school to secondary school in September 2022.
17. In late 2021 the Council carried out a review of Y’s EHC plan. As part of the review, Mrs B set out that her preferred school was School 1. The Council said that School 2 was Y’s nearest suitable school, so Y would not be eligible for transport assistance to School 1. Mrs B said she did not agree that School 2 was suitable for Y. However, the Council maintained that it was.
18. The Council named both schools in Y’s new EHC plan. In Section I it said that School 2 was Y’s nearest suitable School 2ut that Y would attend School 1 on the basis that Mrs B agreed to be responsible for all transport arrangements. Mrs B says she did not agree to this and asked for the wording to be removed. However, the Council said it was standard wording and would need to remain but that Mrs B could apply for transport assistance if she wished. The final EHC plan was issued in February 2022.
19. Mrs B applied for transport assistance, but the Council refused as Y was not attending her nearest suitable school. Mrs B appealed the decision. In her appeal she said School 2 was not suitable for Y. She said the Council had not contacted School 2 during the EHC plan review so could not know that it could meet Y’s needs or provide the support outlined in the EHC plan. Mrs B said she could not get Y to school due to working shifts and Y could not safely access public transport.
20. An independent appeals panel considered the appeal in August 2022. The panel members, by majority, found the Council had applied its policy correctly in identifying that School 1 was not the nearest school. The outcome letter said School 1 was parental preference and the family’s personal circumstances were strong enough to warrant the use of discretion to make an exception.
21. Mrs B brought her complaint to us. In response to my enquiries, the Council said it does not believe it followed correct procedure as it did not offer Mrs B the opportunity to take her case before a tribunal disputing its decision. It therefore concedes the actions that followed were not in line with current and usual practice.
22. The Council says that, as Y is settled at School A, it proposes to reimburse Mrs B for costs incurred in transporting Y to school this year, arrange for transport going forward, and pay Mrs B £250 in recognition of the time and trouble spent bringing her complaints to the Council and us. The Council also says it will review its procedures to ensure this does not happen again.

Findings

23. I have not made findings about the way the appeal took place as the key issue here is the disagreement over whether School B was suitable for Y, and therefore the nearest school for transport purposes. Mrs B had a right of appeal to the tribunal against this, as it formed part of the contents of the EHC plan. In these circumstances, the tribunal could have considered transport costs.
24. The Council accepts it did not give Mrs B the opportunity to appeal to the tribunal. This was fault. Mrs B did not know the tribunal could have considered the transport costs. The Council informed Mrs B she could still apply for school transport through the normal procedure, so she did this instead, then made a school transport appeal. Therefore, I do not consider it was reasonable to expect Mrs B to have appealed to the tribunal and have exercised discretion to investigate how the Council considered the nearest school.
25. I find fault in how the Council considered whether School B was the nearest school, for two reasons.
26. The first is that Y had a EHC plan that set out her needs. During the review process, Mrs B challenged the Council on whether the School B could meet those needs or the requirements of the EHCP. The first step of the Dudley Test was for the Council to determine whether both schools are in fact suitable. If School B could not meet Y’s needs, then it was not suitable. The Council did not contact School B or take any steps to establish whether School B could meet Y’s needs, before naming it in the EHC plan as the nearest suitable school.
27. The second is that I cannot see evidence the Council considered the difference in transport costs, and whether it was an inefficient use of resources for Y to attend School A. These are the second and third steps of the Dudley Test. The Council only said School B was closer, so Y was not eligible for transport to School A.
28. There would not have been a transport cost to School B as it is within walking distance. The appeal panel noted that transport to School A would be £6 per day. It would have been for the Council to decide whether this was so significant as to represent an inefficient use of resources, but it should have done so considering all relevant factors. As outlined at Paragraph 12, the fact it was more expensive was not an automatic barrier.
29. I have considered the actions the Council suggested going forward and believe these suitably remedy the injustice caused. I thank for the Council for acknowledging there was fault and actively suggesting a suitable remedy.
30. In terms of service improvements, I recommend the Council review its policy and procedures to decide whether it needs to make any changes to these, or provide any further written guidance to staff, to ensure staff are aware of the Dudley Test and consider all three stages when making decisions about school transport in cases of this nature.

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Agreed action

31. The Council has agreed to, within a month of this decision:
• Contact Mrs B to establish the costs incurred for transporting Y to School A during this academic year, and reimburse Mrs B for those costs
• Arrange home to school transport assistance for Y to School B going forward
• Pay Mrs B £250 to acknowledge the time and trouble taken to raise her complaints
32. The Council has also agreed to, within three months of this decision:
• Review its policy and procedures to decide whether it needs to make any changes to these, or provide any further written guidance to staff, to ensure staff are aware of the Dudley Test and consider all three stages when making decisions about school transport in cases of this nature.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. The Council is at fault for not giving Mrs B the chance to appeal to a tribunal and in how it considered the nearest suitable school.

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Investigator's decision on behalf of the Ombudsman