Summary: Mrs X complained, on behalf of her granddaughter, Child A, the Council refused to provide home-to-school transport because there was a nearer suitable school. The Council was at fault for not applying the correct legal test known as the Dudley test. This left uncertainty about the decision reached. The Council has agreed to reconsider the transport application in line with the Dudley test and provide a fresh decision and right of appeal. The Council will also review its home-to-school travel policy and retrain staff to prevent reoccurrence of the fault.

The complaint

1. Mrs X complained, on behalf of her granddaughter, Child A, the Council has refused to provide home-to-school transport on the grounds that there was a nearer suitable school. Mrs X says the refusal risks Child A missing education.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. 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)
4. 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.
5. 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)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

7. I wrote to Mrs X about her complaint and considered the information she provided.
8. I considered the Council's comments about the complaint and the supporting documents it provided.
9. I considered the Council's policies and relevant law and guidance and the Ombudsman's guidance on remedies.
10. Mrs X and the Council had the opportunity to comment on the draft decision. We considered their comments before making a final decision.

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What I found

Relevant law and guidance

Education, Health and Care (EHC) Plan

11. The purpose of an EHC Plan is to make special educational provision for children with special educational needs and disabilities. Councils are responsible for deciding whether an EHC Plan is needed and for preparing the EHC Plan. The EHC Plan should set out the specific support that is to be provided. It will usually name either a specific school, or a type of school that can meet the child’s needs.
12. Parents have a right of appeal to the SEND Tribunal if they disagree with the special educational provision or the school named in their child’s EHC Plan. The right of appeal is only engaged when the final amended plan is issued.

Home to school transport

13. A Council must make such travel arrangements as it considers necessary to facilitate an 'eligible child' to attend their relevant educational establishment. The Council must provide this free of charge. (The Education Act 1996, section 508B).
14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.

Case law – S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346

15. The Court of Appeal set out the test that councils should apply when deciding whether they are obliged to pay for transport to a parent’s choice of school.
16. 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 (i.e. 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.
17. 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.
18. 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, then the council can name two schools, with the condition the parents provide transport to their choice of school.
19. 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.
20. The Courts have found that the mere fact a parental / young person’s preference is more expensive is not an automatic barrier to the efficient use of resources 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))

The Council’s home-to-school transport policy 2020

21. The Council’s home-to-school transport policy (2020) was the policy in force at the time of the Council’s decision on this case. The Council have since updated the policy for 2022-2023.
22. Paragraph 3.5 notes that an entitlement to home to school transport exists where the following criteria is satisfied:
• a child with an EHC Plan attends their nearest suitable school and qualifies for home to school transport under the statutory walking distances (section 3.2) outlined previously within this policy.
23. Where a child’s SEN or mobility difficulties mean he or she cannot reasonably be expected to walk to school even when accompanied by a parent, transport can be provided even if the distance criteria is not met.
24. For those children with an EHC Plan, the nearest suitable school will be the school that can meet the child’s needs and not the school that best meets the child’s needs. Where a parent/carer exercises parental preference in choosing a school further away than the nearest suitable school, the Council can name that school but state that this is not the nearest suitable school. Under this circumstance, the child is not eligible for transport and the parent takes on all financial and practical responsibility of getting their child to and from school.

SEND Tribunal

25. The SEND Tribunal can consider school transport matters where:
• a parent disagrees that the school named in Section I of a Final EHC Plan by the Council is suitable; or
• a parent considers it is suitable but believes their preference does not represent unreasonable public expenditure.
26. 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.
27. We cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal.
28. In this case, although there were appeal rights it was not reasonable for Ms Y to use them. This was because the Council had only named School 1 in Section I of Child A’s Final amended EHC Plan, which was her preferred school and she could not appeal to the SEND Tribunal if transport was the only issue.

What happened

29. Mrs X, who is grandmother to Child, A, is representing Ms Y, Child A’s mother, in bringing this complaint to us. Child A has an EHC Plan.
30. In late April 2021, the Council carried out Child A’s EHC Plan annual review. The review stated: ‘Ms Y is going to look at School 2 and School 1 and make a choice from there. Ms Y does not want to look at another school due to its location. Transport will be needed wherever Child A attends for secondary’. There is no evidence the Council considered the associated transport costs in the annual review.
31. In early October 2021, the Council issued Child A’s draft amended EHC Plan. The accompanying email explained to Ms Y she must consider how Child A would travel to school. The Council told Ms Y if it agreed to place Child A in a school that was not the nearest appropriate school that could meet Child A’s needs, Child A may not be eligible for travel assistance.
32. On the same day Ms Y emailed the Council and said her preference was for Child A to attend School 1.
33. The Council issued Child A’s Final amended EHC Plan in mid-February 2022. Section I of Child A’s Final amended EHC Plan named a state funded special school, School 1, from September 2022. In addition, Section I said: ‘The Council confirms the closest suitable school is School 2. The parents have expressed a preference for School 1. Child A can attend School 1 on the condition the parents pay the cost of transport’.
34. After the Final amended EHC Plan was issued, Ms Y applied for school transport for Child A. In early May 2022 the Council refused the application because Child A would attend her parent’s preferred school in September 2022 and it considered there was a nearer suitable school, School 2 that Child A could attend.
35. In mid-May 2022, Ms Y appealed the Council’s decision not to provide home-to- school transport for Child A. Ms Y wanted Child A’s case to be considered as an exception to policy due to extenuating circumstances, including:
• School 1 could meet Child A’s needs;
• Child A’s peers from the same area had home-to-school transport to School 1; and
• if no transport was provided Child A would miss education because her parents could not transport her to school.
36. The Council considered Ms Y’s appeal at stage one in mid-July 2022. The Council declined to provide travel assistance. This was because Child A was not attending their nearest suitable school and there were no extenuating circumstances demonstrated to warrant exceptional travel assistance. The Council confirmed it considered School 2 was Child A’s nearest suitable school.
37. In late September 2022, the Council’s independent review panel considered Ms Y’s appeal. It considered information from a key worker which said Child A could not safely travel to school on her own and Ms Y worked and had to transport another child to a different school. The panel considered Child A’s needs and well-being. It understood Child A liked School 1 but said it was her parents’ responsibility to transport Child A to and from school and the threshold of extenuating circumstances had not been met. The panel declined to offer travel assistance for Child A. The panel decided the Council had correctly applied its transport policy as School 1 was not Child A’s nearest suitable school.
38. In January 2023 Mrs X sent us information showing:
• Child A’s attendance records and a letter from School 1 showing Child A’s attendance was low. Mrs X said this was because Child A did not receive home -to-school transport; and
• milage and petrol costs, including 40 miles per day, costing £65 in petrol costs per week.

My findings

39. Case law (as explained in paragraphs 15-20) has established the tests councils should apply when deciding whether they should pay for transport to a parent’s choice of school.
40. The Council has considered the Dudley test, as follows:
• it has shown it applied the first test correctly. The Council established that both School 1 and School 2 were suitable for Child A and there was a place available for Child A at both schools;
• there is no evidence showing the Council considered or properly recorded the second test at any time either during the Annual Review, Final amended EHC Plan or stage 1 or stage 2 of the appeal process. The Council has not outlined the cost of providing transport to both schools or considered whether Ms Y’s preferred school was incompatible with the efficient use of resources. This was fault; and
• it did not properly apply the third test. The Council did not show if the total cost of transport to School 1 compared to School 2 was so significant that it represented an inefficient use of resources. This was fault.
41. The Council did not consider parts 2 and 3 of the Dudley test and there is no evidence it carried out a comparison of costs. We cannot say what decision the Council would have made, in respect of home-to-school transport for Child A, if it had properly considered these tests.
42. Only if the cost of transport to the preferred school is so significant that it represents an inefficient use of resources can the Council name both schools, with the condition that the parents pay the transport costs. I have recommended the Council considers the transport costs for both schools so it can make an informed decision on Child A’s school transport and if Section I of Child A’s Final amended EHC Plan should remain the same or just name School 1 with no condition. If the EHC plan names only School 1, this is considered to be the nearest suitable school, for the purposes of home to school transport.
43. The Ombudsman has already made recommendations to this Council on a similar case where the Council had not properly considered transport costs or whether the cost of the preferred school was incompatible with the efficient use of resources (21 011 993). This complaint indicates the Council has not taken on board all the learning suggested by us previously which is disappointing. The Council has agreed to carry out additional training for staff.

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Agreed action

44. Within one month of the final decision the Council will reconsider the transport application, taking into account the Dudley test, providing a new decision and fresh appeal rights.
45. If, following the consideration of transport costs, the Council finds the preferred school, School 1, is not incompatible with the efficient use of resources, the Council will:
• reissue Child A’s EHC Plan as soon as possible, naming School 1 and remove the transport cost condition;
• within one month of the decision provide home-to-school transport for Child A to School 1; and
• within one month of the decision apologise to Ms Y and refund her milage costs from September 2022.
46. Within three months of the final decision the Council will:
• review its home-to-school travel policy to ensure it provides clear information about the tests it must apply when deciding whether to pay for transport/provide travel assistance; and
• provide staff training, to ensure all relevant staff which include those carrying out school transport decisions/appeals as well as the SEND team are aware of the three stage Dudley test process. The Council will share this decision as part of the training, for example, using it as a case study example.
47. Following other recent Ombudsman investigations, the Council has already over-turned all historical applications and appeals where the Council did not name the school it deemed to be the nearest appropriate school in the Final EHC Plan. The children in these cases have all been assessed as eligible and the Council is now providing travel assistance, so no further recommendations were needed in relation to other children who may be affected by the same fault.

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Final decision

48. I have completed my investigation finding fault with the Council for not properly applying the Dudley test causing personal injustice. The Council has agreed to take action to remedy the injustice and prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman