Summary: Mrs X complained the Council wrongly refused her application for school transport to the school named in her son’s Education, Health and Care Plan. The Council failed to correctly consider the application. The Council will take action to prevent the fault reoccurring, apologise to Mrs X and make payment to recognise the frustration caused and transport costs.

The complaint

1. Mrs X complained the Council wrongly refused her application for school transport to the school named in her son, C’s, Education Health and Care Plan (EHCP).
2. She says this caused her issues with caring for her other children and transporting them to school. She says it caused her considerable stress.

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What I have and have not investigated

3. I have investigated Mrs X’s complaint about the Council’s decision making concerning her school transport application since November 2021. I have not investigated earlier applications as Mrs X could have complained about them sooner. This is a late complaint and there is not a good enough reason to investigate the earlier issues now.

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The Ombudsman’s role and powers

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. 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)
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.

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 have considered:
• The information provided by Mrs X and discussed the complaint with her;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
9. Mrs X and the organisation 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

Law and guidance

10. 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)

11. A child with special educational needs may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. If a school is named in Section I of an EHCP, it does not automatically mean that transport will be provided. The child still has to come into one of the categories of eligible pupil above. Provided that any relevant conditions are met, and the child is attending the “nearest suitable school”, they will qualify for free transport.
12. However, where the parents’ preferred school is further away than the school the Council considers the most suitable, it 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.
13. The council could agree to name the parents’ preferred school on the 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 EHCP and specify the condition that the parents will pay for the transport. The parents’ preferred school named in Section I would then be regarded as “parental preference”.
14. If only one school is named in a young person’s EHCP, 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.

Council’s school transport policy

15. The Council policy states that if at any point a parent cannot meet the transport costs (of a preferred school) it will review the placement.

What happened

16. C suffers from autism, attention deficit hyperactivity disorder and other learning difficulties.
17. In 2018 the Council issued an EHCP for C. In section I it listed a mainstream primary school (school A) for C. Mrs X appealed the decision as she wanted C to attend a specialist school (school B). This school was able to educate both primary and secondary aged children. An agreement was reached between Mrs X and the Council prior to the appeal hearing that it would name school B in the EHCP on the condition that ‘the parents agree to provide all transport to and from school’. When the Council issued C with a new EHCP in April 2019, it listed school B only.
18. In late October 2020 Mrs X applied to the Council for school transport for C. The Council rejected the application on the basis C was not at his nearest suitable school. Mrs X raised an appeal and the decision not to provide transport was upheld.
19. Mrs X made a new application for transport in mid-December 2021. She noted the family’s change in circumstances including the need to take other siblings to school meant they could not provide transport for C. She said C would be unable to make the journey to school on public transport unaccompanied. Further she stated there was no alternative suitable placement for C.
20. The Council issued a decision in late December 2021. The Council stated that C was not attending his nearest suitable school and that Mrs X had agreed to provide transport to the parental choice.
21. Mrs X’s legal representatives raised concerns about the Council’s rejection in early January 2022. They raised concerns the Council had not considered the circumstances set out in the application that the family cannot continue to provide transport, the passage of time and that there were no suitable alternative schools. They also requested the Council consider the maintenance of the EHCP at the earliest opportunity.
22. The Council responded to this appeal in late February 2022. It acknowledged it had a discretionary power to provide transport for non-eligible children. It stated that parental working arrangements and taking other children to school would not be considered a sufficient justification under its discretionary power.
23. After this decision, the Council offered to pay Mrs X £43.75 per day for the transport costs from 19 April until the end of term. It made three payments to her in May, June and July amounting to £2,586.07. In July the Council agreed to arrange transport from September 2022.
24. The Council issued a new EHCP for C following this agreement. Mrs X appealed the decision to leave section I unchanged. Prior to the hearing the Council agreed to remove the transport clause from the EHCP.

Findings

25. The Council only listed school B in section I of C’s EHCP. Although the ECHP recorded this as parental preference and there was an agreement to provide transport, it did not name school A in the plan. Nor did it name a suitable secondary school when he moved into year 7. This is not in line with paragraph 13 above.
26. If only one school is named in the plan, the Council has not made arrangements for C to attend a nearer suitable school. This means the school named is the only suitable school for transport purposes. This should have been considered when determining C’s entitlement to school transport. The Council failed to apply the tests of nearest suitable school when determining Mrs X’s application. This is fault.
27. Had the Council considered the test correctly it would have been aware that only one school was named which meant he was attending his nearest suitable school. The Council would therefore have been required to arrange transport when Mrs X made her application in December 2021. As a result of the Council’s failure Mrs X had to continue to provide transport up until the end of the school year. I recognise the Council provided Mrs X with £43.75 per day from April onwards, which minimises some of the impact on her. However, without Council arranged transport she still had the stress and frustration of providing the transport herself during that time and the costs of transport between December 2021 and April 2022.
28. I also note the Council did not follow its policy when Mrs X told the Council she could no longer provide transport. As stated in paragraph 15 the Council should have reviewed the placement. The Council has not provided me with any evidence it discussed this policy with Mrs X or carried out a review following this. This is fault. When the Council carried out its review later in 2022 it concluded that C was attending the appropriate school for his age, ability and needs.
29. This fault has not caused Mrs X any additional injustice to that identified above.

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Agreed action

30. The Council, within one month of the final decision, will:
• Apologise to Mrs X and pay her £300 to recognise the injustice caused by the faults identified above.
• Pay Mrs X £2,275 to recognise the cost of daily transport between January and April 2022.
• Provide training to staff on the requirements of parental funded transport outlined in S and another v Dudley Metropolitan Borough Council [2012]. This should include guidance on assessing transport requests and the process for agreeing parental funded transport.
• Remind staff of its policy to review EHCP placements when a parent raises concerns that they can no longer provide transport to a school of parental preference.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. I have found fault leading to injustice. I have recommended action to prevent reoccurrence and address the injustice caused.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman