The Investigation

The complaint

1. Mr X complained the Council:

• wrongly refused to provide school transport for B when the school named in his EHC Plan is the only school offered by the Council and is more than three miles from his home; and

• failed to properly consider his appeal.

2. Mr X says the Council's failures have caused his family significant stress as various family members have had to rearrange their day/alter their working patterns to undertake school runs.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. Under our information sharing agreement, we will share this report with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Relevant law and guidance

5. Section 508B of the Education Act 1996 says 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.

6. 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.

7. A child or young person with special educational needs may have an EHC Plan. This document sets out the child’s needs and what arrangements should be made to meet them. 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.)

8. This approach is echoed in the statutory Government guidance (the guidance): 'Travel to school for children of compulsory school age'. In summary, this says the following:

• 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:

  • name a different school that would be appropriate; or

  • name the parent's preferred school on the condition the parent arranges the travel or provides some or all of the cost; or 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.

9. 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".

10. The guidance says where the parent's circumstances subsequently change and they are no longer able to arrange or pay for the transport, the authority may review the EHC Plan to reconsider whether naming the parent's preferred school is incompatible with the efficient use of resources. If they decide providing travel to the parent's preferred school would be incompatible with the efficient use of resources, they may amend the EHC Plan to name a different school that would be appropriate for the child's needs.

The Council’s policy

11. The Council's home to school/college and adult learner transport policy (the policy) says pupils of compulsory school age with special educational needs or disabilities will qualify for free travel assistance if they attend their nearest suitable school and cannot reasonably be expected to walk to school due to mobility problems or associated health and safety issues relating to the special educational needs or disability.

12. The policy says for a pupil with an EHC Plan if the parent's preferred school is further away from home and the nearest school can meet the child's special educational needs the Council can name the nearer school. It says if the parents prefer the school or college that is further away the Council may agree to that but may ask the parents to provide some or all of the transport funding.

13. For the appeals process the Council's policy says there are two stages. At the first stage the decision will be reviewed by a senior officer. At the second stage the appeal will be heard by an independent appeals panel and the parent can attend the panel and make verbal representations.

How we considered this complaint

14. We produced this report after examining relevant documents, discussing the complaint with Mr X and making targeted enquiries of the Council.

15. We gave Mr X and the Council a confidential draft of this report and invited their comments. We considered the comments before making our final decision.

What we found

What happened

16. B has special educational needs and has an EHC Plan. His parents, Mr X and Ms Y are separated. The Council wrote to Mr X and Ms Y in October 2022 about the impending phase transfer to a new school. The Council asked Mr X and Ms Y if they had a school they wanted for B. Mr X told the Council the name of the school he and Ms Y wanted for B. The Council also consulted another school, which is closer to B's home. That school did not respond to the consultation.

17. In January 2023 the Council told Mr X and Ms Y the transport panel had agreed to name the parent's preferred school on the basis the parents would be responsible for transport. Ms Y confirmed by email that was acceptable. The Council issued an amended EHC Plan which named the parents preferred school in Section I. Section I did not refer to school transport arrangements and did not name a second school.

18. Mr X applied for travel assistance for B in August 2023. The Council refused the application. The Council said it had only agreed to name the parent's preferred school on the understanding the parents would be responsible for transport.

19. Mr X and Ms Y appealed to the Council’s internal school transport appeal panel. The Council turned that appeal down at the first stage as it said it had only agreed to name the parent's preferred school in Section I on the understanding the parents had accepted responsibility for transport.

20. Mr X put in a further appeal. His main points of appeal were:

• the Council had not identified any other school or provision during the EHC Plan process;

• the Council had failed to consider the family wanted B to attend a religious school and the school he now attends is the only suitable school on that basis;

• he did not consider the alternative closer school suitable for B's needs; and

• his other child attends the same school and therefore there would be minimal cost implications.

21. A panel of officers considered the stage two appeal. Following the panel hearing the Council wrote to Mr X to tell him the panel had upheld the decision to refuse school transport. The Council explained it had considered the additional information Mr X provided. The Council said while the panel acknowledged the issues raised in the appeal it unanimously decided to refuse travel assistance. The letter explained this was because when the Council agreed the parental preference of school it did so on the understanding travel assistance would not be provided.

Conclusions

22. We set out in paragraphs 7 to 10 what case law and the guidance says about the tests the Council should apply when deciding whether to fund or provide transport to a parent's choice of school. That is clear the Council should establish whether both schools are suitable and have places available. It should then go on to consider the relative costs of the two schools before deciding whether it would be an efficient use of resources to name the school requested by the parents.

23. We are not satisfied the Council applied those tests properly in this case. Those tests are required irrespective of whether a parent has indicated a willingness to transport the child to school. Although we are satisfied the Council consulted a school which is nearer to B's address there is no evidence that school responded either to say whether it considered it was a suitable placement for B or to say it had places available. Nor is there any evidence of the Council carrying out a calculation to establish whether it would be an efficient use of resources to name the school chosen by the parents in Section I of the EHC Plan. We are therefore not satisfied the Council followed the correct procedure. That is fault.

24. We also note Section I of B's EHC Plan names only one school. This is the school he currently attends and is the one Mr X seeks funded transport for. The EHC Plan does not refer to any implications for transport assistance. If the Council considered a school closer to B's address was equally or more suitable than the one he now attends, it should have named this in the EHC Plan. The Council did not. As the Council did not name another school in Section I we can say the Council therefore decided the school attended by B is his nearest suitable school. It is open to the Council to amend the EHC Plan if it wants to name two schools in Section I, which would give Mr X appeal rights. However, as it stands the EHC Plan is a legally binding document which says B is attending the nearest suitable school. On that basis we are satisfied he qualifies for school transport.

25. We are also concerned about how the appeal panel approached this case. The appeal panel did not keep any notes from its hearing. Instead, the only document available to show what the panel considered is the letter to Mr X telling him the outcome of the appeal. Failure to keep minutes of the appeal hearing is fault.

26. We are also concerned, based on the letter following the appeal, there is no evidence the panel properly considered whether there was a suitable school with places available which was nearer to B's home. Nor is there any evidence the panel took into account the various arguments Mr X put forward in support of his appeal. Instead, the panel relied solely on the evidence the Council had told Mr X it would only name his chosen school in Section I on the basis the parents funded transport. Failure to properly consider the appeal and, particularly, the tests set out in case law, is fault.

27. The Council says it gave Mr X and Ms Y the opportunity to attend the appeal panel hearing, in accordance with Government guidance. However, there is no evidence the Council gave the parents the opportunity to attend the appeal hearing. We therefore cannot be satisfied that option was made available. That is also fault.

Injustice

28. We are satisfied due to the Council’s failures B has missed out on the Council providing school transport from the point at which Mr X first requested transport assistance in August 2023. We are also satisfied the Council’s failures have meant family members have had to reorganise their days or alter their working patterns to transport B to school when they should not have had to do so.

29. As remedy for the complaint we recommend the Council puts school transport in place for B. We make that recommendation because we are satisfied the transport panel’s decision is flawed and on balance no reasonable panel could reach a decision other than to pay for transport on the basis of how the current EHC Plan is worded. The Council should also pay Ms Y an amount to reflect the reasonable costs she and other family members incurred taking B to and from school (four journeys a day) from August 2023 until the time B accesses school transport arranged by the Council. That payment should be based on the mileage allowance the Council normally pays (or HMRC rates if the Council does not have its own policy) and should cover four journeys a day during term time. The Council should also pay Mr X £100 to reflect his time and trouble in bringing the complaint.

30. We further recommend the Council send a reminder to panel members considering transport appeals about the need to ensure notes are kept from the appeal hearing and the need to ensure a record is kept to show parents/carers have been invited to the appeal hearing. The Council should also arrange staff training on how applications for school transport should be dealt with and review its policy to ensure it provides clear information about the tests to apply.

Recommendations

31. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

32. In addition to the requirements set out above, within one month of the date of this report the Council has agreed to:

• apologise to Mr X and Ms Y for the distress and uncertainty they experienced due to the faults identified in this decision. The Council may want to refer to our updated guidance on remedies, which sets out the standards we expect apologies to meet;

• put in place school transport for B;

• make a payment to Ms Y to reflect the costs she and other family members incurred transporting her son to school from August 2023 until the time B accesses school transport arranged by the Council. That payment should be based on the mileage allowance the Council normally pays (or HMRC rates if the Council does not have its own policy) and should cover four journeys a day during term time;

• pay Mr X £100 to reflect the time and trouble he had to go 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; and

  • how school transport should be considered when the school chosen by the parents is further away than the school the Council considers suitable. The training should be based on the statutory guidance;

• review its policy to ensure it provides clear information about:

  • the tests it must apply when deciding whether to pay for transport/provide travel assistance; and

  • what action the Council will take where it decides the school of parental choice is incompatible with the efficient use of resources, having regard to Government guidance in 'Travel to school for children of compulsory school age'.

Decision

33. We have completed our investigation. There was fault by the Council causing an injustice to Mr X and Ms Y. The Council has agreed to take the action identified in paragraph 32 to remedy that injustice and prevent recurrence of the fault.

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