The Ombudsman's final decision
Summary: We do not uphold Mr X’s complaint that the Council failed to provide his child (Y) with home to school transport. The decision was made in line with national and local policy.
The complaint
Mr X complained the Council refused to provide home to school transport for his child (Y). He also complained the Council did not explain the basis upon which it later decided to refund transport costs.
Mr X said he had to arrange transport which affected his work and caused him and his family stress, inconvenience and time and trouble pursuing his complaint.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I considered Mr X’s complaint information. I also considered information from the Council. Mr X and the Council had an opportunity to comment on my draft decision. I have considered their comments before reaching a final decision.
What I found
Education, Health and Care Plans A school is suitable for transport purposes if the child’s Education, Health and Care plan (EHC plan) names the school without conditions, or it is the nearest of two or more schools named. The council must provide suitable school transport to that school if it decides the child is eligible according to its school transport policy. (Schedule 35B of the Education Act 1996) Councils may agree to name the parents’ preferred school even though it considers another closer school also meets the child’s needs. In these cases, if it decides transport to the parents’ preferred school costs too much it must either change the EHC plan to: Name the further school as parental preference, but state in the EHC plan that there is a closer suitable school and so the parent will be responsible for school transport or, Name the closer school only.
Changing the child’s EHC plan in this way gives the parents the opportunity to appeal to the SEND Tribunal to have their preference named as the only suitable school. [S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346] Council’s transport policy Section 3.8 of the Council’s Home to School Transport Policy states: Having an EHC plan does not automatically mean that a child will be eligible for travel assistance.
The Council will consider factors such as nearest suitable school, mobility, medical needs, vulnerability, and practicality when determining eligibility, but this list is not exhaustive.
In determining the most appropriate type of travel assistance for pupils with SEND it will consider the pupils aged, SEND severity, length and nature of journey and the most cost-effective mode of transport.
Section 3.7 (e) of the above policy states: The Council may provide transport in exceptional circumstances at its discretion. This assistance is decided on case-by-case basis, for a set period, subject to review and may cover the whole cost of transport or a contribution.
What happened Y is blind and has an EHC plan. He started secondary school in September 2021.
The Council named Mr X’s preferred school (A) on Y’s EHC plan. But it also named another school (B), as being the nearest appropriate school. The EHC plan said Y would attend school A as this was his parent’s preference. But this was on the shared understanding that they would be responsible for transport to and from the school.
Mr X’s complaint and the Council’s responses Mr X later complained to the Council. He said he felt pressured to accept the transport costs. He said the Council was legally responsible. He said this was because other children attending school A from his local area had transport.
Mr X told us the Council later reimbursed Y’s transport costs and has since provided transport. However, Mr X was unhappy he had to take time out from work to collect Y to and from school. He said this affected his business and caused him and his family stress.
Mr X escalated his complaint to stage two. He said he did not accept the Council’s version of events about the transport agreement. He said it failed to keep accurate records and had acted for financial gain.
Mr X said School B was unsuitable for Y due to his disability and the Council knew he would not accept it. He believed School A provided better resources and development outcomes. Mr X said he felt he had to accept the transport agreement to ensure Y’s transition to secondary school was not interrupted by a further appeal to the SEND tribunal.
In its stage two response the Council explained: It had named two schools in Y’s EHC plan, and it was entitled to consider expenditure of public funds as part of its assessment.
The EHC co-ordinator had emailed Mr X’s wife to ensure the decision was recorded properly. It was later included in Y’s final amended EHC plan.
It was unaware that Mr X felt upset about the transport costs until January 2022. Since his complaint it had decided to provide transport and reimbursed him for any costs incurred since September 2021. It did not provide reasons for the decision.
It had not treated Y unfairly in refusing transport. It could not comment on why other children had transport. Each case was decided on its own merits against criteria in relevant legislation and the SEND code Unhappy with the Council’s response, Mr X brought his complaint to us.
Analysis There was no fault in the Council’s decision not to fund Y’s transport. The evidence shows, it agreed the arrangement with Mr X in line with Schedule 35B of the Education Act 1996 and the decision in the Dudley case (see paragraphs seven and eight). The EHC coordinator then confirmed this by email to Mr X’s wife and asked she treat the email as a confirmation until the EHC plan was finalised. The arrangement was later recorded in Y’s final amended EHC plan.
Mr X said he accepted the transport situation because he did not want to delay Y’s school transition with the SEND tribunal process. But this was an option available to him if he disagreed with the Council’s position that School B was the most appropriate school.
The Council has already reimbursed Mr X’s costs and provided Y with transport. The Council has not provided reasons but used its discretionary powers as set out in its transport policy (see paragraphs 10 and 11) in making the payment for costs to Mr X. I do not find fault on the basis it has reviewed its decision to provide Mr X a more favourable outcome than legally required. We have no reason to criticise the Council which is entitled to act more generously than the law requires it to.
There are no grounds for me to recommend a remedy for Mr X’s time and trouble transporting Y because there was no fault in the Council’s original decision not to provide transport.
Final decision
I find no fault in the Councils decision to not provide transport for Y. However, the Council has since used its discretion by changing its decision and reimbursed Mr X so there is no injustice to him in any event.
Investigator's decision on behalf of the Ombudsman