Summary: There was fault by the Council in failing to train new staff in how to assess eligibility for school transport where a child has an EHC plan. This was fault and is likely to have caused injustice by wrongly denying free home to school transport to some families. The Council will carry out a review to identify any affected families and to provide a remedy where an incorrect decision has been made.

The complaint

1. The Council failed to apply the correct legal test when naming two schools on an Education, Health and Care (EHC) plan with the parental choice named on the basis parents are responsible for transport costs.

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The Ombudsman’s role and powers

2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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. 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)

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How I considered this complaint

6. While investigating a complaint from a parent who was refused free home to school transport, matters came to our attention about the way the Council was assessing transport applications for children with EHC plans. We could not pursue that investigation as the complainant had appealed to the SEND Tribunal. We considered the concerns raised by this parent could be affecting people who had not made a complaint and so decided to investigate.
7. I made enquiries of the Council and considered the comments it provided.
8. I considered documents provided by the parent who took her case to the SEND Tribunal. This included information the Council had sent that parent to justify not providing free home to school transport.
9. I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014 and associated Regulations and Code of Practice
• Department for Education ‘Home to School transport guidance’, July 2014 (‘The Guidance’)
10. 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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What I found

Relevant law

11. 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 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.
12. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.
13. When a first or amended draft EHC plan is issued the child’s parents, or the young person, have the right to express a preference that the Council name a particular school. (Children and Families Act 2014, s.38(2))
14. 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.
15. Where the parent and the Council prefer different placements under s.38 Children and Families Act, but attendance at the parent preference would lead to additional transport costs, the Court of Appeal has set out a test (‘the Dudley test) that councils should apply when deciding whether they are obliged to pay for transport to a parent's choice of school:
• 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 (that is whether 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.
• If both schools are suitable, the cost of providing transport to both should be established 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 Council's choice of school (including transport) is so significant as to represent an inefficient use of resources, can the council name two schools, with the condition the parents provide transport to their choice of school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)
16. 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 as the named school on the EHC plan.

Key events

17. The complainant who approached the Ombudsman asked the Council to name a particular school on the EHC plan for their child in 2022. The Council agreed to do so but only as parental preference, as it said there was another nearer school that could meet need. It named both schools on the EHC plan, with the condition the parent was responsible for transport costs as they had not chosen the nearest suitable school.
18. The parent disagreed both schools could meet need and asked the Council for evidence it had applied the Dudley test by providing the cost information showing their choice, with transport, was more expensive than the Council’s choice.
19. The Council failed to provide the cost information. The parent then appealed to the SEND Tribunal, but before the appeal was heard the Council agreed to amend the EHC plan to name only the parent’s choice of school and to provide free home to school transport.
20. The parent told us they were aware of two other cases where the Council had failed to apply the Dudley test until the parents had complained.
21. Correspondence sent by the Council to parents stated they must choose the nearest school to be eligible for free home to school transport and made no reference to the different test, where a child has an EHC plan, of comparing the costs of both placements.
22. While the parent who came to us had their own situation resolved, they escalated their complaint to stage two because they were concerned other parents may be similarly affected. The parent pointed out the placement panel did not have cost information available to them when deciding which school(s) to name on the EHC plan.
23. In response to my enquiries the Council told me it was aware of the Dudley test but a number of new staff had joined the Special Educational Needs (SEN) team and the Council acknowledges there needs to be training…for its officers in relation to the law and statutory guidance around school transport.
24. The Council indicated all costs, including school transport, are provided to placement panels but this information is not shared with parents unless requested.
25. The Council advised that in response to us alerting it to the problem it has undertaken the following service improvements:
• Robust training is being implemented for all relevant officers and this includes an update to our Standard Operating procedures explicitly references the Dudley decision.
• Recent guidance has been issued to all officers regarding the need for travel costs where placement is being sought in specialist provision.
• The Home To School Travel Team are now also aware that travel costs must be provided when requested by SEND officers.
26. In relation to other families potentially affected the Council told us these are being dealt with on a case by case basis and remedies offered.
27. The Council was unable to tell us how many EHC plans it held where two schools were named on the condition the parent pay for transport.

Analysis

28. The Council has failed to apply the Dudley test when assessing transport eligibility reliably and consistently for children with EHC plans. This is fault.
29. It is likely families have suffered injustice by being required to take on responsibility for transport costs when they have chosen a school which is not the nearest school, but where the total cost (including transport) of attending their preference school would not be considered an inefficient use of resources compared to the cost of attending the nearer school.
30. While the Council says the training issue relates only to new staff, the correspondence with the parent who brought their complaint to us indicates that complaint staff up to stage two also failed to understand the issue being raised. This suggests the lack of training may be more widespread.
31. The Ombudsman welcomes the service improvements set out above by the Council to remedy this issue for all affected families. However, the Ombudsman notes the Council has not yet identified how many families are potentially affected and has not set a timescale for reviewing other cases and providing remedies.

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Agreed action

32. Within two months of my final decision the Council will provide the Ombudsman with evidence it has provided training and updated guidance to all relevant staff (SEN and transport teams).
33. Within two months of my final decision the Council will review that its information for parents whose children have EHC plans also references the Dudley test and they are signposted to accurate information about transport at the time they need to express a preference for a particular school.
34. Within nine months of my final decision the Council will provide us:
• with evidence it has completed its review of other families who may be potentially affected
• with details of the outcome of its review including how many cases were identified as wrongly decided and confirmation remedies have been provided in all cases.
35. The Council will provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault by the Council in failing to correctly assess eligibility for school transport where a child has an EHC plan. This was fault and is likely to have caused injustice by wrongly denying free home to school transport in some cases. I am satisfied the review and service improvements initiated by the Council and the recommended actions set out above will resolve any outstanding injustice.

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Investigator's decision on behalf of the Ombudsman