The Ombudsman's final decision
Summary: Miss X complains about how the Council dealt with her appeal for home to school transport for her son. There was fault by the Council as the appeal panel did not consider the Council’s discretion. We also find fault in the Council’s policies on home to school transport. The Council has agreed to review the appeal panel’s decision and its policies.
The complaint
Miss X complains that the Council is at fault in refusing her application and appeal for school transport for her son who has special educational needs. She says it did not take proper account of her family circumstances. As a result, she says she has had to give up her job in order to transport her son to and from school.
The Ombudsman’s role and powers
We investigate complaints about 'maladministration' and 'service failure'. In this statement, I have used the word fault to refer to these. We cannot question whether an organisation's decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended) 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) 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 discussed the complaint with Miss X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Home to School transport Councils 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 to 16); children living within walking distance of the school but who cannot 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 to walk to school because the route is unsafe; children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit, for transport to one of their three nearest qualifying schools. For secondary school children they must live more than two miles but not more than six miles from that school (Education Act 1996, section 508B(1) and Schedule 35B) Councils also have discretion under the Education Act 1996 to offer transport where they consider it necessary to help ensure the child attends school.
The Council’s ‘Travel and Transport Assistance Policy’ sets out the legal qualifying conditions for home to school transport. It says the Council “provides free transport or assistance with transport costs to the nearest appropriate and/or suitable school if one of the eligibility criteria is met”.
It notes “where a parent expresses a preference for their child to attend a school which is not the nearest suitable school which is more than 3 miles from the parental home, assistance with transport is not the responsibility of the Authority.”
The policy has a section on ‘individual circumstances’. This explains that the Council will consider offering help with transport in certain specified circumstances. These include where children have short-term medical or temporary mobility problems which mean they need help to get to school.
The Council also has a ‘SEND Travel Assistance Policy’ explaining the transport assistance it provides for children with special educational needs and disabilities. It says it was written with the intention of ‘removing ambiguity’, ‘clarifying eligibility’ and reassuring parents about the services they are entitled to.
The policy says it covers children with an Education, Health and Care (EHC) Plan, medical needs or disabilities.
Under the section on ‘eligibility’ it says the Council will provide travel assistance “in accordance with its statutory duties where children have significant SEN, a disability or mobility restrictions such that travel assistance is essential to access their specialist provision”.
Home to School transport appeals process Statutory Guidance ‘Home to School travel and transport’ recommends a two-stage appeal process as follows: Stage 1: review by a senior officer Stage 2: review by an independent appeal panel.
The Guidance says the panel should consider “written and verbal representations from both the parent and officers involved in the case”.
The Council has a two-stage appeals process for parents who disagree with a transport decision.
Stage 1: review by the School Admissions & Transport Manager who will respond within 20 working days.
Stage 2: Review by an appeal panel. Parents have 20 working days to submit an appeal. The appeal panel will consider the appeal within 40 working days of receiving the request and issue a decision with reasons within five working days.
The policy says the appeal panel “will take into account the written and verbal representations from both the parent/carer and officers involved in the case”.
What happened Miss X has a child, C, who has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). At the time of the events in this complaint Miss X was waiting for an autism assessment for C and has since received a diagnosis. She asked the Council for an Education, Health and Care needs assessment and was in dispute with the Council about its refusal to issue an EHC Plan.
Miss X successfully applied for a secondary school place for C at School 1 from September 2021. She says she chose this school because it is a mainstream school with an autism base. While C was still in Year 6 at his primary school he attended transition sessions at School 1.
In late April 2021 applied to the Council for free school transport to School 1. On the application form she explained the effects of C’s ADHD, saying C was impulsive, had little awareness of danger, and had mobility problems. She said he could not travel by public transport, with or without an adult, because of the stress due to his sensory needs. She explained that currently she was taking C to school by car, and another relative was collecting him to bring him home.
The Council sent Miss X its decision on the application in late July 2021. It said C did not qualify for transport as he was not attending his nearest suitable school.
Miss X asked for a review of the decision. I do not have a copy of a written request. The Council believes she must have asked for a review over the telephone. The response refers to an appeal on 16 August, so it appears that was the date of Miss X’s request.
The Council provided its Stage 1 appeal decision letter on 3 September 2021. It referred to its SEND Travel Policy and the circumstances in which the Council will provide help with transport to a specialist placement. It said C did not currently have an EHC Plan. It pointed to the definition of nearest suitable school in its Home to School Travel and Transport Policy. It said although Miss X felt School 1 was a school that could meet C’s SEN needs, there were other mainstream schools closer to her home which could also meet his needs. It said it had checked with its admissions section and found that C would have had a realistic chance obtaining a place at a nearer school if Miss X had applied there.
The Council upheld its original decision and advised Miss X about the next step in the appeal process.
Miss X appealed on the same day. She gave her reasons as follows.
She said it did not say anywhere in the Council’s policy that the child has to be attending a specialist school.
She explained why she chose School 1 rather than a nearer school and why she considered it was the best school to meet C’s needs. She referred to it having an autism base, that it was a smaller school, and C had had several visits and transition meetings there. She said she was waiting for a tribunal hearing for an EHC Plan.
She then referred to the difficulties C would have in walking to school or travelling by public transport.
She asked the Council to take account of the “exceptional circumstances surrounding [C’s] additional needs”.
She now had to leave her job as she could not get transport in time for C to start secondary school.
She enclosed several professional reports relating to C’s SEND.
In her covering email Miss X said because of the time taken to make a decision on transport, C had had more than ten transition meetings at School 1 since he obtained a place there. She said at no point did anyone inform her C would not qualify for transport if she chose School 1. She said if she were to send him to a different school now he would miss out on education while transition took place.
The appeal panel considered the appeal in early November 2021 and issued its decision on 8 November. It confirmed it had considered the Council’s policies and the statutory guidance and the evidence Miss X had provided. It upheld the Council’s original decision refusing transport for the same reasons as previously. It said for the reasons given C did not meet the qualifying criteria for home to school transport. The letter signposted Miss X to the Ombudsman if she did not agree with the decision.
After receiving the decision Miss X contacted the Council by telephone to say she had further evidence she wanted it to consider. The Council agreed to ask the appeal panel to review its decision. A second panel met later in November and issued its decision the following day. The panel confirmed it had considered the further evidence but did not change its decision for all the reasons given previously. It signposted Miss X to the Ombudsman again.
Analysis – was there fault causing injustice?
Based on the evidence I have seen I consider there is fault in the way the Council considered Miss X’s appeal.
At each stage of the decision-making process the Council explained the reasons for its decision with reference to the qualifying conditions for free home to school transport, its policies and the statutory guidance. It was not at fault in taking the view that C did not qualify as an ‘eligible child’. These conditions apply only where the Council is satisfied the child is attending the nearest suitable school (or one of the three nearest if the low-income condition applies). The Council’s Travel and Transport Assistance Policy and its website makes this requirement clear.
However I have seen no evidence that the Council considered whether in the particular circumstances of the case it would be appropriate to use its discretion to award transport outside of its policy. Miss X explained her circumstances in detail including why she had chosen School 1 and how, during the time she was waiting for a decision on her application, C had got to know the School and staff there through his introductory visits. In my view the failure to address the points Miss X made and consider the possibility of a discretionary award was fault.
The Council’s Travel and Transport Assistance Policy refers to certain specific circumstances where it may offer help with transport outside the legal qualifying conditions. But there is no reference in the policy to its general discretion or the ability to consider exceptional circumstances. I consider this is fault.
I also consider there is fault in the Council’s appeal arrangements. The policy follows the statutory guidance in having a two-stage appeal process with an appeal panel at the second stage. It also says the appeal panel will consider ‘verbal representations’, which is in line with the guidance. The Ombudsman’s understanding is this means oral representations, in other words an opportunity for the parent to present their case in person, whether virtually or face-to-face. The Ombudsman’s view is that councils should provide this opportunity at the appeal stage unless they can show good reason for departing from the guidance (see Report on complaint reference 19 008 896 ).
In this case Miss X says no-one contacted her to ask if she wanted to put her points in person. The Council says when she called after receiving the appeal panel’s decision to ask the panel to consider extra evidence, she made verbal representations at that point. The Council says it does not routinely invite parents to transport appeal panels. It says this is because the panels may be reviewing multiple cases, and COVID-19 restrictions have also limited face-to-face contact.
There is nothing in the Council’s policy or its decision letters explaining how parents can make verbal representations. In my view if this is right is to be meaningful the Council should explain how parents can exercise it. I consider the lack of information about how the policy operates is fault. I make a recommendation about this in the next section.
I do not know what the outcome of the appeal would have been if the appeal panel had considered its discretionary powers or if Ms X had been able to participate in the hearing. But the uncertainty about what might have happened is an injustice to her.
Also, I find that the SEND Travel Assistance Policy is not clear, and reference to it in the appeal decision letters may have led to confusion for Miss X. The Council says the aim of the policy is to provide clarity. However it does not explain how it links to the main home to school transport policy and the qualifying conditions for free transport. If it covers only pupils attending specialist provision, it should say so clearly. The reference to the policy in the appeal decision letters did not seem to be relevant to Miss X’s case.
Miss X has complained about delay in making a decision on her application. The Council’s policy does not say how long it should take to decide an application. In response to our enquiries the Council said it usually considers applications ‘around June/July time’ and it considered Miss X’s application along with all other applications for pupils moving into Year 7. So I cannot say the Council failed to follow its procedures in this case. I have dealt with the question of the time it took to make a decision in relation to Miss X’s arguments in support of her appeal.
The Council issued the first stage appeal decision within the timeframe in its policy and the second stage decision around a week late. So there was no significant fault here.
Agreed action
To remedy the injustice to Miss X the Council has agreed to arrange another appeal panel to review the decision and consider whether to use its discretion to award transport outside the usual policy. It should do so within one month of the final decision on this complaint and give Miss X an opportunity to make representations in person (which could be by video-link). It should send her a decision letter explaining its reasons.
Within three months the Council will review and amend its home to school transport policies in the following ways.
Travel and Transport Assistance Policy. If the policy is to allow parents to attend appeal panels whether virtually or face-to-face, the Council should explain in the policy how they can do so. If in fact the policy is not to allow parents this opportunity, then in line with the Ombudsman’s Report referred to above, the Council should explain to the Ombudsman why it is departing from government guidance. If it cannot provide good reason, it should amend the policy to allow opportunities for oral representations.
The Council should also include a reference to its discretion to award transport outside the main terms of the policy.
SEND Travel Assistance Policy. I recommend that the Council consider how it can amend the wording in the policy to clarify exactly who it covers and how it links with the statutory qualifying conditions. It may wish to cross-reference or provide a link to the main home to school transport policy.
Final decision
I have found fault in the way the Council dealt with Miss X’s appeal for home to school transport. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman