The Ombudsman's final decision
Summary: The Council was at fault for overlooking Miss X’s stage 2 appeal request for school transport for her son. This did not cause Miss X or her son a significant injustice as the appeal upheld the Council’s decision. The Council was also at fault for poor record keeping during the appeal process. This did not cause Miss X an injustice. The Council has amended its procedures for future appeal hearings.
The complaint
Miss X complained about how the Council reached its decision not to provide free school transport for her son (Y). She said the Council did not consider Y’s SEN and based its decision purely on distance from the school. She said the lack of school transport means Y is often late to school and that it is also affecting her daughter’s education.
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 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) 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 Miss X’s complaint and spoke to her about it.
I also considered the Council’s response to Miss X and to my enquiries.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legislation and policy Home to School Travel Assistance Policy 2020/21 The document sets out the Council’s policy in relation to the provision of free school transport and travel assistance for children and young people. It explains how parents can apply for assistance, how decisions are made and how parents can appeal. The document explains that parents are responsible for ensuring their child attends school. The policy sets out the eligibility criteria for transport assistance. These include the walking distance between home and school, and specifically for children with SEN; the need of the child, the complexity of the journey, the use of public transport, the promotion of independent travel, the promotion of a healthy approach to walk to school, and the most cost effective travel assistance arrangements.
What happened Miss X’s son, Y has SEN and an Education Health Care Plan (EHC Plan). In March 2021, Miss X submitted a school travel application to the Council. The Council assessed Miss X’s application against the Council’s Travel Assistance Policy. The Council refused Miss X’s request on the grounds that her application did not meet the statutory walking distance criteria for children of Y’s age.
Miss X appealed on the grounds of Y’s SEN believing he fitted the eligibility criteria for school transport. Miss X explained that due to his SEN, Y could not safely walk to school. The Council did not to uphold Miss X’s appeal. The Council sent the stage 1 appeal outcome letter to Miss X in July 2021. The letter set out Miss X’s appeal rights with a deadline of 15 August 2021.
Miss X emailed the Council her stage 2 request on 27 August 2021. The Council did not pick this request up until 20 October 2021 when Miss X emailed the Council for an update. Despite the appeal request being passed the deadline, the Council agreed to consider it at stage 2 given the delay in acting on Miss X’s request.
The stage 2 appeal hearing was held in November 2021. The panel considered a range of documents including the evidence supplied by Miss X when reaching its decision. The Council confirmed that no minutes are available as the officer who took them has since left the Council. The Council said that it has changed its process of recording hearings to prevent this happening in the future.
In the absence of minutes, I have seen an email from the chair of the panel who confirmed the panel agreed to uphold the decision not to award travel assistance for Y. He said as Miss X did not provide all the evidence, the panel felt the perceived extenuating circumstance of Miss X’s health and Y’s sister’s school attendance could not be considered at the time.
My findings
Council’s consideration of evidence From the evidence I have seen, the Council considered all the relevant information provided by Miss X in support of her application and appeal. It referred to specific paragraphs and details from Y’s EHC Plan, risk assessment, behaviour profile and other supporting documents. I cannot question a Council’s decision if it has been made correctly. There was no fault in the way the Council reached its decision to refuse school transport for Y.
Overlooked stage 2 appeal request The Council has acknowledged that it did not pick up Miss X’s request for a stage 2 appeal of her application. The Council said it was overlooked because the travel assistance team was preparing for the start of the new academic year. This was fault.
Miss X’s appeal request was submitted after the deadline. Even if the Council had picked it up immediately, the appeal would not have been heard before the start of the academic year. Once the Council noticed its mistake, it heard Miss X’s appeal at the earliest opportunity. The panel’s decision to uphold the original refusal for school transport meant there was no injustice caused by the Council’s failure to pick up Miss X’s appeal in August.
Poor record keeping The Council has acknowledged the way it used to record hearings by relying on officer taking minutes was not good practice. This was apparent in Miss X’s case as the attending officer left the Council without leaving a record of the minutes.
The Council apologised for this and is updating its processes and procedures regarding travel assistance appeals to include hearings. The Council said it will record all future hearings via an online meetings app.
The Council’s demonstration of poor record keeping was fault. This did not cause Miss X an injustice. However, poor record keeping has the potential to cause problems if it is not rectified. I am satisfied the Council has taken steps to prevent this happening in the future.
Final decision
I have completed my investigation. The Council was at fault for overlooking Miss X’s appeal request. This did not cause Miss X a significant injustice as the appeal panel upheld the original decision to refuse transport assistance so the outcome would have been the same.
Investigator's decision on behalf of the Ombudsman