The Ombudsman's final decision
Summary: Mrs X complained the Council failed to provide suitable transport to and from school for her child. We found fault with the Council failing to provide suitable transport. The Council agreed to our recommendations to provide an apology to Y and pay Mrs X £300, for Y’s benefit, for the missed education, stress and difficulty Y experienced.
The complaint
Mrs X complained the Council failed to provide suitable transport to and from school for her child, Y.
Mrs X says the Council placed Y, who attends a Special Educational Needs school, in the same transport as another child from a mainstream school with whom Y had a problematic history.
Mrs X says this situation caused Y distress and trauma from September 2021 to May 2022. Mrs X also says this resulted in a loss of education for Y as school staff needed to spend the first hour of each schoolday calming him.
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 have considered all the information Mrs X. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.
What I found
Home to school transport (disabled children) Councils have a duty to provide suitable free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B) Eligible children are children of compulsory school age who: cannot walk to school because of their special educational needs, disability or a mobility problem; or receive free school meals, or whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B) The Council must provide free transport to the nearest qualifying school for children who are eligible because of their special educational needs or disability.
For the transport to be suitable, the transport must enable an eligible child to reach school without such stress, strain or difficulty that they would be prevented from benefiting from the education provided. It must allow the child to travel in reasonable safety and in reasonable comfort. (Home to school travel and transport statutory guidance 2014, Part 1, Section 35) Council School Travel Policy The Council’s policy says it can consider requests for a child to have individual travel. The Council says it can consider requests as part of the EHC Plan review process or as required by the Passenger Transport Team to ensure a child’s needs are continuing to be met whilst using the most efficient and cost-effective transport arrangement.
What happened Y is Autistic with moderate to severe Attention deficit hyperactivity disorder . Y has an Education Health and Care Plan and the Council provided Y with transport to and from school in the academic year 2020 to 2021.
In September 2021, the Council arranged for two other children to share Y’s transport to school.
On 3 September 2021, Mrs X contacted the Council to advise Y had a history with one of the other children, Child 1, now sharing his transport and said this could cause problems. Y’s school also contacted the Council on this date to advise both Y and Child 1 would likely get excluded if they continued to travel together in the same transport.
The Council told Mrs X on 9 September 2021 it would remove Child 1 from the transport and Y would only travel with the remaining child. The Council said it could take a few days to rearrange. The Council told the school similar.
Y’s school contacted the Council again on 29 September 2021 to advise issues with transport are continuing and causing problems for the children. The Council said it would try again to find someone to transport Child 1.
Mrs X contacted the Council on 19 November 2021 to advise about the ongoing problems and said the Council had not provided suitable transport for Y.
Y’s school contacted the Council on 21 March 2022 to request removal of Child 1 from the route as the situation was becoming “seriously problematic”.
On 24 May 2022, Mrs X contacted the school to request individual transport for Y. Mrs X said Y was undergoing his GCSE examinations and sharing the transport was causing problems. Mrs X complained about the lack of action by the Council since 3 September 2021.
The Council arranged for individual transport for Y from 27 May 2022 and confirmed this with Mrs X.
The Council provided Mrs X with a response to her complaint on 31 May 2022. It said Y’s EHC Plan did not specify that he needed individual transport. The Council said it was unaware of the history between Y and Child 1 until 3 September 2021 and tried to arrange separate transport for child 1 but could not get this. The Council said the first request it received for individual transport for Y was on 24 May 2022 and it arranged this by 27 May 2022 which it considered swiftly resolved the problem.
Analysis There is no dispute between the Council and Mrs X that Y was entitled to transport from his home to, and from, his school setting. The Council has provided transport for Y as agreed. I do not find fault with the Council for the general provision of transport for Y.
Mrs X’s dispute is the transport provided by the Council was not suitable for Y.
The Council has stated Mrs X did not request individual transport for Y until 24 May 2022. The Council is correct in this statement. Within three days of Mrs X’s contact the Council provided individual transport for Y and this quickly addressed Mrs X concern raised on 24 May 2022. I do not find fault for how the Council responded to Mrs X’s request on 24 May 2022 for individual transport.
While Mrs X only requested independent transport for Y on 24 May 2022, Mrs X had been in contact with the Council since September 2021.
Mrs X’s contact in September 2021 was to express concerns about Y sharing transport with Child 1. Y’s school supported this concern, who also contacted the Council.
The Council has a responsibility to ensure any transport arrangements are suitable for the child. The statutory guidance says the transport should be stress, strain, or difficulty free to enable the child to arrive at school ready for a day of study.
Since 3 September 2021 both Mrs X and the school had made the Council aware of the difficulty the transport arrangements would have on Y. The school also made the Council aware that this would present potential difficulties for Child 1 as well through the prospect of exclusion.
Either Mrs X or the school reiterated these concerns a further three times before 24 May 2022 with increasing urgency and emphasis on the strain this was placing on the children in the transport.
While the Council tried to arrange for separate transport for Child 1 on two occasions, it took no action in response to the contacts in November 2021 and March 2022; this was fault.
The Council was aware of the stress, strain and difficulty the transport arrangements placed on the children, including Y. This prevented Y from fully benefiting from his education. And, since the school’s contact in March 2022, it is questionable about whether Y, or the second other child in the transport, were travelling in reasonable safety.
While the Council has provided transport for Y this has not been “suitable” in line with the statutory guidance from 3 September 2022 until 27 May 2022. This was fault.
Agreed action
Within one month of the Ombudsman’s final decision the Council should: Provide an apology to Y for the failure to provide suitable transport for nine months causing him stress, difficulty and impacting on his education.
Provide a payment of £300 to Mrs X to be used for Y to address the stress, difficulty and impact on his education caused him the transport situation.
Final decision
There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.
Investigator's decision on behalf of the Ombudsman