DfE delay in issuing a direction
28. Mrs G appealed to her LA about its decision not to award provision of LA organised post-16 transport for her daughter to get to her school. The guidance in relation to this is outlined in Transport to Education and Training for people aged 16 and over (the Transport Guidance). This says that once a person has exhausted the local complaints process with the LA, they can make an appeal to DfE.
29. Mrs G complains that it took DfE four months to pick up the appeal, and once it did, it took too long to make its decision. She considers if the delay of four months did not happen, it would have made its decision four months sooner. In which case, travel arrangements could have been in place sooner for the remaining term.
30. We asked DfE to provide us with a timeline of events to show us what steps it took to progress Mrs G’s appeal. We also asked it to explain any periods when little happened. We note here, that within the transport guidance document, there is no set time limit on how long DfE should take to consider an appeal. DfE does not have specific guidance but has sent us its established process for dealing with post 16 transport. DfE told us it does not have specific guidance because cases can vary in their complexity.
31. When DfE receive an appeal, it should allocate the appeal to the access and participation team who would then check whether the appeal is ready for DfE or whether the appeal needed to have been through the LA process first.
32. Mrs G submitted her appeal in August 2023. DfE did not acknowledge the appeal until December 2023, a gap of nearly four months.
33. DfE explained that, at triage, when Mrs G submitted her appeal, staff had assigned her appeal to the wrong division and sent it to a work queue that was not regularly monitored. It explained the delay was also down to staff resource issues within the department. It said it would pick up the technical issues with the correspondence department and will work with technicians to work on consolidating various work queues to minimise the chance of work being missed again.
34. Our Principles of Good Administration state public bodies should deal with people promptly. We consider DfE’s delay in considering Mrs G’s appeal is not in line with these as it took nearly four months to start its consideration. We find this to be a failing.
35. When we identify that something went wrong, we consider if this had an impact on the complainant and whether the organisation has acted to put it right. Mrs G said she had to endure the stress and upset caused by having to take H and her siblings to school when they were all at different schools, and this caused H to be late for school each day.
36. We consider that had the appeal been picked up earlier it is more likely than not, that DfE could have made its decision much sooner, probably in March or April 2024. Crucially, probably before the general election in May 2024 (we come on to this later). We think the four-month delay added to what was already a lengthy process.
37. As it was, DfE did not issue its direction until August 2024. This means Mrs G likely endured upset and distress longer than she possibly needed to.
38. We must also consider DfE’s reasons why the delay in not picking up the appeal happened, and any action it has taken to address the delay, and whether we think that action goes far enough.
39. DfE apologised sincerely to Mrs G for its service to her as this fell well below the standard expected of DfE.
40. Although we are pleased to see DfE has acknowledged its poor service and has taken some action to try to minimise the chances of this happening again, we do not think that goes far enough to put things right for Mrs G. We explain in our recommendations section what we want DfE to do to put this right.
DfE’s consideration of the appeal
41. DfE explained to us that to issue a direction, the SoS must be satisfied that an LA has acted unreasonably. The threshold for the power to make directions, established by case law, is that the LA has acted in a way which no sensible authority acting with due appreciation of its responsibilities would have acted. It said this is a high threshold. DfE explained to us as far as it was aware, no SoS direction has ever been issued for post-16 transport appeals.
42. DfE told us the LA’s policy stated, ‘Only in exceptional circumstances…will the council consider making the direct provision of taxi or minibus transport.’ DfE’s consideration focused on the reasonableness of the LA’s approach to deciding which cases are ‘exceptional circumstances’ and specifically how this was applied in H’s case.
43. We asked DfE whether it had any guidance or policy that it should follow when it receives an appeal about post 16 transport. It says there is no guidance but an established process it follows. The process is generally that DfE should gather information from both the LA and the person appealing. They may also have to consult with its policy team and its legal team. In complex cases, it may involve going back and forth between departments.
44. Once DfE reach a decision, it is finalised at deputy director level with a draft response which outlines its rationale and where appropriate, sent for ministerial approval.
45. DfE told us the legal opinion of DfE lawyers was that the case was finely balanced between one where the LA had clearly acted unreasonably and one where it has acted in a way which is within the realms of reasonable.
46. It said it needed to decide whether to exercise the power to give a direction. Either decision would carry an element of legal risk of a successful legal challenge. This required detailed legal work by several staff to reach a recommended decision.
47. Department officials carried out a review of all the evidence provided by Mrs G and the LA. The review focused on the following areas in how the LA approached the case:
• whether it failed to consider statutory guidance • whether it gave sufficient reasons for concluding that the case was not exceptional • whether it fettered discretion by using the examples in the transport policy as fixed criteria rather than illustrative examples • whether it properly applied the policy - by failing to consider the SEND needs of the three siblings when considering whether exceptional circumstances were met • whether it failed to properly consider a) the SEND needs of the other children, b) the Education, Health and Care plan (EHCP) specification that H is afraid to travel independently on public transport.
48. Officials contacted the LA and Mrs G in early December 2023 and received information back from both in January 2024. Officials wrote again to the LA on 22 February and 13 March asking how it decided that the exceptional circumstances were not met. Following this, officials met with the LA on 20 March to discuss the case and particularly the LA’s stage two appeal.
49. The LA accepted that some documentation for the stage two appeal could be improved. DfE officials highlighted that the examples of exceptional circumstances in the paperwork must be clearly labelled as examples and were not to be applied as firm criteria. The LA did not accept that was how they had been applied in H’s case, but it did accept that the paperwork could be improved.
50. In coming to us, Mrs G would like a full explanation of why it took DfE so long to make its decision. As such, we set out here DfE’s explanation.
Period between April to 4 July 2024
51. DfE lawyers carried out further investigations following the 20 March meeting. This included consulting with policy colleagues including those responsible for special educational needs and disabilities and EHCPs.
52. During this period, lawyers and officials gathered and tested options underpinned by supporting evidence and an assessment of the legal risk for each.
53. Lawyers were clear that the case remained finely balanced as to whether the threshold of unreasonableness required for the SoS to issue a direction had been clearly met. Lawyers said that advice was drafted setting out all the evidence and the range of options for the SoS to decide from. This included not issuing a direction to the council.
54. DfE said SoS advice was being collated when the UK General Election was announced on 22 May. During the pre-election period there are limitations on what SoS functions can be conducted and officials had no SoS for Education to approve or issue a direction.
55. From 22 May, officials and lawyers were exploring options for reaching a decision on whether to issue a direction without the SoS under the Carltona principle, which allows civil servants to act on behalf of government ministers, treating their actions as if theywere taken by the ministers themselves. However, identifying and then agreeing this alternative approach with senior leaders took time.
56. DfE considered it would be unreasonable to make Mrs G wait until a new SoS could be appointed and provide a decision (the prioritisation of advice to a new SoS meant this could mean waiting until September for a decision). However, as the senior DfE director would be making the decision ‘on behalf’ of the SoS, DfE had to wait for the new SoS to be sworn in before the decision could be made.
Period from 4 July to 8 August 2024
57. Having drawn together the considerations, DfE tell us one final line of enquiry had to be completed in July before lawyers were satisfied that DfE could reach a determination. DfE emailed the LA for further information on the ages and current school years of each of H’s siblings, whether each were entitled to transport assistance, and whether transport assistance has been offered to the siblings.
58. DfE considered this was necessary because part of the case for saying that the offer of financial support was not sufficient was the need to take two of the other children to school. DfE asked the LA whether H’s siblings would be likely to be entitled to travel assistance under the council’s school age transport assistance policy.
59. Once DfE had this information, in late July, advice was updated and supported a director-level decision on behalf of the SoS. DfE sent letters to the LA and to Mrs G on 8 August 2024.
60. Our view is that the DfE has accounted for the time it took to consider Mrs G’s appeal. We appreciate her frustration and her view that DfE made its decision in April/May 2024. We can see that, due to the complexity of the case, its involvement with lawyers, and the fact that this was new ground for DfE as it had not issued a direction like this before, meant that it took time to complete. We can see DfE did not make its decision until July 2024.
61. We think that DfE took as long as was needed to consider the appeal once it picked it up. Its actions are in line with our Principles that say that in their decision making, public bodies should have regard to the relevant legislation. Decision making should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately. So, there is not a failing in this part of the complaint.
DfE’s lack of updates
62. Mrs G says she requested updates from DfE three times in writing 2 April 2024, 24 April and 2 May. She says DfE did not respond to her emails.
63. DfE has explained to Mrs G that her emails were not picked up due to system failures and communication failures.
64. We consider DfE’s failure to respond to her communications was not in line with our Principles as these say organisations should give people information and, if appropriate, advice that is clear, accurate, complete, relevant and timely. We find this to be a failing.
65. In response to her complaint, DfE apologised and accepted that its service to Mrs G was below the standard she should expect. It said in the future it will provide intermittent updates and will give people a named contact and email address. It said it will provide an estimate to people on key timelines within the appeal process.
66. The complaint standards say wherever possible, when an organisation has identified something has gone wrong, it should explain why and identify suitable ways to put things right for service users. It should give meaningful and sincere apologies and explanations that openly reflect the impact on the service users concerned.
67. We appreciate and can understand why Mrs G became frustrated at repeatedly having to chase DfE up about her requests for updates on the appeal. We found DfE’s apology and the action it has taken goes far enough to put right what went wrong to put right the frustration Mrs G experienced.
DfE’s complaint handling
68. Mrs G complains that DfE did not consider her complaint appropriately because it did not consider it through its formal complaint process or allow her the opportunity to escalate her complaint.
69. Mrs G made a complaint to DfE in May 2024. She complained about the initial delay in picking up her appeal and for not responding to her requests for updates.
70. DfE sent an email to her in June to confirm receipt of her email and the email said: ‘I am very sorry that we have not been able to provide you with a substantive response more swiftly, and I am also sorry that you have not received replies to your subsequent requests for a progress update. Our correspondence with you clearly falls below the standards that you should expect from the Department so please accept my sincere apologies.’ It said they would come back to her within two weeks.
71. Mrs G thought that email was a tier one response to her complaint, which is why she complained further as she was not happy with that response and wanted it escalated to tier two in late June. A few days later, mistakenly, DfE responded and told her she needed to go to the LA. Mrs G complained again.
72. DfE wrote to her in early July, to say that it would issue the decision shortly. It is not clear why DfE did not respond to her complaint about its delay, until Mrs G involved her MP. DfE responded in September 2024 at stage one of its complaint process.
73. Mrs G remained unhappy with DfE’s response, so she complained again to the manager who had completed the stage one response. Unfortunately, DfE explained that the manager drafted a response in an email, but due to technical reasons, the email was not sent out to Mrs G. In January 2025, DfE sent Mrs G a copy of the email that was drafted in September 2024. The email said that DfE would not escalate to tier two of the complaint process because it upheld her complaints and a further review would not yield a different outcome.
74. The UK Central Government Complaint Standards set out that organisations should give a thorough, proportionate and balanced look into the issues raised in a complaint. It gives service users fair and open answers to their questions based on the facts and takes full accountability for mistakes identified.
75. Organisations like DfE should make it clear how people can make a complaint. They should make it easy for everybody to understand how the process works. This includes being clear about who can make a complaint and what will happen next.
76. DfE’s service complaint process is:
• at formal stage one, the complaint will be sent to the manager of the individual or team complained about • they will investigate and then prepare a response with an outcome identified. This response is returned to the ESFA complaints team who send it on to the complainant and close the complaint • should the complainant be dissatisfied with the response they receive they can request their complaint be escalated to formal stage two of the ESFA process • at formal stage two, the complaint is commissioned to a manager of at least the same grade as the individual who considered the matter at formal stage one, who has had no previous involvement with the case • they will review the case to date and consult with those previously involved, before indicating their outcome. Again, this response is returned to the ESFA complaints team who then send it on to the complainant and close the complaint.
The outcomes available at both stages are: • Not upheld • Upheld • Partially upheld.
77. The complaint standards set out that if there are multiple services involved, they should work together to resolve the complaint.
78. We know that Mrs G’s complaint was not handled by DfE’s complaint team. We asked DfE why that was. DfE told us officials followed advice from the Ministerial and Public Communications Division (MPCD) to use the MPCD service complaint process and provide a combined response.
79. DfE told us this approach was recommended because there were issues both with the triage and initial handling of the case by MPCD, and its subsequent handling by officials responsible for post-16 transport policy. There was not a clear way to separate the issues Mrs G was complaining about between these teams, so it needed a combined response.
80. Sometimes, not involving the complaint team can be a reasonable approach to take. Unfortunately, in this case, it complicated matters because Mrs G was not advised she could escalate her complaint. We consider it might have been better if DfE investigated Mrs G’s complaint in line with its own complaint policy, which would have had the involvement of the complaints team, and the complaint would have been better managed.
81. Mrs G says that due to the complaint not going through the formal complaints team, she has been denied the opportunity to escalate her complaint and have a senior review.
82. We can see that Mrs G emailed the manager back in September 2024 to say she was not happy with the response and felt that it did not address all the issues she raised. DfE did not respond to this email. It told us that the manager wrote an email to respond, but a technical error meant the email was not sent.
83. In January 2025, DfE sent the response that was drafted but not sent. In this, DfE said that it would not escalate the complaint to tier two because it had already upheld the complaint, so nothing more could be achieved by having a senior review.
84. We consider that had the complaint gone through the formal complaint process and been dealt with by the complaint team, it is possible Mrs G may not feel the way she does.
85. The complaint standards set out that an organisation should make sure they tell people about their right to escalate a complaint to the next stage if they are not satisfied with the response at the end of the organisation’s complaint process. This includes escalating to any independent second tier complaint handler or to us via their MP.
86. We found that even though the manager dealing with Mrs G’s complaint upheld it and set out what action would be taken to improve its service, it did not act in line with the complaint standards above, which is a failing.
87. Furthermore, when Mrs G came to us in November 2024, it took until January 2025 to ascertain that Mrs G had a complaint with DfE as the complaint team had no record of her due to the manager not going through the formal process.
88. We can see why Mrs G became so frustrated with DfE’s complaint handling and her feeling that she has not had an opportunity to escalate her complaint, even though DfE upheld it. DfE did not escalate her complaint because it said having a senior review would not change the result. This means DfE has not taken any action to put things right. We set out in the next section what recommendation we make to DfE to put things right for Mrs G.