Summary: Ms M complained the Council refused her request for school transport for her son, B. There does not appear to be any basis in legislation or guidance for the Council’s insistence Ms M should accompany B on public transport to school. A number of faults, taken together, call the Council’s decision into question. The Council has agreed to consider Ms M’s application again.

The complaint

1. Ms M complained about the Council’s decision not to provide school transport for her son, B.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision..(Local Government Act 1974, section 34(3), as amended)
3. 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 injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Once 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

5. I have considered information provided by Ms M and information provided by the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M’s son, B, started secondary school in September 2023. B attends a special school. The school is named in his Education, Health and Care (EHC) Plan. The school is more than three miles from his home.
7. Ms M asked the Council to provide transport. The Council refused.
8. The Council wrote to Ms M on 12 April 2023 to explain its decision. The Council said:
• B’s special educational needs do not meet the criteria for assistance in the Council’s school transport policy;
• a parent is available to accompany B on the journey.
• free transport is available by public bus from Transport for London which the Council considers suitable. The journey takes 48 minutes.
9. On 19 April 2023, Ms M asked for a review of the Council’s decision (the first stage of the Council’s appeals process).
10. She explained that:
• she does not drive;
• B has autism, is anxious and displays challenging behaviour when travelling;
• he is unaware of danger and runs into traffic;
• he has sensory issues with noise and crowded transport;
• as a result, the walk to the bus stop could take 30 minutes instead of 10 and B would not arrive at school in any condition to learn;
• B’s father works and so is unable to take B to school by car.
11. The SEN Travel Assessment Team reviewed their decision.
12. They wrote to Ms M on 2 June 2023 to confirm the Council would not provide transport. The letter said the Council had reviewed the evidence and determined the special educational needs of the student do not meet the criteria and the parents are able to assist.
13. The letter did not refer to any of the difficulties B faced using public transport which Ms M described in her appeal.
14. The letter referred to a boy with a different name, not B.
15. On 13 June, Ms M submitted an appeal (the second stage of the Council’s appeals process).
16. In her appeal, Ms M:
• restated her case, explaining that she does not drive, B has autism and displays challenging behaviour, and B’s father is unable to help due to work;
• provided more information about how B’s sensory issues pose problems when travelling on public transport;
• provided a letter of support from B’s primary school; and
• referred to the Council’s duty to provide transport for eligible children.
17. The Council wrote on 14 August to say it had considered Ms M’s appeal and confirmed it would not provide transport. The letter said the Council had taken into consideration all the difficulties that may occur during the journey, but decided one parent was available to accompany B on the journey.
18. Unhappy with the Council’s decision, Ms M complained to the Ombudsman.

Home to school transport

19. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
20. Various categories of eligible children are defined in Schedule 35B of the Education Act 1996.
21. Ms M applied for transport because B’s school is more than three miles from home. The relevant eligibility criteria are set out in paragraph 6 of Schedule 35B. This says,

“Children outside walking distance where no suitable alternative arrangements made

6. A child falls within this paragraph if—

(a) he is of compulsory school age and is a registered pupil at a qualifying school which is not within walking distance of his home,

(b) no suitable arrangements have been made by the [local authority] for boarding accommodation for him at or near the school, and

(c) no suitable arrangements have been made by the [local authority] for enabling him to become a registered pupil at a qualifying school nearer to his home.”

22. The walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. (Education Act 1996, section 444(5))
23. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety.
24. For children with an Education, Health and Care (EHC) Plan, a qualifying school is the school named in section I of their Plan, unless the Plan says otherwise.
25. The Government has issued statutory guidance which councils must follow unless they have good reason. (Travel to school for children of compulsory school age. Statutory guidance for local authorities issued by the Department for Education in June 2023)
26. Paragraph 64 of the guidance says a council is not required to arrange travel for an eligible child where suitable free travel is provided by someone else, for example, their school or the local transport authority (for example, Transport for London).
27. Further, the Council does not have to make travel arrangements for an eligible child if a parent makes their own arrangements voluntarily. (Education Act 1996, section 508B(5))

Consideration

28. B is an eligible pupil because he lives more than three miles from the nearest suitable school. (Education Act 1996, Schedule 35B, paragraph 6 applies.)
29. However, the Council is not under a duty to make travel arrangements for B if it considers arrangements made by Transport for London are suitable. (Education Act 1996, section 508B(2(b))).
30. The Council said it decided not to provide transport assistance for B because Transport for London offers free bus travel for school pupils, the journey takes 48 minutes, and Ms M is available to accompany B to school.
31. Ms M’s appeals concerned the suitability of public transport provided by Transport for London, and her ability to accompany B.

Ms M’s stage 1 appeal

32. Ms M’s stage 1 appeal describes the difficulties B would experience using public transport, including difficulties getting to the bus stop, his challenging behaviour and his sensory issues on crowded transport.
33. The Council’s decision letter does not address any of the points Ms M made.
34. This is fault.
35. The decision letter refers to the needs of another child, not B.
36. This is fault.
37. The decision letter refers to the Council’s policy and says the special educational needs of the student do not meet the criteria and parents are able to assist.
38. The letter does not say which criteria are not met by B’s special educational needs. The Council’s policy refers to many different criteria, including distance criteria and income criteria.
39. This is fault.
40. The Council decided Ms M was available to accompany B on the journey to school using public transport.
41. The Government set out rules about accompaniment in the statutory guidance.
42. The guidance says that if a council determines a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them.
43. It says where a council determines that a child could not reasonably be expected to walk even if they were accompanied, they are eligible for free home to school travel regardless of whether their parent would be able to accompany them or make other arrangements for their journey.
44. B is not expected to walk to school because he lives beyond the statutory walking distance.
45. There do not, therefore, appear to be any grounds in the legislation or guidance for the Council to decide a parent must accompany a child on any journey other than a walking journey to school. If a child lives beyond the walking distance, he is entitled to transport.
46. The Council is only relieved of its duty to provide transport assistance if suitable transport is arranged by somebody else. This can include arrangements made by a parent, but only if they are made voluntarily. Ms M is not willing to accompany B on public transport because she does not consider public transport suitable. It appears the Council is wrong to conclude Ms M should accompany B on the journey to school.
47. The Council’s policy says a parent will receive a decision on a stage 1 appeal within four weeks. Ms M waited over 6 weeks. This delay is fault.

Ms M’s stage 2 appeal

48. Ms M re-stated her case and provided information about B’s sensory issues in her stage 2 appeal.
49. The Council said it considered the difficulties B experiences using public transport. The Council said the bus journey was only 35 minutes and Ms M was available to accompany B on the journey. The Council suggested the family should practice the journey before the start of term.
50. The Council continued to rely on its decision Ms M should accompany B on the bus to school to make the transport provided by Transport for London suitable. There do not appear to be any grounds in the legislation or statutory guidance for the Council to reach this decision. This is fault.
51. These faults, taken together, call the Council’s decision into question.
52. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.

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Agreed action

53. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
54. I cannot say whether B is entitled to free home to school transport. Only the Council can decide. I recommended the Council re-considers Ms M’s transport application and provides her with a clear and comprehensive written decision. The Council should address the faults I have identified in its previous decisions. I recommended the Council does this within one week of my final decision. If the Council decides B is not eligible for transport, it should offer Ms M a stage two appeal within two weeks of its decision. The Council should invite Ms M to attend the appeal hearing and provide a clear and comprehensive written decision within one week of the hearing.
55. If the Council decides B is eligible for home to school transport, it should offer a symbolic payment to acknowledge the transport B should have had since Ms M’s original application. If Ms M is unhappy with the offer, she can complain directly to the Ombudsman.
56. The Council should offer Ms M a symbolic payment of £250 to acknowledge her time and trouble pursuing her complaint. The Council should make the payment within six weeks of my final decision.
57. We can also make recommendations to ensure similar faults do not happen in the future.
58. The Council now accepts it cannot expect a parent to accompany a child where they live beyond the statutory walking distance, and can only rely on the parent to accompany a child in these circumstances if it is done so voluntarily.
59. I recommended the Council reviews its home to school transport policies to ensure they comply with legislation and government guidance, in particular concerning accompaniment. The Council should complete the review within three months of my final decision.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have ended my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman