Summary: There was fault in how the Council calculated petrol costs for school transport. The Council recognised its error and now paid the correct amount, but it has also now agreed to recognise the time and trouble the complainant went to in pursing the matter.

The complaint

1. I will refer to the complainant as Miss L.
2. Miss L complains about the Council’s handling of her application for school transport for her disabled daughter. In particular, she says the Council:

• made an irrational decision not to backdate its payments for her petrol costs, leading to her having to appeal the matter; and
• made errors in its calculations for how much it needed to pay, and failed to respond to her requests to provide a breakdown of its calculations.

3. Although the Council has now conceded the points Miss L raised, she does not consider it has considered the time and trouble she went to.

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The Ombudsman’s role and powers

4. 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)
5. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
6. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

7. I reviewed Miss L’s correspondence with the Council.
8. I also shared a draft copy of this decision with each party for their comments.

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What I found

9. Miss L’s daughter, M, is disabled and is subject to an Education, Health & Care (EHC) plan. Prior to the start of the 2018/19 academic year, the Council agreed to name a particular school on the EHC plan, on the condition Miss L agreed to drive M to school and back each day, with the Council paying for a petrol allowance.
10. Miss L appealed to the Special Educational Need and Disability (SEND) Tribunal about this, and some other matters.
11. The Tribunal hearing was originally to take place in September 2018, but was relisted to November. Miss L says she asked the Council to pay her petrol costs to transport M to school and back, pending the outcome of the appeal, but received no reply.
12. Just before the appeal hearing in November, the Council conceded the matter. It asked Miss L to submit an application for school transport through its normal procedure, which she did on 14 November. She said she would drive M to school each day, with the Council’s petrol allowance, but asked for the Council to arrange school transport for the return journey.
13. At the end of November, the Council accepted Miss L’s application. However, it refused to backdate its payments to the start of the school year. Miss L also says it had used an inappropriate route to calculate the petrol costs for the journey. For this reason, she appealed the Council’s decision.
14. The Council upheld Miss L’s appeal on 29 January. On 6 February, the Council gave its calculated figure for the backdated payment. Miss L queried the figure and asked the Council to give a full breakdown of its calculations.
15. On 19 February, she emailed the Council to say she believed it had failed to take account of the fact she had been transporting M to and from school for the autumn term and up to 22 January.
16. On 1 March, Miss L submitted a complaint. She said she had been waiting six months for the matter to be resolved, and the Council was now failing to respond to her point about the error in its calculations.
17. On 6 March, the Council emailed Miss L. It conceded the error, and provided a breakdown of the new calculations. From the total payment, it subtracted an amount which it had already paid Miss L, but included a £150 ‘goodwill’ gesture.
18. On 12 March, Miss L replied. She accepted with the new figures, but said the £150 goodwill gesture the Council had agreed was in relation to a different complaint. She said the Council should rightly offer another £150 payment to reflect her time and trouble pursuing this complaint.
19. On 21 March, the Council replied. It said it had recognised its errors, apologised and offered a goodwill gesture payment, which Miss L had accepted, and did not consider there was any more for it to add. It referred Miss L to the Ombudsman if she wished to pursue the matter.
20. On 22 March, Miss L emailed again. She disputed the Council could decide its compensation for one complaint could also cover a different complaint.
21. On 25 March, the Council replied. It acknowledged the £150 payment was agreed shortly before Miss L had submitted her more recent complaint on 1 March. However, it maintained its view there was nothing further for the Council to add, and again referred Miss L to the Ombudsman.
22. Miss L raised a complaint with the Ombudsman on 27 March.

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Analysis

23. Miss L has been engaged in a protracted dispute with the Council about the school transport arrangements for M.
24. The Council agreed in November to Miss L’s proposal, that she drive M to school, with the Council’s petrol allowance, and the Council arrange transport for her journey home. However, at that point the Council refused to backdate its payments to the beginning of the school year.
25. It is difficult to see the logic here. It was the Council’s own proposal, before Miss L even appealed to the Tribunal, that it would pay her petrol costs. Had Miss L accepted this position, without appealing, the Council would have been paying this from the start of the year in September. So the backdated petrol cost was money the Council had, in effect, already agreed to pay her.
26. It was only at the end of January the Council agreed to pay the backdated costs. Even then, it made an error in its calculations.
27. The Council had agreed to pay £10.08 in petrol costs per leg of the journey. This meant Miss L was due £20.16 for each return journey – that is, £10.08 for the drive to school, and £10.08 for her drive home.
28. When the Council originally calculated its backdated payment, its figure was based on Miss L having completed one return journey each school day since the beginning of the year in September. However, Miss L had actually been completing two return journeys – driving M to school in the morning and then returning home, and driving to school in the afternoon to collect her and then returning home.
29. It was only from 23 January 2019 that M started returning home on school transport, meaning Miss L only needed to complete one return journey each day.
30. This error meant there was a shortfall of approximately £1800 in the Council’s calculations.
31. The Council recognised this error during the complaints process. Miss L now agrees with the calculations, and as I understand it, there is no ongoing dispute about the school transport arrangements.
32. However, Miss L considers the Council should recognise the time and trouble she has been put to in pursuing this matter. She says, if the Council had accepted her proposal originally, the transport arrangements would have been in place since the beginning of the academic year. This means she unnecessarily had to spend extra time driving each school day until 23 January. She has also spent a lot of time in correspondence with the Council.
33. There is a jurisdictional point I must discuss here.
34. Once a matter has been appealed to the Tribunal, the Ombudsman is barred by law from investigating it. This restriction applies even where the Tribunal has not, ultimately, made a finding, as in this case. The courts have also decided the Ombudsman cannot remedy any injustice arising from a matter which has been appealed, even where the Tribunal itself is unable to provide a remedy.
35. I appreciate Miss L’s view she should never have had to collect M from school at all, as the Council has now agreed to arrange transport for her journey home. She considers the additional time she spent driving for that part of the year to be an injustice.
36. However, because of the jurisdictional restrictions, the Ombudsman cannot provide a remedy for this element of the complaint.
37. After the point the Council conceded the appeal, in November, this restriction falls away. There was a further two months where Miss L was required to collect M from school after this point, during which the Council was considering her transport application and her subsequent (internal) appeal.
38. As I have said, I find it difficult to follow the Council’s logic for originally refusing to backdate the payment, given it was the Council’s own proposal to pay these costs from the beginning of the school year.
39. And, while I accept it may have been simple human error which led the Council to originally miscalculate the petrol costs, I do not consider Miss L should have had to make a complaint before it recognised this.
40. So I consider the delays between November and March, while the Council was rectifying these points, to be an injustice to her.
41. I note the Council has apologised for these delays, which is positive. However, I do not consider it appropriate for the Council to consider the £150 it has already paid to be sufficient to remedy the injustice here. As Miss L says, this sum was agreed as a remedy for a different (albeit related) complaint about M’s school transport.
42. I do not take a view on the appropriateness of the £150 as a remedy for that matter, as it is not part of Miss L’s complaint to the Ombudsman. But I consider there remains an outstanding injustice from Miss L’s time and trouble with this complaint, which warrants a separate remedy.

Agreed action

43. Within one month of the date of my final decision, the Council has agreed to pay Miss L £300 in recognition of her time and trouble pursuing this matter.

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Final decision

44. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman