Summary: We found fault with the Council’s handling of home to school transport arrangements for Ms X’s granddaughter, Y. The Council failed to ensure Y could use the transport she was eligible for free of charge. It will apologise to Ms X and reimburse the money she paid towards Y’s school transport. It will also review its approach to home to school transport for eligible looked after children and reimburse other connected and foster carers who made claims for transport expenses and had money deducted before their claim was paid. There was no fault in the Council’s handling of a home visit in October 2020.

The complaint

1. Ms X complains the Council:
1. failed to cover the cost of her granddaughter Y’s transport to school.
2. allowed a social worker who later tested positive for COVID-19 to carry out a home visit without suitable personal protective equipment.
2. Ms X says she has incurred expenses in covering the cost of Y’s transport to school, and she and Y were put at risk from COVID-19 and forced to self-isolate because of the home visit. She would like the Council to apologise for the home visit and cover the cost of Y’s monthly train ticket in full.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. If we are satisfied with a council’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

7. I have considered the complaint made by Ms X and the documents she provided.
8. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Law and guidance

11. This complaint involves events that occurred during the COVID-19 pandemic. The government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

Caring for looked after children

12. A council generally has parental responsibility for looked after children in its care. This means the council makes all significant decisions about the child including decisions about where they go to school.
13. Councils may place a looked after child with a ‘connected person’, that is a relative, friend or other person connected with a child. If a council has not yet assessed the connected person as suitable to be a foster carer, it can still place the child with the connected person if they are satisfied it is necessary and should begin an assessment as soon as possible. Once approved as foster carers, the person will receive support and supervision from an assigned social worker.
14. The Council’s fostering handbook says changes of school should be avoided for looked after children as this will disrupt their education. A change of school should not take place in the middle of a school year or in years 10 and 11 unless this is unavoidable.
15. The handbook also says to keep a child at the same school those with responsibility for school transport should be approached to see if they can provide help with transport.

Fostering allowances

16. The Council pays allowances to connected persons and other foster carers to cover the costs of looking after a child. In the period under investigation, for a child aged 11-15 the weekly allowance was £197.40. The Council said of this, £18.24 was to be used to pay for transport.
17. The Council’s payment policy says wherever possible it expects foster carers should transport children in their care to education. Where appropriate, young people should be encouraged to use local public transport and should be provided with reasonable funds to enable them to do so.
18. The policy says foster carers can claim mileage or public transport costs for journeys to and from school where the child is not entitled to a bus pass or cannot use public transport. The Council said the £18.24 allowed for transport would be taken off any mileage claim.

Home to school travel arrangements

19. Under the Education Act 1996 councils must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided ‘free of charge’ (section 508B).
20. ‘Eligible children’ are defined in Schedule 35B of the 1996 Act. They include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and
• children for whom the local council has not made suitable arrangements for the child to become a registered pupil at a qualifying school.
21. The relevant ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have’.
22. The government’s Home to School Travel and Transport guidance 2014 says that to comply with their home to school transport duties local authorities must “make transport arrangements for all eligible children.”

Our previous investigations

23. We issued a previous report on this issue in August 2017. The council involved refused to provide free school transport to foster carers to take the child they fostered to school. The child attended a school over the statutory walking distance and the council decided the child should remain at this school during the foster placement. This was considered to be in the child’s best interest. We found fault causing an injustice as the council wrongly insisted the foster carers must use the child’s fostering allowance to provide transport to school when they were eligible for free school transport. This was against the requirements set out in the Education Act 1996. We found other foster carers in the council’s area may also have been affected by this fault.
24. We publicised the report and also wrote to the Association of Directors of Children’s Services (ADCS) in October 2017 to highlight the issue. This was because several councils appeared to be acting in error over foster carers caring for children who are eligible for free school transport. We advised that councils should amend their policies to comply with the law.
25. We also issued a report in 2018 on a case involving foster carers and a council’s failure to pay them the transport costs for an eligible child. The report further confirmed our position that foster carers looking after an eligible child should not have to use the fostering allowance to pay for transporting the child to school. A third report, published in January 2020, reiterated our position on this matter.

Home visits during COVID-19 pandemic

26. In normal circumstances, a looked after child’s social worker should visit them at least every six weeks. The Council’s procedure manual says a supervising social worker should visit a foster carer at least every four weeks, including at least one unannounced visit a year.
27. In March 2020, the government announced the first national lockdown. In April, it made temporary changes to the law about children’s social care and updated these in September. The Adoption and Children (Coronavirus) (Amendment) (No.2) Regulations 2020 temporarily altered councils’ duties to visit looked after children in their placement every six weeks. The regulations allowed visits to be carried out by telephone, video-link or other electronic means, if carrying out a home visit would be contrary to any guidance in place at the time or would not be reasonably practicable due to COVID-19. These changes only applied to visits by social workers to looked after children.
28. The government did not publish specific guidance about social workers carrying out supervision visits to foster carers. At the time of the events complained about, the government had introduced a ‘tier system’, placing different council areas into tier one (medium), two (high) or three (very high) depending on the restrictions required in response to the COVID-19 pandemic. However, the law allowed for social work visits to continue if they were considered ‘reasonably necessary for work purposes’.
29. The guidance in place at the time said close contacts of individuals who tested positive for COVID-19 had to self-isolate for 14 days.

What happened

30. Ms X cared for her granddaughter, Y, from May 2020 until January 2021 as a connected person. Y was in year 10 when she went to live with Ms X. Since January 2021, Ms X has cared for Y under a Special Guardianship Order.

Transport to school

31. Y attended a school over 30 miles from where Ms X lived. When the Council first placed Y in Ms X’s care, it paid her a mileage allowance to drive Y to and from school each day, a journey of about one hour each way.
32. From September, Y began taking the train to and from school. A monthly ticket cost £138. Ms X says the Council paid for the first month’s ticket. However, from October the Council said it would only subsidise the difference between the weekly travel allowance Ms X received as part of her fostering allowance and the cost of the ticket. This meant Ms X paid around £73 towards the monthly ticket based on her weekly travel allowance of £18.24, with the Council paying £65.
33. Ms X complained to the Council, citing the Ombudsman’s decision from January 2020 about the use of fostering allowances for children eligible for free home to school transport. The Council did not uphold her complaint. It said it would continue to subsidise the transport to school and Ms X would receive a mileage payment for transporting Y to other activities and to see her mother.

Home visit

34. On 19 October 2020, a social worker contacted Ms X to say a face-to-face supervising social worker visit was due. The Council says the social worker asked Ms X if either she or Y were shielding or had been in recent contact with anyone suspected of having COVID-19. The Council says Ms X did not object to the visit, but she and Y were experiencing COVID-19 symptoms and needed to take a test before a visit could take place. The social worker agreed to call after 21 October to arrange a visit if the tests were negative.
35. On 21 October Ms X told the social worker both tests were negative and agreed to a visit on 27 October. The Council says the social worker told Ms X he could see Y from the doorstep if she was not okay with him entering the property. He says Ms X agreed he would be able to come in, though Ms X disputes this.
36. On 27 October, the social worker called Ms X before his visit to say he was not experiencing any symptoms of COVID-19 and Ms X confirmed the same for her and Y. The Council says the social worker sanitised his hands and wore a mask before approaching Ms X’s home. The Council told me he asked Ms X again to confirm she was happy for him to come in, though Ms X disputes this. The Council says the social worker did not wear gloves as he had used hand sanitiser and did not wear an apron as this would not have provided any added safety benefits. Ms X confirmed the social worker wore a mask throughout the visit, which lasted for around 30 minutes.
37. In response to my enquiries, the Council said a face-to-face visit was necessary because it needed to see Y in her home. It said Y was a vulnerable child who had periods of going missing, so it was essential to visit her at home with Ms X. The Council had not seen Y in person since March 2020 and so felt it was important to see her.
38. Later the same day, the social worker began feeling unwell. He received a positive test result for COVID-19 on 30 October and immediately contacted Ms X by text to tell her. As a result, Ms X and Y had to self-isolate for 14 days meaning Y missed school.

Analysis

Transport to school

39. Y attended a school more than three miles away from her home. The Council, which held parental responsibility for her as a looked after child, did not make suitable arrangements for her to become a registered pupil at a nearer qualifying school. Therefore, she was an eligible child and should have been provided with home to school transport free of charge.
40. Ms X should not have been expected to use part of her fostering allowance to cover the cost of home to school transport which Y was entitled to. This was fault. The Council has not provided transport ‘free of charge’ as required by the Act.
41. The Ombudsman’s position on the use of fostering allowances to transport children who are eligible for free home to school transport has been clear since we issued our first report on this subject in August 2017. The Council’s payments policy for fostering allowances is not legally compliant on home to school transport for eligible children. This has caused an injustice to Ms X and to other foster and connected carers who may have been similarly affected.

Home visit

42. It was the Council’s professional view that a face-to-face visit was required as Y had not been seen by a social worker since March 2020 and was a vulnerable child. This is a decision the Council was entitled to make, and I have not seen any reason to question it.
43. There is no evidence to suggest the visiting social worker wearing an apron or gloves during his visit would have prevented Ms X and Y from having to self-isolate following him testing positive for COVID-19. I have no reason to doubt the Council’s statement that he sanitised his hands before the visit and Ms X accepts he wore a mask throughout. I am satisfied the Council took necessary steps to ensure neither Ms X, Y nor the social worker were displaying symptoms of COVID-19 before the visit.
44. It is unfortunate the social worker developed symptoms of COVID-19 on the evening of his visit to Ms X and Y and this meant they had to self-isolate for 14 days. However, I have not seen evidence this was due to any fault by the Council.

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Agreed action

45. To remedy the injustice to Ms X, within one month of this decision, the Council will:
• apologise to Ms X for the fault identified.
• reimburse Ms X the weekly contribution she was expected to make towards her mileage claim to take Y to school and later Y’s train fare to travel to school for the period Y was placed with her as a looked after child.
46. To remedy the injustice to others within three months of my final decision the Council agreed to:
• review its payment policy to ensure looked after children who are ‘eligible’ children receive the free home to school transport they are entitled to, and foster and connected carers are not expected to use part of their fostering allowance to cover the cost of this; and
• identify and reimburse foster and connected carers who made successful applications for transport expenses since October 2017 and who had the weekly transport allowance deducted before their claim was paid.
47. The Council should provide evidence to the Ombudsman these actions have been completed within the stated timescales.

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Final decision

48. I have completed my investigation with a finding of fault for the reasons set out in this statement. Ms X was caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice and injustice caused to others by the fault.

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Investigator's decision on behalf of the Ombudsman