East Sussex County Council (16 005 516)

Category : Education > School transport

Decision : Upheld

Decision date : 30 Mar 2017

The Ombudsman's final decision:

Summary: The Council was at fault in the way it considered Mrs X’s application and appeal for home to school transport for her son who has special educational needs. It has agreed to refer the case back to the appeal panel, reimburse travel expenses if the panel finds in her favour, and review the wording of its school transport policy.

The complaint

  1. The complainant, referred to here as Mrs X, complained that the Council has failed to properly consider her application and appeal for help with home to school transport for her son to go to secondary school. She says the Council and the Transport and Student Support Panel have not properly considered the effect of his special educational needs and disabilities or the difficulties she and her husband have in taking their children to different schools.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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, sections 26(1), 26A(1), and 34(3) as amended)
  2. 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)
  3. 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

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport. I shared my draft decision with the Council and the complainant and considered their responses.

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What I found

  1. Local authorities must make suitable arrangements for free home to school transport to a child’s nearest suitable school in certain circumstances. Eligible children include:
    • children living outside the ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children over eight)
    • children who live within walking distance of the school but who ‘cannot reasonably be expected to walk to school’ because of their special educational needs, disability or mobility problem. (Education Act 1996, section 508B(1) and Schedule 35B)
  2. Councils also have discretion to offer transport where they consider it necessary to help the child attend school.
  3. In carrying out their duties councils must take account of government guidance, ‘Home to school travel and transport guidance’. This says:
    • In deciding whether a child can reasonably be expected to walk to school, local authorities must consider whether the child can reasonably be expected to walk if accompanied, and if so, whether the child’s parent can reasonably be expected to accompany the child.
  4. In discussing the suitability of transport arrangements, the guidance says:
    • “for arrangements to be suitable, they must … be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.”
  5. The Council’s ‘School Transport Policy’ has a section on transport for pupils with medical conditions. It says

“Some children may be unable to walk even a short distance to school. We may be able to assist with travel assistance if all other solutions have been looked into. For example if arrangements with another parent or discussions with the school about travel options have been unable to provide a solution….we will need to see medical evidence from a consultant or GP who must confirm your child’s medical condition and that your child cannot walk the statutory distance.”

  1. The Council’s policy includes a procedure for dealing with appeals and complaints. Where the Council’s ISEND Travel Assistance Panel refuses an application for help with transport, a parent may appeal to the Transport and Student Support Panel. The appeal panel consists of three councillors who consider applications outside of the normal transport policy. They may consider the personal and financial circumstances of the applicant. The policy says the Panel may only agree help with transport “in the most exceptional circumstances”.

What happened

  1. Mr and Mrs X have two children, Y now aged 12, and a younger child who attends primary school. Y has special educational needs and has an Education Health and Care Plan (EHC Plan). He has a diagnosis of Autism Spectrum Disorder with associated difficulties with social communication. He has epilepsy, controlled by medication, and a developmental co-ordination disorder. His EHC Plan says an Occupational Therapist (OT) assessment found that he has difficulties with fine and gross motor skills, and a lack of co-ordination and balance, and that he tires easily with exercise.
  2. The Council provided taxi transport for Y to and from primary school. When he was due to transfer to secondary school in September 2016, Mrs X applied to the Council for help with transport. She said Y could not travel to school on his own because of his autism, anxiety and risk of an epileptic fit. She said she could not take him to school because she had two children attending different schools that started and finished at the same time.
  3. The Council rejected her application in May 2016 on the basis that Y’s school was less than the statutory walking distance of three miles from home.
  4. Mrs X appealed to the Transport and Student Support Panel on the grounds of her Y’s medical needs and ‘other exceptional circumstances’. She explained her reasons again and provided copies of the following documents:
    • Y’s EHC Plan
    • an email from Y’s GP
    • a letter from Y’s consultant paediatrician prescribing treatment for epilepsy
    • copies of correspondence with Mrs X’s MP.
  5. The letter from the GP said Y’s major disability with his autism was the ‘social interaction component’. He pointed to difficulties Y would have navigating and with social interaction with strangers if he was travelling to school on his own.
  6. The Transport and Student Support Panel considered the appeal in June 2016. The Council wrote to Mr and Mrs X with its decision. It said the Panel had carefully considered the information they had provided, including the email from the GP and the Council’s response to the MP. But it said “the Panel decided that they are not prepared to exercise the discretion available to them to assist in whole or in part with [Y’s] travel. The letter explained:

“in reaching their decision, the Panel noted the distance between your home and the school was within the statutory walking distance of three miles. The Panel also noted that the application had not been made on the grounds of financial hardship and were not satisfied that the circumstances of your case amounted to an ‘exceptional circumstance.’”

  1. Mrs X complained to the Ombudsman. She also sent the Council a copy of a report of a more recent OT assessment, which noted that Y had poor performance on the standing and walking balance test and that he tired easily.
  2. The Council referred the application back to the ISEND Travel Assistance Panel for a review of its decision. It contacted the OT who had carried out the assessment and said that Mrs X had sent his report as “proof [Y] is unable to walk 2.1 miles to school whilst being accompanied by adult”. It asked for the OT’s view. It noted that the report mentions that Y tires easily at times but did not specifically say whether he would manage to walk to school.
  3. In response the OT said he could not comment specifically on Y’s ability to walk long distances. But he said Y appeared to be quite tired whenever he saw him. He gave the view that there was no physical reason why Y could not walk the distance to school that he was aware of. However he said the question for him would be about ensuring Y’s energy levels were managed over the course of the school day. In other words he said he would not want Y to be exhausted before he arrived at school. He said he could not give a definitive yes or no answer. While he said there was an argument that increased physical activity would help build up muscle condition, this would have to happen slowly. He ended by saying that the question was probably more one for a physiotherapist than an OT.
  4. The Council reviewed its previous transport decision taking account of the OT’s report and comments. It wrote to Mrs X rejecting her application again in October 2016. In explaining its decision the Council said its previous decision declining the application had been “based on the fact that the distance was under the statutory minimum and [Y] was considered to be able to walk the distance accompanied despite his special educational needs and disabilities”. It said it had now consulted the OT. It confirmed that the OT could not comment on Y’s ability to walk long distances other than saying he could walk but the journey may affect his energy levels at school. However, the Council said, “the panel considered that this could be addressed by the structure of the school day”. The Council said it upheld the original decision not to award transport because the OT report did not provide enough evidence that Y could not walk to school accompanied by an adult.
  5. In response to the Ombudsman’s enquiries the Council said the Panel concluded that the OT report was not new or significant evidence. It said “the Report did not conclusively state that the child was unable to walk the [distance] to school whilst being accompanied by a parent. On this basis, the Panel did not alter its earlier decision.”
  6. The Council then gave its view that this was not a fresh decision and so did not carry a further right of appeal. It said the Panel reviewed the information provided and decided there were no new facts which justified a change of approach. It said if the Council were to offer a new appeal every time an applicant provided further information, even if it did not affect the decision, it would potentially set up a continuous never-ending process that would be unnecessarily burdensome for the Council.

Analysis – was there fault causing injustice?

  1. On the basis of the information I have seen I consider that the Council’s decision on Mrs X’s application in May 2016 and the Transport and Student Support Panel decision on her appeal in June 2016 were flawed. All the written evidence indicates that the Panel rejected the application because the home to school distance was less than three miles and it did not consider the circumstances exceptional enough to award discretionary transport. There is nothing in the minutes of the meeting, the decision letter or any of the documents the Panel considered to show that the Panel looked at whether Y ‘could reasonably be expected to walk to school’ given his special educational needs, disability or mobility problem, as the law requires.
  2. The Council accepts that there is no mention of this part of the legislation in the documents. Nevertheless it says the Panel did consider this point. In the absence of any documentary evidence showing how the Panel reached the decision that Y could reasonably be expected to walk to school I find that the Council has not been able to demonstrate it considered the matter properly. The only mention of this part of the provision came when the Council explained its review decision in October 2016.
  3. I find that the review decision was also flawed. The Council is right to consider the ability of a child to walk to school accompanied by an adult, rather than alone, and on this occasion it did look at whether Y could walk to school despite his disabilities. But in my view the Council did not consider the matter properly. It did not apply the correct test. It looked at whether there was ‘conclusive proof’ that Y was ‘unable’ to walk to school rather than at whether, weighing up all the evidence, he ‘could reasonably be expected to’ walk to school.
  4. Nor have I seen evidence that the Council took proper account of the statutory guidance. This says that for transport arrangements to be suitable they must be reasonably stress free, to enable the child to arrive at school ready for a day of study. The Council heard how Y tires easily and that there were professional concerns about whether the walk would leave him exhausted on arriving at school. It did not explain how it arrived at the decision that Y’s energy levels “could be addressed by the structure of the school day”. There is no record of what changes it thought could be made to the school day to accommodate Y’s needs or where it obtained this information from.
  5. So I find that the Council has not shown how it reached its decision and has not explained the decision properly to Mrs X.
  6. These failings have caused an injustice to Mrs X and her son as they are left not knowing what the Council’s decision would have been if the application was considered properly.

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Agreed action

  1. I recommended that to remedy the injustice the Council should refer the case back to the Transport and Student Appeal Panel to reconsider. I accept the Council’s argument that in general it would be unnecessarily onerous to allow applicants to continually submit further information even if it is not new, thereby giving them endless further rights of appeal. However in this case my recommendation was based on my view that the decision-making at each stage has been flawed and so should be looked at again.
  2. If the Panel’s decision is to award transport, the Council should reimburse Mrs X the reasonable costs of transporting her son to and from school since September 2016.
  3. The Council agreed to these recommendations.
  4. It also agreed to review the wording of its School Transport Policy to better reflect the legislation. In my view the policy should indicate that:
      1. a child will qualify for free home to school transport if he or she cannot ‘reasonably be expected to’ walk to school even if it is under the statutory distance; and
      2. the Transport and Student Support Panel may consider whether the child qualifies for transport under the law or policy as well as whether to award it on a discretionary basis outside the policy.

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Final decision

  1. I find that the Council was at fault in the way it considered Mrs X’s application and appeal for home to school transport. I am satisfied with the action the Council has agreed to take to remedy the injustice to Mrs X and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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