The Ombudsman's final decision:
Summary: Miss B complains that the Council should backdate her daughter’s school transport mileage payments to 2005 because her school was named in her SEN Statement. She also considers that the Council has underpaid her since 2011. The Ombudsman has discontinued his investigation into the backdating of payments because the Council told Miss B in 2005 that it considered the school to be parental preference, and she could have complained then if she felt her daughter was entitled to school transport. The Ombudsman does not consider that Miss B has been underpaid since 2011.
- Miss B complains that the Council:
- has not paid her the school travel allowance to which she was entitled for her daughter, C, and it should backdate the allowance to September 2005;
- has underpaid the mileage allowance since 2011; and
- has not paid the mileage allowance for the most recent period.
The Ombudsman’s role and powers
- We investigate complaints about “maladministration” and “service failure”. In this statement, I have used the word “fault” to refer to these. 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)
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
- I have considered Miss B’s written complaint and supporting papers and spoken with her. I have written to the Council and considered its response. I have also sent Miss B and the Council a draft decision and invited their comments.
What I found
- Miss B’s daughter, C, has attended a private school (the School) since 2002. In July 2004, Miss B applied for a Statement of Special Educational Needs (SEN) for C.
- In Spring 2005, Miss B responded to the Council’s draft Statement explaining that she could not nominate the School in the Statement because she could not afford to pay for C to attend the school. She said she also could not nominate the three Local Education Authority (LEA) schools that she had been shown because she did not consider they were as good as the School. She said, if the Council named an LEA school, she would take legal action for not making reasonable adjustments under the Disability Discrimination Act.
- In May, the Council issued a Statement for C, referring to provision at an LEA mainstream school. On 20 June, the Council amended C’s Statement to name a specific mainstream LEA School. On 30 July, Miss B wrote to the Council with concerns over C’s statement. After this, the Council issued an amended statement naming the School.
- On 9 August, the Council wrote to Miss B. The officer acknowledged that Miss B had been unhappy with the decision not to pay C’s fees at the School. But she felt that the Council had clearly informed Miss B that it considered that C’s needs could be met at a mainstream school and she would have to fund C’s place at the School herself as personal preference.
- However, the officer accepted that the revision of the wording in C’s Statement had caused confusion. She accepted that Miss B had (incorrectly) believed that the Council had revised its decision to pay C’s fees at the School. The officer said “For this reason, and this reason only, I can now confirm that [the] Council will pay the fees for [the] School”. The Officer also referred to correspondence with the Ombudsman, though we no longer hold records of this.
- On 15 August, the Council sent Miss B a copy of the revised Statement referring to placement at the School, but also including the letter of 9 August explaining that this was personal preference. A subsequent internal memorandum was critical of the decision to agree to pay for C’s placement at the School and incur a bill of around £100,000 for C’s schooling, when the Council regarded it as a real possibility that the named School would be changed.
- Miss B says she called the Council in 2005 to ask it to pay for C’s school transport, but the Council refused this.
- In August 2009, Miss B wrote to the Council requesting a travel allowance. She said the National Autistic Society (NAS) had told her that she should have been given a travel allowance when C was five (i.e. in 2005). She asked the Council to backdate the allowance to 2005 as she said she had been going without food to pay for petrol. The Council refused Miss B’s transport request.
- There were annual reviews of C’s Statement before the Council issued a new Statement for C in September 2011. The Statement again named the School.
- In September 2012, the Council started making mileage payments to Miss B. The payments were 25p per mile, in line with the then policy.
- In April 2013, C’s Additional Needs Coordinator submitted a Transport Request for special circumstances on Miss B’s behalf. She asked the Council to backdate the petrol allowance to 2005. The Council again turned the request down.
- In April 2014, the Council increased the mileage payments to 50p per mile in line with the new HMRC recommendations.
- In July 2016, Miss B contacted the Council to request backdating of mileage payments. She also wrote to the Council in September requesting backdating of the travel allowance to 2 August 2009 due to hardship. She said she had made a claim in 2009 and C was entitled to the payment from age 5, but had been told that C was not entitled to this. She said she had since learnt this to be incorrect.
- The Council reviewed Miss B’s request. In January 2017, it initially refused her request because the decision to pay C’s school fees from 2005 was a goodwill gesture in response to the confusion over naming the School in the Statement. It said the decision to pay the fees was not because the Council agreed that the School was the nearest appropriate school, so C was not entitled to free school transport.
- Miss B appealed again. The Council agreed to backdate the payments to 2011 because the 2011 Statement made no reference to the placement at the School being personal preference.
- The Council agreed to pay Miss B £820.80 for the 2011/12 school year. This was based on a payment of £4.32 per day (at 25p per mile) and the assumption that C had attended for the full 190 school days in that year. The Council did not agree to backdate before 2011, as it considered the 2005 placement was personal preference.
- The Council also noted that C’s attendance had been fairly low but that Miss B had claimed the full allowance each month. It agreed not to take retrospective action but said it would require evidence of attendance going forward.
- Miss B continued to correspond with the Council. She requested around £25,000 in transport payments because she considered that the Council should backdate payments to 2005 and that it had also had underpaid her since 2011.
- In July 2017, a School Transport Appeal considered Miss B’s appeal under the final stage of the Council’s appeals process. The Panel declined to pay for C’s transport back to 2005 because:
“the Travel and Transport team's decision to only backdate transport payments to September 2011 is justified as the Local Authority's position that a maintained mainstream school could meet C's needs remained unchanged until September 2011 (when the statement was reviewed and re-issued).”
Backdating to 2005
- Miss B considers that she has been entitled to receive a travel allowance for her daughter since September 2005 and that the Council should backdate this. She says the School was never parental preference and, once the School was named in the statement, she should have automatically received school transport for C, irrespective of the reason for naming the School.
- Miss B has explained the difficult circumstances she had been through at the time including suffering a bereavement and being sole carer for her daughter, who has a disability. She also says she only became aware of the Local Government Ombudsman in the past year through speaking with her legal advisers.
- The Ombudsman agreed to exercise discretion to consider Miss B’s complaint about backdating to 2005 because she had explained that she had only recently found out that she had been entitled to the payment.
- But the Council clearly told Miss B in 2005 that it considered C’s placement to be parental preference and refused her transport on that basis. Miss B applied again for assistance in 2009, stating that the NAS had said that C was entitled to transport from 2005. She also applied again in 2013 with the support of C’s Additional Needs Coordinator.
- I appreciate the difficult circumstances that Miss B has been through, but it seems clear that Miss B has long been aware that the Council regarded C’s placement at the School in 2005 as personal preference and therefore carrying no entitlement to transport. It seems clear that she considered this to be incorrect, as indicated by her reference to the NAS’s comments.
- Moreover, the Council’s letter to Miss B dated 9 August 2005 states: “I am aware that correspondence has recently been received from the Children's Legal Centre and from the Local Government Ombudsman regarding this matter. Therefore I will arrange for a copy of this letter to be sent to the Children's Legal Centre and to the Ombudsman to clarify the current position”.
- This letter indicates that Miss B had complained to the Ombudsman in 2005, though we do not keep records going back that far. Even if that were not the case, the letter clearly refers to the Ombudsman, so Miss B was made aware of the Ombudsman through that letter.
- As the evidence suggests that Miss B was aware of the Ombudsman and had legal advice, I consider that she could reasonably have complained to the Ombudsman in 2005. Because she did not complain to the Ombudsman within 12 months of becoming aware of the matter, I consider that this matter is out of time for the Ombudsman to consider and outside the Ombudsman’s jurisdiction.
- Moreover, given the time passed, I cannot now realistically determine what might have occurred had Miss B chosen to challenge the Council’s position that the placement was personal preference when she previously applied for transport.
- Miss B says the Council has underpaid the travel allowance by only paying her £4.32 a day and later £8.64 a day. She says the Council:
- should have been paying her at the “offer rate” of £5 set out in the “handbook”;
- calculated payments based on the wrong distance, which she says should be a round trip of 12 miles;
- should have made payments for four round trips on days when she had to take C to the clinic at lunch time.
- It is unaware of any “offer rate” of £5 set out in any handbook. Up to March 2014, the rate within the Council’s policy was 25p per mile, and the current policy clearly states 50p per mile for 2 return journeys per day.
- It calculates mileages using the shortest distance by road. It uses the same system to measure distances for all families, and has calculated the round trip as 8.64 miles.
- Its policy clearly states that it provides transport only at the start and end of the school day. It does not provide transport to attend health or other appointments during the day.
Allowance for the most recent period
- Miss B says the Council has not paid her allowance for the most recent period.
- The Council says its last payment to Miss B was the invoice for May 2017 (dated 2 June 2017) which was paid on 16 June 2017. It says it has no record of receiving the invoice that Miss B has provided for June 2017 (dated 30 June 2017). The Council is willing to pay the June claim, once received, provided that the School can confirm that C attended the 12 days that are stated. However, it understands that C had left the School at this point.
- I see no evidence of fault here. It is open to Miss B to provide evidence of attendance if she wishes to pursue the claim for June 2017.
- I have discontinued my investigation into Miss B’s complaint about backdating to 2005 because these matters are out of time and outside the Ombudsman’s jurisdiction. I have found no evidence of fault in respect of Miss B’s complaints about payments for more recent periods.
Investigator's decision on behalf of the Ombudsman