Summary: the Council has not properly considered Ms M’s application for school transport for her son, B. The Council has not taken account of all relevant information and has not provided Ms M with a suitable appeal.

The complaint

1. Ms M complains the Council refused her request for school transport for her son, B.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
3. 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)
4. 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. 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

6. I have considered:
• information provided by Ms M;
• information provided by the Council;
• the Education Act 1996; and
• Home to school travel and transport guidance. Statutory guidance for local authorities published by the Department for Education in July 2014.
7. I invited Ms M and the Council to comment on my draft decision.

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What I found

8. Ms M’s son, B, has an Education, Health and Care (EHC) Plan. He has attended a Community Special School in Worcestershire since January 2017.
9. Ms M and B moved to Worcestershire in July 2017 when Worcestershire County Council became responsible for B’s education. Ms M requested ‘SEN Special Transport’ in June 2017, shortly before the family moved. The Council refused. The Council said it was unable to offer any transport assistance because Ms M lives within the statutory walking distance. Ms M’s new home is less than three miles from the school.
10. Ms M appealed the Council’s decision. She explained that B was 14 years old and has no experience of walking to school or catching public transport by himself as the Council where they used to live provided school transport. She said B is vulnerable and does not have the skills to recognise dangers. Ms M explained they were new to the area. She said she would like B to receive independent travel training to develop the skills to travel independently, but he would initially need transport to be provided.
11. An officer considered Ms M’s appeal. The notes of the officer’s consideration say:
• the Council refused Ms M’s application because she lives less than the statutory walking distance from the school and B does not have an ‘absolute need’;
• the Council does not expect B to walk to school alone, it expects a parent to accompany him;
• if B is capable of independent travel training he cannot be classed as ‘an absolute need’ so the Council’s decision must be based on distance;
• the Council will not be able to offer independent travel training because B is not eligible for transport.
12. A manager has endorsed the decision to reject Ms M’s appeal and wrote:
• age and distance are the key factors;
• independent travel training should start sooner rather than later.
13. The Council wrote to Ms M on 3 August 2017 to explain its decision not to uphold her appeal. The Council said it will only consider travel assistance to the nearest or designated school where the school is further than the statutory walking distance.
14. The letter went on to say the Council had received no evidence to suggest B could not walk to school, accompanied as necessary, so transport remained ‘parental responsibility’.
15. The Council invited Ms M to provide medical evidence “as to why [she] felt [B] would be eligible for travel assistance” and said the Council would look at her application again.
16. Finally, the Council invited Ms M to use the Council’s corporate appeals process if she remained unhappy.
17. Ms M submitted a ‘corporate appeal’. She explained in detail why she was unhappy with the way the Council had considered her request for school transport. She said she thought the Council had discriminated against B and failed to take account of his disability. She said she did not think the distance to the school was relevant; the Council had failed to take account of B’s special educational needs, focussing instead on his physical ability to walk; and it was unreasonable to expect a parent to accompany a 14 year old to school. She questioned whether the Council had considered the safety of the route.
18. The Council then considered Ms M’s complaint at the second stage of its corporate complaints process. The Council appointed an independent investigator who produced a report on 24 November 2017. The investigator did not uphold Ms M’s complaint, although he noted that B’s EHC Plan had not been reviewed for some time and recommended the Council carry out a review. Ms M remained dissatisfied and asked the Council to consider her complaint at the third and final stage: the complaint review panel. The review panel did not uphold Ms M’s complaint. Ms M remained dissatisfied and asked the Ombudsman to consider the matter.

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. Eligible children are children of compulsory school age who:
• cannot reasonably be expected to walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance; or
• receive free school meals, or whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B)
21. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
22. The nearest 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.
23. Government guidance says, “In determining whether a child cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’ […], the local authority will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.”
24. The guidance continues, “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”
25. The guidance says children should be assessed on an individual basis and transport should be arranged for children who cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs (SEN) or disability.

Consideration

26. The Ombudsman does not decide whether the Council should provide school transport for B. This is the Council’s job. My job is to check the Council made the decision properly.

Ms M’s original application

27. The Council sent me a ‘Request for SEN Special Transport’ form which it says was Ms M’s application for school transport. It appears the form must be completed by a Council SEN caseworker, not the parent.
28. The form asks, “Is there an absolute need for transport?” It is not clear what “absolute need” means. The term is not defined, and is not used in legislation or government guidance. “Absolute need” would suggest eligibility for transport. It is unclear how somebody completing an application would be in a position to make a decision about eligibility.
29. The form also has boxes to record reasons why a pupil may not be able to walk to school even if they live within walking distance, and “discussions” about pupil needs, parental preference, and why council-funded transport is necessary. On B’s application, these boxes are blank.
30. Apart from her initial request the Council provide transport, Ms M does not appear to have been involved in her own application at all before the Council made a decision. There do not appear to have been any discussions with her about B’s needs or why she thinks the Council should arrange transport. There is no additional information about her application recorded on the form. This is fault.
31. The Council refused Ms M’s application for transport because B lives less than the statutory walking distance from school and B does not receive free school meals.
32. B has special educational needs. He attends the nearest suitable school. The school is less than three miles from his home. B is eligible for transport if he cannot reasonably be expected to walk to school because of his special educational needs or disability. There is no evidence the Council considered the impact of B’s special educational needs when Ms M first applied for transport. This is fault.
33. The faults in the Council’s consideration of Ms M’s application call its decision into question. The Council has not considered all relevant information.

Ms M’s appeal

34. Ms M appealed the decision. It appears this was the first opportunity Ms M had to explain why she believes the Council should provide transport.
35. The notes of the appeal do not accurately summarise Ms M’s case. Ms M referred to B’s vulnerability and explained he does not have the skills to recognise dangers or minimise risks. The notes of the appeal do not record these matters. This is fault.
36. Further, in recording its decision making, the Council contradicts itself and fails to consider all relevant information. This is fault.
37. Ms M said she wanted independent travel training for B in the future. The notes say that if B is capable of independent travel training, he cannot be classed as “an absolute need” (whatever that means) and he is not eligible for transport. The notes say the Council will not be able to offer independent travel training as B is not eligible for transport. This is a circular argument which does not address B’s need for transport. Further, it fails to recognise that someone who needs training to be an independent traveller is likely to be incapable of travelling interpedently at the time of the assessment.
38. Having stated that B is not eligible for independent travel training (ITT), the manager notes, “ITT should start sooner not later.”
39. The notes of the appeal say the Council does not expect B to walk to school on his own. It expects a parent to accompany him. Government guidance says the Council must consider whether the child’s parent can reasonably be expected to accompany the child. It says a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.” There is no evidence the Council considered any of these factors. This is fault.
40. The decision letter the Council sent following Ms M’s appeal says, “No evidence has been received to indicate that B has mobility issues which would prevent him from being able to walk to school, accompanied as necessary…”.
41. Government guidance makes it clear the Council must consider not only mobility but “health and safety issues related to [B’s] special educational needs”. There is no evidence the Council considered these issues, despite Ms M having raised them in her appeal. This is fault.
42. These faults call the Council’s decision on Ms M’s appeal into question.

Ms M’s complaint

43. When Ms M challenged the appeal decision, the Council responded through its corporate complaints process. While it is ultimately for councils to decide how to consider appeals against school transport decisions, the Council’s corporate complaints process did not provide an effective appeal against the Council’s decision.
44. Ms M appealed the Council’s decision: she wanted the Council to make a different decision on her application. The Council simply conducted a review: it checked it had applied its policy correctly. The complaint investigation report even states, “It is not for the complaints procedure to question the professional judgement of Officers and the Investigating Officer is satisfied that all information has been taken into account.” The complaint review panel, the final stage, said it could not consider new information and was limited to considering whether the investigation had been carried out competently. The purpose of an appeal is for the Council to consider making a different decision.
45. Government guidance sets out a recommended two-stage appeals process. It says the second stage of the appeals process should be a review by an independent panel which should consider written and oral representations from the parent. Councils should follow the guidance unless they have very good reason not to. The Council has not provided Ms M with an appeal as intended by the guidance. This is fault.
46. The whole process has taken too long. The Council refused Ms M’s request for transport in June 2017. The Council gave its final response to her appeal/complaint in October 2018. This was 328 working days. The recommended appeals process in government guidance allows a maximum of 65 days for the Council to consider a complaint and appeal.

Conclusions

47. The Council has not properly considered Ms M’s request for school transport for her son, B. There have been faults at each stage of the process which call the Council’s decisions into question. In particular:
• the Council made its original decision without any input from Ms M and as a result did not consider all relevant information;
• the Council’s decision on Ms M’s appeal does not take account of all relevant information;
• the Council has not provided Ms M a suitable stage two appeal, it has simply reviewed its decision again. This is not what government guidance intended;
• there is no evidence the Council has considered all relevant information, in particular:
1. whether health and safety issues related to B’s special educational needs have an impact on his ability to walk safely to school;
2. if so, whether Ms M can reasonably be expected to accompany B to school; and
3. whether one would ordinarily expect a child of B’s age to be accompanied.
48. These faults call the Council’s decisions into question.
49. The Council has delayed unreasonably in considering Ms M’s appeal.

Agreed action

50. The Ombudsman has 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.
51. I recommend the Council:
• apologise to Ms M for the faults and delays I have identified;
• review the way it considers applications and appeals to address the faults I have identified and ensure the Council takes account of government guidance when considering appeals in the future; and
• reconsider Ms M’s application for transport.
52. If the Council reverses its decision, it should agree a financial payment with Ms M for the transport she has provided since September 2017, and her time and trouble in doing so and pursuing her complaint. If the Council and Ms M cannot reach an agreement, they can refer the matter to the Ombudsman.
53. The Council accepted my recommendations.

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Final decision

54. The Council accepts my recommendations so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman