The Ombudsman's final decision:
Summary: Mrs X complained about how the Council considered her application and appeal for her disabled son to receive home to school transport. The Ombudsman finds the Council was at fault because it did not properly consider his disability. To remedy this, the Council has agreed to reconsider the application, apologise and make a time and trouble payment to Mrs X. It has also agreed to review its policy.
- Mrs X complains the Council has failed to properly consider the case for her disabled son, D, to have free school transport.
- She also complains the Council’s policy is discriminatory.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. 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, section 34(3), as amended)
- 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)
- 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)
How I considered this complaint
- As part of my investigation I have:
- considered the complaint and documents provided by Mrs X;
- made enquiries of the Council and considered its response;
- considered the relevant law and statutory guidance;
- considered the Council’s policy;
- sent my draft decision to both parties and invited comments on it; and
- considered comments from both sides received in response to my draft decision.
What I found
- The law (Education Act 1996, section 508B) says councils must provide free home to school transport for ‘eligible’ children. Eligible children are children of compulsory school age who:
- live beyond the statutory walking distance from school. This is three miles for children over eight years old who attend their nearest qualifying school.
- 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. Eligibility for such children should be assessed on an individual basis to identify their particular transport requirements. Usual transport requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to special educational needs and/or disability.
- The statutory guidance says when determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - statutory guidance for local authorities 2014, paragraph 17).
The Council’s policy
- Relevant parts of the Council’s policy are set out below.
- “Transport assistance will only be provided to all pupils of compulsory school age who are in full time attendance in the following circumstances:
- Pupils aged under 8 if they attend the nearest qualifying school and live more than two miles from school.
- Pupils aged 8 and under 16 (except for those from low income families – see below) where they attend the nearest qualifying school and live more than three miles from school.
- “Some children with SEN and/or a disability may, by reason of their SEN and/or disability, be unable to walk even relatively short distances to school. Similarly, children with a mobility problem caused, for example, by a temporary medical condition such as a broken leg, may also be unable to walk to school.
Consideration to the provision of transport for pupils living under the distances outlined above will only be made on the following basis:
- Medical condition of the child”
- “If a pupil has a temporary or enduring medical condition making it impossible to walk to school, then assistance may be provided. Applications for assistance on this basis will need to be supported by appropriate evidence from the medical profession. Evidence required by the Council may include, but may not be restricted to, a letter from the child or young person’s General Practitioner or Consultant or both and must be supplied at no cost to the Council.
If you feel your child may be eligible you need to contact and discuss this with the SEN Team.
Example of a short term medical condition – broken leg.
Example of a long term/permanent medical condition – brittle bone disease.”
The Council’s appeals process
- The Council has a two-stage appeals process. The first stage is a review by the Council’s SEN manager. The second stage is a review hearing before an independent panel.
- The Council’s policy says its stage one and two appeal responses should include the following information:
- Nature of the decision reached.
- How the review was conducted.
- Information about other departments and/or agencies that were consulted as part of the process.
- What factors were considered.
- The rationale for the decision reached.
- Information about appealing the decision to stage 2 or to the Ombudsman.
- D is 11 years old. He has a diagnosis of Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder and Conduct Disorder. He attends a specialist resource within a mainstream school (School H) that is named in his Education, Health and Care Plan (EHCP).
- In March 2018, during discussions about the content of D’s EHCP, the Council wrote to Mrs X saying that transport would not be provided if the nearest suitable school was within three miles from home. Lengthy discussions took place between the Council and Mrs X about this. Mrs X requested a copy of the Council’s school transport policy and was of the view D should qualify for transport assistance. She appealed the Council’s initial decision.
- Mrs X’s application was refused and the reasons given were:
- “The distance from home to School H is 1.4 miles (classed as a safe walking distance) and is under the three mile statutory distance, when transport would be provided.
- There is no expectation within education transport that a child would walk to school unaccompanied.”
The letter also referred to the new school being closer than D’s previous school, and start times differed to that of the school attended by Mrs X’s other child.
- Mrs X appealed this decision and it was considered by the Council’s Appeal’s Committee (“the Committee”) in May 2018. The Council and Mrs X made both oral and written representations to the Committee.
- Within its written submission the Council referred to s324 Education Act 1996 and s37 of the Children and Families Act 2014. These deal with when children should have a EHCP or a Statement. They do not deal with school transport.
- Also included within the statement of case for the Council were details about the cost of transport provision (£40 per day) if the Committee allowed the appeal. It also informed the panel there were 27 other pupils at School H with SEN who could also qualify for transport if the Committee found in D’s favour. The Committee was also told it would cost the Council £53,200 if transport was provided until the child was 18. The minutes show Committee members were verbally directed towards the costs of this case and other potential applicants.
- The Committee rejected the appeal for the following reason:
“While it accepted D could be an eligible child due to his “neurodevelopmental” conditions, there was no good reason why it was not reasonable to expect D to be accompanied by a parent, taking into consideration he was attending a special school rather than mainstream. It would not be unreasonable to expect a child of secondary age to be accompanied and therefore he was not being treated any differently to the other pupils. The statutory guidance states that the general expectation is that a child will be accompanied where necessary, unless there is good reason why it is not reasonable to expect the parent to do so.”
- Mrs X then complained to the Ombudsman.
Grounds for appeal and complaint
- Mrs X has provided a detailed explanation about why she believes the decision, the decision making and the Council’s policy are wrong. Her concerns can be summarised as follows:
The Council applied the wrong test
- Mrs X says the Council should not have rejected her initial application on the basis of distance alone. A different test applies to disabled/SEN children. The decision to be made at all stages was whether D was an eligible child. Mrs X says the Council did not apply itself correctly here, instead asking itself whether it should exercise its discretion and deviate from its policy that transport would not be provided if the distance between home and school fell below three miles.
- And leading on from this, she says the Council should not have considered whether it was reasonable for D to be accompanied if it had already decided D was an eligible child.
The Council’s policy is both incorrect and discriminatory
- Mrs X says the policy is limited to only support pupils with physical disabilities. The examples given are a broken leg and brittle bones. She says it fails to recognise other, often called “hidden disabilities” such as Autism.
- In support of this view, a Council officer told Mrs X by email, “to clarify, it is the Council’s understanding that D does not have physical disabilities preventing him from walking the distance to school and there is no expectation that he walks to school alone”. Mrs X says this was a theme throughout her discussions with Council officers.
An incorrect and discriminatory comparator was used during the Committee’s decision making
- In reaching its decision the Committee agreed with the Council’s argument that it was reasonable to expect a parent of a child with SEN attending a secondary special school to accompany their child to school.
- Mrs X says this was the wrong comparator and was inherently discriminatory towards disabled/SEN children. Instead she says the Committee should have considered whether it was reasonable for a non-SEN/disabled year 7 student to be accompanied on the 1.4 mile journey. She argues that the expectation is for a non-SEN child is to walk that distance on their own.
The decision does not take into consideration journey stress
- Mrs X says there is an expectation that a journey to be deemed suitable, a journey to school should be, “safe and reasonably stress free, to enable the child to arrive at school ready for a day of study” (paragraph 35 of the statutory guidance). She says the Council’s refusal to provide transport fails to take into account the inevitable stress and risk to safety that walking to school would cause.
The Council’s position
- In response to my enquiries the Council said the decision of the Committee was correct and its policy is both lawful and non-discriminatory for the following reasons:
- The Council correctly decided D was able walk to school. The Council did not challenge Mrs X’s view that he needs to be accompanied, but that responsibility lies with his parents. Mrs X did not provide and medical or other evidence to say why this could not happen.
- The examples quoted in the policy are illustrative only and do not render the policy discriminatory. The Council’s policy allows for non-physical disabilities to be recognised and the Committee took these into consideration when reaching its decision.
- The law says it is the duty of a parent to ensure their child is educated. To ensure this duty is met, there is a general expectation that children will be accompanied if by doing so makes the route safe.
- D’s primary school was further away from home than School H and Mrs X was happy to take him to school. Mrs X has said this is incorrect.
- Because the Council decided D was not an “eligible child”, it became irrelevant whether or not Mrs X agreed to accompany D to school.
- In respect of the concern about the incorrect comparator being used the Council says the Committee was aware of the wider context of 11 year old children travelling to school. It also referred to Mrs X not being disabled but made the point that in other cases the Council has exercised its discretion where a parent was disabled. Infact, Mrs X is disabled but she has said this is an irrelevant consideration in relation to this matter.
- No supporting medical evidence was provided by Mrs X about any additional stress that could be caused by having to walk to school.
- Having reviewed the case as a whole, while maintaining its position that there was no fault, the Council agreed to make the following changes to its policy and procedures:
- To increase the illustrative examples to include non-physical disabilities.
- To make decision letters more detailed, including how to complain to the Ombudsman.
- I find the Council did not properly consider this matter in accordance with the law for number of reasons.
The test applied
- By law, the Council has a duty (as opposed to a discretion) to provide transport assistance for eligible children. There is however a discretionary element in reaching this decision which, I suggest, may have caused some confusion here. At all three stages, from first request through both appeals, the Council applied the wrong test. It is clear in the statutory guidance that, “usual transport requirements (e.g. the statutory walking distances) should not be considered”.
- Particularly at the initial refusal and first appeal stage, this distance criteria was a paramount consideration and it should not have been. I have also had sight of numerous emails between Mrs X and Council officers in which she tried to explain the test that should be applied. Time after time the Council, whilst being courteous and professional, maintained its position that distance was the overriding consideration.
- Both the statutory guidance and the Council’s own policy require the Council’s decision letters to include certain information. This is to ensure fairness and so the appellant is clear as to the reasons for the decision.
- In this case the first decision letter did not include any meaningful analysis of the points raised by Mrs X, particularly about D’s SEN related issues. Nor did it make any reference to the law or policy upon which the decision was based. The second decision letter, whilst providing Mrs X with a more detailed analysis of its decision-making rationale, did not include information about what Mrs X should do next if she remained dissatisfied. This is fault. In response to my enquiries the Council has accepted the content of such letters should be improved going forwards. I welcome this.
SEN children who do not have a physical disability
- There is no reference to non-physical disabilities in the policy. The Council says this is only because the examples given happen to be physical. But they are only examples and not intended to be a complete list.
- The policy says transport will be provided if it is “impossible to walk”. This, under any reasonable understanding, is a much higher test than the one set out in the law and guidance. “Impossible to walk” is an entirely different test to “cannot reasonably be expected to walk”. This, combined with the physical disabilities set out as examples, I find on balance, would lead officers and panel members to form the view that unless a child was very seriously physically disabled, then it is possible for them to walk to school.
- This approach is confirmed in the emails I have seen between officers and Mrs X (see paragraph 27 above).
- I am satisfied the Committee did consider D’s SEN related transport needs at the second appeal stage. However, there is no evidence that it was properly considered sooner. It therefore happened too late and, it could be argued, only because of Mrs X’s insistence that it was considered. It should not be the case that it is up to individual applicants to navigate their own way through the law and policy to ascertain what the Council’s duties towards their children are. This is what Mrs X was forced to do because of the deficiencies in the Council’s policy.
- For these reasons, I have found fault in the Council’s policy.
- However, to the Council’s credit, in response to my enquiries it has accepted the examples given should be widened to include non-physical disabilities. I welcome this change.
- Unfortunately though, the Council’s current approach also leads to a concern that other potential applicants may have been similarly affected to D. It is only through Mrs X’s careful studying of the law and policy in this area that she has brought to the attention of a wider audience. The Council has itself identified a number of other students at School H who may have wanted to apply for transport support who live below the statutory walking distance.
- I also find that the Council did not consider the issue of accompaniment properly. I have noted the Council’s policy does not address or mention the issue at all. This concerns me because whether a child can reasonably be accompanied is part of the statutory test that the Council is obliged to consider. Failure to include this in the policy is fault.
- That being said, I accept the Committee did consider this issue because the minutes show Mrs X made it clear that they needed to do so in both her oral and written submissions. The Committee’s view was that it was reasonable to expect an SEN child attending a “special school” to be accompanied. Mrs X says this is discriminatory for the reasons set out at paragraphs 28 and 29 above.
- In order for me to reach a view on this I must look at the test set out in the guidance. The Committee should have considered “a range of factors such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied”. The Council effectively changed this and asked itself a different question – whether it was reasonable to expect an 11 year SEN child, attending a special school to be accompanied?
- I asked the Council to comment specifically on this point but it failed to provide a meaningful answer. It referred to discretion being exercised where parents themselves were disabled which is not relevant here. It also referred to committee members hearing all types of appeal hearings including those of 11 year old non-SEN children, so they would have been “very familiar with the wider context”. This response did not provide a satisfactory answer to my question or the concerns of Mrs X.
- It is not the role of the Ombudsman to decide whether it is reasonable for an 11 year old attending school to be accompanied but this is what the Council should have asked itself. It did not do this. Not following the statutory guidance is fault.
- I do agree with the Council’s position about the manner in which it was obliged to consider the stress of the journey. If Mrs X wanted the Committee to do so, she should have provided medical evidence in support. In response to my draft version of this decision, Mrs X has said this information was infact available to the decision makers.
Information given to the Committee
- I also have concerns about information given to the panel about the implications of awarding transport to other pupils. It is not possible for me to say what, if any, influence this had on the final decision. But it is simply not relevant to whether D was an eligible child or not, and it casts doubt on the fairness of the process and for this reason is fault.
- Fundamental to the poor decision making in this case is the Council’s policy. It is not underpinned by the correct legislation and there is a strong possibility that wrong decisions about eligibility for SEN children may have been made.
- Within its written submission the Council referred to s324 Education Act 1996 and s37 of the Children and Families Act 2014, lifted from the policy. They deal with when children should have a EHCP or its predecessor, a Statement of SEN. They do not deal with school transport. The policy should have referenced the Education Act 1996 section 508B, schedule 35B and associated statutory guidance.
- I asked the Council to reconsider the policy and, having sought legal advice, it was satisfied the policy “complies with all relevant Equalities and other legislation…and draws directly from legislation and statutory guidance”.
- By the very fact the policy leads users to apply the wrong test, as well as not referring to the most relevant legislation (s508B Education Act) inevitably casts doubt over it. This is fault. And it is for this reason that I recommend the Council should review this in light of this decision.
- The Council when deciding whether D was an eligible child should have at that point referred to the law and policy about children with a disability. It should have considered whether D could reasonably be expected to walk if accompanied and whether it was reasonable to expect the parents to do so (paragraphs 5 and 6 above).
- While the Committee did consider the family circumstances, this was in the context of deciding whether exceptional circumstances applied, not whether it had a statutory duty to provide transport because D was an eligible child.
- The law says the Ombudsman cannot question the merits of a decision that is taken properly. As I have found faults in the process the Council followed, it brings into question the Council’s decision. These faults may have affected the outcome of the original decision and the appeal. This does not mean I can say D is an eligible child by virtue of his special educational needs or disability, as that is for the Council to decide. The Council needs to come to a view about whether D can walk the distance to school, either by himself or when accompanied.
- To remedy the fault and injustice identified in this decision, the Council has agreed, within one month of the date of my final decision, to do the following:
- Apologise to Mrs X for the fault I have identified.
- Pay Mrs X £500 in recognition of the time and trouble spent in bring this complaint to both the Council and the Ombudsman. The is above the £250 recommended by Ombudsman to recognise the considerable time and trouble she experienced.
- Reconsider D’s case using the correct criteria and by reference to the correct legislation. Mrs X will be invited to provide any additional evidence to support her application prior to any decision being made.
- If the Council decides to provide transport, it will reimburse Mrs X the reasonable costs of transporting D to and from school since September 2018.
- Review its policy and procedures to ensure the correct criteria are applied in future in similar cases.
- Review the content of decision letters to ensure compliance with the Council’s revised policy.
- Arrange training for both officers and panel members on the revised policy to ensure it is properly understood and applied in future.
- I have found the Council to be at fault when making its decision about eligibility for home to school transport for Mrs X’s disabled son. To remedy this the Council has agreed to reconsider the application, apologise to Mrs X and make a payment to her, review its policy and provide training to relevant officers and panel members.
Investigator's decision on behalf of the Ombudsman