Decision : Closed after initial enquiries
Decision date : 20 Sep 2018
The Ombudsman's final decision:
Summary: Ms X complains the Council has incorrectly taken the statutory walking distance and failed to consider her son’s (Y) individual needs when it refused school transport for him. The Ombudsman will not investigate this complaint. This is because we have not seen any evidence of fault in the process the Council followed before making its decision.
- Ms X complains the Council has taken the statutory walking distance into account and failed to consider her son’s needs when refusing her application for school transport for him.
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)
How I considered this complaint
- I considered:
- The information provided by Ms X
- The Council’s responses to her review requests and appeal
- The statutory guidance
- The Council’s school transport policy
Ms X commented on the draft version of this decision.
What I found
- The legal requirements relating to transport to school and for children with Special Educational Needs (SEN) and disabilities are set out in section 508B and Schedule 35B of the Education Act 1996. The Council has to consider this in a slightly different way to other applications. Schedule 35B, paragraph 2 states:
“A child falls within this paragraph if –
(a) he is of compulsory school age and is any of the following —
- a child with special educational needs;
- a disabled child;
- a child with mobility problems
(b) he is a registered pupil at a qualifying school which is within walking distance of his home,
(c) no suitable arrangements have been made by the local education authority for enabling him to become a registered pupil at a qualifying school nearer to his home, and,
(d) having regard to whichever of the following are relevant (i) his special educational needs; (ii) his disability; (iii) his mobility problems, he cannot reasonably be expected to walk to the school mentioned in paragraph (b).”
- Y has speech and language needs, and inappropriate behaviours. He also has a soiling issue for which he wears pads. Ms X receives the lower rate disability allowance for Y. He has autistic spectrum disorder. He is an eligible child under Schedule 35B, paragraph 2 (b), as he lives within statutory walking distance of the school (0.5 miles away from his home address).
- Statutory guidance on ‘home to school travel and transport’ (2014) reminds Councils that ‘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 SEN and/or disability’. The guidance continues that ‘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.’
- Y is transferring from primary school to secondary school. Ms X says she was told that school transport would not be a problem so she chose to send him to school ‘A’ even though it was not her first choice.
- The Council refused her application saying there was nothing in Y’s Educational, Health and Social Care Plan (ECHP) which indicated he has additional physical needs to prevent him walking. The Council confirmed it noted she has a younger child to get to nursery. But it considered it was a short distance, 0.5 miles and she has the use of a car.
- Ms X appealed saying the Council has not considered her son’s lack of danger awareness and may run out into the road without warning.
- The Council reviewed her application. It says it considered the distance, mode of travel available, the journey times, Y’s EHCP and the contents of her application and appeal forms. It decided that, owing to the short walking distance, the route and Y’s physical capabilities, he can complete the journey on foot accompanied as necessary.
- Ms X appealed again. The Council held an appeal panel which she attended. The panel considered:
- The home to school route
- Y’s needs as set out in his EHCP
- The statutory guidance on home to school transport for children with SEN and the Council’s own policy
- Ms X’s parental commitments for other children.
- It was not possible for her to get Y to school and her daughter to nursery on time
- Y was not safe walking to school as he may step into traffic
- There is no one else available to accompany him to school
- The Council has followed its published review and appeals procedure. It has considered the information provided and come to an informed decision. I understand that Mrs X disagrees with the decision. But where there is no administrative fault in the process I cannot find fault in the decision.
- I will not investigate this complaint. This is because I have not seen evidence of fault in the way the Council considered her application, reviews and appeal for school transport.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman