London Borough of Bexley (18 008 486)

Category : Education > School transport

Decision : Upheld

Decision date : 16 Jan 2019

The Ombudsman's final decision:

Summary: Ms B complains the Council stopped providing her son with school transport. Ms B also complains the Council did not consider her family’s individual circumstances or supporting evidence during the appeals she made. There was fault in the way the Council considered Ms B’s travel assistance appeal. The Council has agreed to give Ms B a fresh appeal.

The complaint

  1. Ms B complains the Council has stopped providing her son with school transport. Ms B also complains the Council did not consider her family’s individual circumstances or supporting evidence during the appeals.

Back to top

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 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)
  2. 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)

Back to top

How I considered this complaint

  1. I considered:
    • Ms B’s complaint and the information she provided.
    • Documents supplied by the Council.
    • Relevant legislation and guidelines.
    • The Council’s policies and procedures.
    • The Council and Ms B comments on a draft decision.

Back to top

What I found

  1. Councils in England must provide such travel arrangements as it considers necessary to get every eligible child of compulsory school-age to their relevant educational establishment and back home again. Travel arrangements for an eligible child must be free and must not require the parent to incur extra costs (Education Act 1996).
  2. An eligible child is:
    • a child with special educational needs, a disability or mobility problem, who lives within the walking distance but cannot be expected to walk
    • a child who cannot be expected to walk because of the nature of their route
    • a child beyond the walking distance and without suitable alternative arrangements
    • a child aged between eight and ten in a low-income family living more than two miles from their preferred suitable school
    • a child in a low-income family living between two and six miles from their preferred suitable secondary school, or
    • a child in a low-income family living between 2 and 15 miles from a suitable secondary school chosen for religious reasons (Education Act 1996 s.444 (5) and sch.35B).
  3. The local authority may provide travel assistance for children who are not eligible children.
  4. In deciding 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, a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The expectation is 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 (Department of Education 2014 home to school travel and transport guidance).
  5. The Government sets out a recommended appeals process in the Department of Education’s 2014 home to school travel and transport guidance.
  6. Stage one appeal: review by a senior officer.
    • A parent has 20 working days from receipt of the local authority’s decision to write asking for an appeal.
    • The parent’s request should detail why they believe the decision should be reviewed and give details of any personal and/or family circumstances they think should be considered.
    • Within 20 working days of receipt of the parent’s request, a senior officer must review the original decision and send the parent a detailed written notification of the result of their review, setting out: the nature of the decision reached; how the review was conducted (including the standard followed e.g. Road Safety GB21 ); information about other departments and/or agencies consulted; what factors were considered; the rationale for the decision; and information about how the parent can ask for a stage two appeal.
  7. Stage two appeal: review by an independent appeal panel.
    • A parent has 20 working days from receipt of the Councils stage one decision to ask for a stage two appeal.
    • Within 40 working days of the parent’s request, an independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. The panel must give detailed written notification of the result (within 5 working days), setting out: the nature of the decision reached; how the review was conducted; information about other departments and/ or agencies consulted as part of the process; what factors were considered; the rationale for the decision reached; and information about the parent’s right to put the matter to the Local Government Ombudsman.
  8. Statutory guidance sets out what schools and local authorities must do to comply with the law. Guidance must be followed unless there is a very good reason not to.

What happened

  1. Ms B has two children, C and D. C and D attend different schools. D is at primary school and C attends a special school for pupils with learning difficulties. The schools finish at the same time and are around 2 miles apart.
  2. This chronology includes key events in this case and does not cover everything that happened.
  3. The Council transported C from school to his home from September 2015 to July 2018. The Council provided C with travel assistance because Ms B could not collect C and D from different schools at the same time.
  4. In June 2018, Ms B made an application for travel assistance to continue. Ms B explained C has ASD, limited communication and no understanding of danger. Ms B said C could not walk home unsupervised. Ms B told the Council her daughter finishes primary school when C finishes school and it was not possible to collect them at the same time. The Council refused Ms B’s application.
  5. In July 2018, Ms B asked for a stage one appeal. Ms B explained C had accessed home transport since September 2015. Home transport had enabled Ms B to collect D from primary school and meet C at the drop off point. Ms B also expressed concern that a change to C’s routine by withdrawing home transport would cause him unnecessary distress and anxiety. Ms B included C’s care plans, supporting letters from his school and social worker and an email from the Council with the appeal documents.
  6. The school’s letter of support, expressed concern that withdrawing C’s home transport would be harmful to his overall well-being not just his learning.
  7. The social worker’s support letter confirmed C’s needs. The social worker assessed C as not having the ability to travel independently because of his limited communication and having no danger awareness. The social worker asked the Council to reconsider its decision not to provide C with transport assistance.
  8. In August 2018, the Council wrote to Ms B. The Council told Ms B it had not upheld her stage one appeal. The Council said Ms B had not given enough information to suggest the family situation warranted applying exceptional circumstances. Ms B appealed because she could not pick up her two children from different schools at the same time. However, the Council said she appealed because she could not collect her children because of work commitments. Work commitments was not the reason Ms B made a request for travel assistance. The Council stated all working parents were responsible for their children’s school attendance and employees and employers were expected to make reasonable adjustments. There is no evidence the Council considered the impact of C’s individual needs, that Ms B has two children to collect from different schools or the supporting evidence she provided. The Council say it did consider C’s individual needs but did not document conversations formally. The letter gave Ms B information about her appeal rights.
  9. Ms B asked for a stage two appeal. Ms B made the appeal because both her children’s schools finish at the same time and because of C’s needs, both children had to be collected. Ms B explained the Council had provided C home transport for the three previous academic years on these grounds. Ms B included the same documents and information as her stage one appeal. Ms B raised concerns these documents were not considered by the Council within the stage one appeal.
  10. At stage two, an independent panel considered the appeal. The independent panel did not uphold Ms B’s complaint. The panel decided Ms B did not have an exceptional case. There was no reference to Ms B’s specific circumstances in the letter telling her the result of the appeal. There was also no evidence the panel considered C’s individual needs or the supporting evidence provided by Ms B. The Council say it did consider these factors but did not document conversations formally. The Council told Ms B about her appeal rights despite her having already exhausted the appeals process.
  11. At the end of August 2018, Ms B made a formal stage one complaint to the Council.
  12. The Council responded within timescales in September 2018. The Council upheld Ms B’s complaint the timescales for applying for travel assistance were not suitable. The Council invited parents to apply for school transport in June and did process all the applications before schools closed for the summer. These timings prevented parents from contacting schools to make other arrangements before the start of the new academic term if their application was unsuccessful. The Council also upheld Ms B’s complaint that it had referred to C as ‘she’ in a letter.
  13. The Council did not uphold Ms B’s complaints that Council officers were not available during the application process, the Council was more lenient towards families outside statutory walking distance, or the Council did not consider working parents or siblings when deciding about school transport.
  14. The Council wrote to Ms B in November and December 2018. The Council told Ms B, C’s walking distance from school was 0.4 miles and children over 8 are expected to walk 3 miles to get home from school. The Council said some children are eligible for travel assistance even if they do not meet the distance criteria because of their high needs or exceptional circumstances. The Council said Ms B’s information did not suggest C was an exceptional case. The Council provided Ms B with her appeal rights again, despite these being exhausted.
  15. In November 2018, the Council introduced a new letter template to tell parents the result of their transport appeal. The Council say the template will ensure parents are told what evidence was used in decision making and the rationale for its decision.
  16. The Council has arranged engagement events with parents and carers to discuss travel assistance applications and the threshold for provision.

Analysis

  1. Paragraph 7 outlines the information Council’s should give to parents when telling them the result of their stage one appeal. In this case, the Council did not tailor its response to Ms B. The Council did not give Ms B details of how it reached its decision, it did not tell her what evidence was considered or whether other departments were consulted. The Council is at fault for not providing Ms B with a detailed explanation of its decision not to uphold her travel assistance appeals.
  2. Paragraph 10 outlines the recommended stage 2 appeal process. Contrary to government guidance, Ms B was not given the opportunity to make verbal representations to the independent panel. The Council say it is not part of its procedure to invite parents to the independent panel. The Council is at fault for not following statutory recommendations.
  3. The Council was required to provide Ms B with a detailed explanation of the result of her stage two appeal. The Council did not provide Ms B with a tailored response and included information that was no longer relevant to her. The Council is at fault for not following government guidelines (see paragraph 10).
  4. There is no record of the Council considering C’s or the family’s individual needs, or the supporting evidence supplied by Ms B as part of its decision making. This is fault.
  5. It is positive the Council has already taken steps that address faults found in this investigation; see paragraphs 27 and 28.

Agreed action

  1. Within one month of this decision, the Council should:
    • Apologise to Ms B.
    • Arrange a fresh appeal for Ms B following the appeal process set out in the Department of Education’s (2014) home to school travel and transport guidance.
  2. Within two months of this decision, the Council should:
    • Review its policy for travel assistance for children attending school to ensure it is consistent with the Department of Education’s (2014) home to school travel and transport guidance.

Back to top

Final decision

  1. I have completed my investigation and uphold Ms B’s complaint. The Council was at fault for not following government guidance for travel assistance applications and appeals.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page