Surrey County Council (18 009 860)
The Ombudsman's final decision:
Summary: The complainant says the Council has failed to provide a suitable school transport service for her son. The Council replied it offered transport in line with its transport policy and cannot use the complainant’s preferred provider because they have failed to meet the Council’s standards. The Ombudsman finds the Council acted without fault in applying its transport policy. However, the Ombudsman finds the Council at fault in handling the preferred taxi provider’s application and in failing to consider the complainant’s needs (and the impact on her son) when offering transport. The Council has agreed to the Ombudsman’s recommended remedy.
The complaint
- The complainant whom I shall refer to as Miss X complains on behalf of her son, Y. Miss X says the Council has failed to properly consider Y’s transport needs resulting in it failing to provide the transport support Y needs. Miss X says this has caused anxiety both to her and Y. Miss X wants the Council to provide transport using her preferred taxi company which says it can still offer the same service she had in a neighbouring area.
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. 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 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
- In considering this complaint I have:
- Spoken with Miss X and read the information provided with her complaint;
- Put enquiries to the Council and studied its responses;
- Researched the relevant law, guidance and Council policy;
- Shared with Miss X and the Council a draft decision and reflected on comments made on that draft decision.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
The law, guidance and Council policy
- Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances. (Education Act 1996 (as amended) s508B and Schedule 35B)
- Councils have discretion to provide transport for children who are not entitled to free transport. They may charge for this transport. (Education Act 1996 (as amended) s508C)
- Councils must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. Councils must provide this transport free of charge.
- The relevant ‘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’.
- ‘Qualifying schools’ include:
- Community, foundation or voluntary schools;
- Community or foundation special schools;
- Non-maintained special schools;
- City technology colleges, academies and free schools;
- an independent school for a child with SEN where the school is named in the EHC Plan/statement or is the nearest of two or more schools named.
- Schedule 35B of the Education Act 1996 defines ‘Eligible children’ as:
- children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16);
- children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
- children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk;
- children entitled to free school meals, or whose parents receive their maximum level of working tax credit if:
- the nearest suitable school is beyond two miles (for children over eight and under 11);
- the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
- the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.
- The Department for Education issued guidance to councils in July 2014 entitled “Home to school travel and transport Statutory Guidance” (the Guidance).
- At paragraph 35 the Guidance says: “For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study”.
- The Guidance says at paragraphs 43 and 44 councils must carry out safeguarding checks and that good practice means councils should ensure those managing school transport have the necessary training. Paragraph 54 says councils should have a complaints and appeal procedure published alongside the council’s travel policy statement.
- The Department for Education issued guidance to councils in January 2015 entitled “Special educational needs and disability code of practice 0 to 25 years” (the SEN Code of Practice).
- Paragraph 9.215 the SEN Code of Practice says: “Transport should only be recorded in EHC Plans in exceptional cases where the child has particular transport needs”.
- Paragraph 9.217 of the SEN Code of Practice says: “Transport costs may be provided as part of a Personal Budget where one is agreed and included in the EHC Plan as part of the special educational provision”
- The Council’s home to school transport policy says the Council will only provide travel support based on the assessed need of the child or young person and not on parental or carer preference. (“Travel Assistance Policy for Children and Young People with an Education Health and Care Plan (EHCP) or a Statement of Special Education Needs” Surrey County Council)
- The Council’s home to school policy says that where a parent or carer cannot accompany their child or get their child to school it will consider:
“Other factors that are likely to significantly impact on the parents’/carers’ ability to meet their responsibilities in getting their child…to their education provider. Evidence will be required and may be gathered from a range of professionals, and appropriate verification”. (“Travel Assistance Policy for Children and Young People with an Education Health and Care Plan (EHCP) or a Statement of Special Education Needs” Surrey County Council)
- To qualify for transport under the policy a child or young person must:
- Be resident in the County of Surrey
- Continue to hold an Education Health and Care Plan (EHC Plan) or Statement of Special Educational needs (Statement).
- Any child or young person who does not have an EHC Plan or Statement may be eligible under the Council’s general transport policy.
What happened
- Y has Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD) and Development Co-ordination Disorder. Before moving to a home within the Council’s area Y had an EHC Plan and received transport to school and home provided by the council in whose area they lived (a neighbouring London Borough). Y’s EHC Plans do not record any agreed school transport and on appeal the Tribunal’s Order did not refer to travel support.
- Y has a dual placement education agreed by a neighbouring London Borough. Y receives his education at two different settings I shall refer to as School Q and School Z. School Q is nearer Y’s home, however, School Z is in central London. Y attends School Z two days a week. Miss X says Y’s course means he needs flexible travel arrangements so he can attend auditions about which he often receives short notice. The Council says School Q did not book all the auditions to which Miss X refers. Some Miss X arranged.
- A taxi company I shall refer to as Taxi Firm A, provided transport for Y when he lived in a neighbouring London Borough. Taxi Firm A used a regular driver who understood Y’s needs. Taxi Firm A offered Miss X a flexible approach and built up a relationship with Y who finds it difficult to manage changes in personnel. Miss X felt happy in placing Y in Taxi Firm A’s care.
- On moving to the Council’s area in June 2018 Miss X approached the Council for a continuation of the travel support she had received from the neighbouring London Borough. The Council recognised it must honour the educational provision agreed by the neighbouring London Borough. The Council agreed to continuing with transport in line with its own transport policy. Under that policy any taxi firm the Council commissions must pass an assessment which includes checks on safeguarding, training and experience in providing services to children with special educational needs.
- Taxi Firm A said it could still offer the same service to Y if the Council approved funding. In June 2018, the Council considered Miss X’s application for travel support under its policy. In response to my enquiries the Council says its travel policy offers the legal right to free transport to the nearest school. The Council recognised Y’s EHC Plan named the dual placements and Y’s right to free transport to School Z subject to the Council applying its transport policy.
Transport to School Q
- The Council says Y lives 1.7 miles from School Q. Therefore, the Council says on applying the statutory rules on free transport Y did not qualify. The Council assessed Y as being able to walk to school if accompanied. The Council noted Miss X had said she could not walk with Y or drive him to school because of an injury she suffered in an accident. In June 2018 the Council decided as a temporary and exceptional arrangement to provide transport to School Q until the end of the summer term (July 2018). The Council says Miss X refused this offer. The Council told Miss X that from September 2018 Y would not be eligible for transport to School Q.
- In August 2018 in preparation for Y’s return to school the Council invited Miss C to provide information about her medical conditions that prevented her accompanying Y to School Q. The Council wanted to review arrangements and consider if it needed to extend the transport offered as an exception to its transport policy. Any transport offered would use one of the Council’s approved taxi firms, I shall refer to as Taxi Firm B. The Council’s transport policy says the Council needs evidence to verify a parent has a medical condition that significantly impacts on their ability to meet their legal duty to get their child to school.
- The Council says Miss X did not and has not provided any supporting evidence of her medical needs. Therefore, strictly applying its policy the Council says Miss X and Y do not qualify for discretionary transport support to School Q. However, the Council says it wanted to work with Miss Y. Therefore, the Council says it exercised its discretionary power to offer free school transport to Y from Y’s new home to School Q Monday to Wednesday. The Council offered support for the rest of Y’s last academic year at primary school using a Council approved provider.
- The Council says Miss X cancelled these arrangements on 19 November 2018. The Council says it held open this arrangement to use the Council’s approved provider. However, as Y does not qualify for school transport it does not have a legal duty to offer the transport and Miss X can refuse it. Since then Miss X has driven Y to School Q when she can.
Transport to School Z
- School Z lies outside the statutory walking distances and therefore the Council says Y qualified for school transport.
- The offer of transport made in June 2018 included Miss X as an escort to School Z, but it did not provide transport for her return from central London. Miss X complained and the Council reviewed the offer. On 9 July 2018, the Council offered an interim agreement for Miss X to act as escort with a return journey home afterwards.
- In September 2018, the Council confirmed its offer for transport to School Z with Miss X as a passenger assistant for the autumn term. The Council believed this would help Y deal with anxieties about the change in transport firm. The Council says it made this offer as an exception to its usual policy having considered the likely impact on Y of the move to the Council’s area and change in taxi provider.
- The Council says in recognising the impact on Y of changes in provider the Council has during the academic year offered ‘meet and greet’ sessions for Y to meet new drivers. The Council hoped these would help allay any fears Y may have. The Council says Miss X refused those offers.
- Miss X wanted the Council to agree to use Taxi Firm A. Miss X had confidence the drivers had all necessary training, safeguarding checks and knew and understood Y’s needs. In her experience Taxi Firm A had given good service, developed a relationship with Y who felt comfortable with their drivers and so she trusted Taxi Firm A. This ensured less stressful journeys to School Z. On days Miss X could not escort Y to School Z due to her ill health she says Y could not attend because she did not trust Taxi Firm B.
- The Council says Miss X has refused the service it offered to School Z. In January 2019 the Council repeated its offer of transport using an approved provider. The Council’s offer meant if Miss X accompanied Y, she would have to arrange her own return transport from School Z. Miss X would also have to arrange to return to School Z later in the day to escort Y home in the approved provider’s taxi.
Complaints about Taxi Firm B
- Miss X says the drivers sent by Taxi Firm B did not understand Y’s needs and could not show they had the necessary training and experience. This led Miss X to lose confidence that Taxi Firm B could meet Y’s needs and ensure his safety and wellbeing. Taxi Firm B had passed the Council’s assessment to be an approved transport provider. Miss X would ask drivers to provide details of their training and experience before she would entrust them with Y’s safety and wellbeing.
- Miss X says Taxi Firm B sent unacceptable drivers including:
- One who could not speak English;
- One who did not like driving children with learning disabilities because they scare him;
- One who felt uncomfortable driving in central London (the site of School Z);
- One whose driving she felt was too fast and erratic;
- Sending four different drivers in a week even though Miss X made it clear Y has difficulties in dealing with strangers and changes;
- Drivers who could not show Miss X their DBS certificate or give details of specialist training making them suitable to drive Y.
- In her complaint Miss X explains Y needs the same driver to help manage his conditions. Taxi Firm B offered two named drivers to help achieve less change, but Miss X said Taxi Firm B should offer Y the same driver as it is part of his needs. The Council says Taxi Firm B changed drivers because Miss X asked for different drivers and to allay the family’s fears. While recognising Y’s need for consistency in having the same driver the Council says it responded to Miss X’s request for changes.
- The Council says it considered offering the services of alternative approved taxi firms but during the academic year from September 2018 there have been three different Council approved providers. None met with Miss X’s approval. The Council offered a ‘meet and greet’ introduction with two drivers from the approved provider which it says Miss X refused to attend.
Using Taxi Firm A
- Miss X has most confidence in Taxi Firm A which she believes gave good service to her and Y. Most important says Miss X, Y is comfortable with the drivers. Miss X believes they understand Y’s needs and offer a flexibility which other firms do not. The Council says it cannot provide transport using any other transport provider than an approved provider.
- The Council said it would consider using Taxi Firm A but only if it passed the Council’s assessment which it failed to do. Taxi Firm A applied again. The Council told Miss X Taxi Firm A had failed to pass the assessment again and had not made any changes to the original application.
- In responding to my enquiries, the Council said it asks transport providers when repeating an application to show changes to their original answers by highlighting the amended text in their amended application. The letter sent to applicants says if they do not highlight changes their applications will not be considered.
- Although it had made changes to the original application, Taxi Firm A did not highlight the changes in its second application. Therefore, the Council refused the application without considering it. At my invitation, the Council reviewed the amended application. The Council says the application is different but on assessing it the Council could not approve the application. Therefore, the Council could not offer transport using Taxi Firm A.
- The Council says if Taxi Firm A succeeded in applying to become an approved transport provider that does not mean it would automatically become Y’s provider. The Council must follow its transport policy by offering a contract for tender. Therefore, unless it could agree an exception to its policy it could not guarantee it would award Taxi Firm A the contract to transport Y. To help Miss X achieve her goal of using Taxi Firm A it considered offering support through a direct payment arrangement.
Offer of direct payments
- The direct payment of £30 per day offered by the Council Miss X says is not enough to fund the same service offered by Taxi Firm B using Taxi Firm A. The Council says its transport policy places a limit of £5,000 per year on direct payments. However, while this direct payment arrangement slightly exceeds that it is willing to make an exception to meet Y’s needs and Miss X’s preference. The Council cannot offer more because it must comply with its transport policy. The Council says if it offered the daily cost charged by Taxi Firm A that would exceed its limit which is unfair to other parents looking for support.
- In responding to my enquiries, the Council says it has offered the following transport support to Miss X:
- A fuel re-imbursement of £30.51 per day offered in September 2018 (approved as an exception to the policy recently introduced limiting payments to £5,000 per year because the Council offered the payment under the previous policy);
- Transport using a Council approved transport provider to and from School Q Monday to Wednesday as an exception to its usual policy for the full academic year;
- Transport using a Council approved transport provider to and from School Z on Thursday and Fridays to meet Y’s right to free transport to School Z again for the full academic year.
- The Council says in offering Y travel support through a Council approved taxi provider or by providing a travel allowance the Council met its legal duty. It says this provision has been available since August 2018 and Miss X has on occasion turned away taxis on the day or refused provision.
- The Council says it has often responded positively to late ad-hoc requests for travel assistance from Miss X to cover difficulties she has faced or Y’s need to attend an audition. Miss X says she gives as much notice as she can but sometimes needs a flexible approach. Miss X found she could do this through direct contact with Taxi Firm A whereas the Council’s approved provider is less flexible.
- Miss X says that through the lack of a service with which she feels she can engage Y has had to miss school. The Council says records show Y’s attendance is satisfactory.
Analysis – has there been fault leading to an injustice
- My role is to decide whether the Council has properly considered all relevant information when deciding Y’s right to free school transport and how best to provide that transport. I must decide if the Council offered transport having considered Y’s needs, the law, national guidance and the Council’s home to school transport policy.
- The Council has shown it assessed Y as being able to walk to school if accompanied. Therefore, the Council decided Y did not qualify for transport to school Q. Miss X did not challenge that decision by providing evidence to show he could not make the journey when accompanied. The Council recognised Miss X had difficulty getting him there and made a temporary arrangement for the final part of the summer term 2018 which Miss X rejected. I find the Council acted without fault in offering temporary discretionary help under its transport policy in June 2018.
- Before Y returned to school in September 2018 the Council considered whether he may need further help under its discretionary transport policy to travel to School Q. It asked Miss X for evidence of her medical condition and how it affected her ability to get Y to school. Miss X did not provide evidence. The Council offered school transport to School Q as an exception to its policy exercising its discretion for the academic year. I find the Council acted without fault in applying its policy. Miss X had the right to refuse the discretionary transport and in November 2018 she did.
- The Council accepts Y qualifies for free school transport to School Z and that it must provide that transport. It offered transport using approved transport providers in line with its own transport policy. I find the Council met its legal duty to offer transport to School Z.
- Knowing Miss X had difficulty accompanying Y to school in the summer of 2018 the Council changed its offer of transport to School Z. The Council included Miss X not only as Y’s travel assistant but also agreed to return Miss X home afterwards. The Council at first only included transport to and from School Z. That left Miss X a long way from home on two days a week. Miss X had then to decide either to spend the day away from home until the return journey with Y or return home and then travel back to School Z for the return journey. The Council has not shown it considered the likely impact on Miss X of spending two days a week in this way when offering this arrangement. I find the Council at fault for not considering the likely impact on Miss X’s ability to accompany Y on his journeys to School Z posed by its original refusal to include a return journey for her. This would reduce Y’s support and likely make his journey more stressful.
- The Council must under its policy use approved travel providers. Taxi Firm A did not pass the assessment therefore the Council could not use Miss X’s preferred service. When Taxi Firm A presented a second repeat application the Council wrongly said it had not made changes to that application. On review the application did contain changes. While the Council followed its usual practice of rejecting any application that did not show changes by highlighting them in the text, the Council did not consider an exception to that rule. It should. The Council knew why Taxi Firm A had made this application and should have considered it earlier. I find the Council at fault for not exercising discretion to consider the application despite the lack of highlighted text. However, Taxi Firm A’s amended application did not pass the Council’s assessment. So, while this fault caused frustration, time and inconvenience to Miss X in challenging Taxi Firm A it did not make a difference to the Council’s decision on whether to approve Taxi Firm A.
- When a parent complains about the services offered by an approved provider the Council must investigate those complaints. It should call on the provider to show what it has done to put any allegations to a driver and confirm the driver’s training and safeguarding checks. Approved providers should be held to account by the Council. Miss X’s complaints about the drivers offered to transport Y raised serious issues. The Council investigated them and ensured its approved provider offered alternative drivers. Recognising the impact of changes on Y it also arranged for ‘meet and greet’ sessions to help Miss X and Y become acquainted and comfortable with those drivers. I cannot say what happened on the journeys about which Miss X complained. Her account of the incidents, describe events that would not ensure a reasonably stress-free journey to school for Y. I find the Council acted without fault in investigating complaints against drivers offered by its approved provider and in offering alternatives. However, I also find the allegations on the balance of probabilities show Y did not always have a reasonably stress-free journey when using the service provided.
- To help Miss X achieve her aim of using Taxi Firm A which the Council could not approve, it considered offering Miss X a direct payment to help her cover the costs of the provision. In offering a payment the Council applied the limit in its transport policy and exercised discretion to allow it to exceed the limit by a small sum. The Council balanced Miss X’s preference and fairness to other parents when applying its transport policy. I find the Council acted without fault in applying its transport policy on direct payments for fuel allowances.
- The Council must provide free transport for Y to School Z. The Council is not under a duty to provide a service using Taxi Firm A or to meet its charges. It offered an alternative service to meet its legal duty using an approved provider. It considered ways of helping Miss X achieve her goal of using her preferred transport provider. I find the Council acted without fault in considering alternative ways to meet Miss X’s preference for a transport provider within its transport policy.
- In failing to recognise Miss X’s own needs when accompanying Y to School Z the Council put her to time and inconvenience resulting in stress both for her and Y.
- The failure to consider the amended application from Taxi Firm A and telling Miss X Taxi Firm A had not changed the application put Miss X to avoidable time and inconvenience in taking this up with Taxi Firm A. It told her it had made changes and Miss X had then to put this to the Council again. Considering the repeated application when the Council received it would have prevented this confusion.
- I have considered the Council’s willingness to consider exceptions to its travel policy and the exercise of its discretion before deciding what remedy to recommend.
Recommended and agreed action
- To remedy the injustice arising from the faults I have found the Council agrees my recommendation that the Council within one month of my final decision:
- Apologises to Miss X for the faults;
- Pays Miss X £100 in recognition of the inconvenience and distress the faults caused.
Final decision
- In completing my investigation, I find the Council at fault for which a remedy has been recommended.
Investigator's decision on behalf of the Ombudsman