London Borough of Bexley (18 010 415)

Category : Education > School transport

Decision : Upheld

Decision date : 26 Mar 2019

The Ombudsman's final decision:

Summary: There was fault by the Council and an appeal panel in the way it considered an application for free home to school transport for a child who lives within statutory walking distance but who uses a wheelchair. The Council has now accepted the child is eligible for transport support. Recommendations are made for an apology and financial redress to remedy the inconvenience and distress caused to the family for the period they have been without transport support, as well as recommendations for improvements to the service.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains about the way the Council and a transport appeal panel considered his application for free home to school transport, for his daughter. In particular, Mr X complains that:
    • The Council and appeal panel have failed to consider if his daughter is an ‘eligible’ child taking into account her mobility difficulties and special educational needs
    • The Council and appeal panel have wrongly applied a test of distance, when this is not the appropriate test for a disabled child, and has not assessed needs on an individual basis
    • The Council and appeal panel have wrongly decided his daughter should travel to school in her specialised buggy, when the legal test is an ability to walk independently; this is discriminatory
    • The Council and appeal panel have not taken into account the following relevant factors:
      1. That Mr X works and is not available to accompany his daughter to school
      2. That Mrs X is disabled and receives high rate mobility component disability living allowance (DLA) and cannot walk the distance to school to accompany their daughter
      3. That Mr X’s daughter is in receipt of high rate mobility DLA and cannot physically walk the distance required, being a manual wheelchair user
      4. That requiring Mr X to accompany his child to school instead of providing transport caused loss of earnings and financial hardship
      5. That Mr X has a medical condition which means he cannot push the buggy the 1.9 mile route the Council has suggested using
      6. That the Council’s route is unsuitable for walking with a specialised buggy as it crosses main transport arteries, a railway line and public footbridge and it would be too difficult to push the buggy over the crossing.
      7. That his daughter has asthma, behavioural difficulties and no sense of danger which makes travelling on busy roads unsafe.
      8. That medical professionals and school have provided evidence his daughter cannot walk the distance required.
    • The Council and appeal panel have taken into account irrelevant and incorrect information that Mr X’s daughter has a Motability car, when this is not the case.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  3. 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

  1. I have spoken to Mr X and the Council by telephone.
  2. I have considered information provided by Mr X and the Council including:
    • Application form for transport mileage allowance
    • Appeal forms, evidence and decision letters
    • The Council’s travel assistance policy for 5-16 year olds
    • The Council’s response to my enquiries.
  3. I have also considered the relevant law and guidance; the Ombudsman’s guidance ‘Good Administrative Practice’; and our Focus Report ‘All aboard? Navigating School Transport Issues’ (March 2017).
  4. I have written to Mr X and the Council with my draft decision and considered their comments.
  5. 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.

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What I found

  1. Section 508B of the Education Act 1996 (‘The Act’) says councils must provide free school transport to eligible children. The term 'eligible' means children of compulsory school age who meet certain criteria as set out in Schedule 35B of the Act.
  2. Eligible children fall into four categories:
    • Children with special educational needs (SEN) or a mobility difficulty and cannot reasonably be expected to walk to school where the school is within the statutory walking distance.
    • Children whose route to school is unsafe.
    • Children who live outside the statutory walking distance to school (currently 2 miles of under 8 years and 3 miles if between 8-16 years).
    • Children from low income families (on free school meals or in receipt of maximum working tax credit)
  3. Councils also have discretion under s.508C of the Act to make provision for non-eligible children where they consider it ‘necessary’ to facilitate the child’s attendance at school. A common situation where this may arise is where a child has a disabled parent.
  4. The Government has issued statutory guidance ‘Home to School travel and transport’ for local authorities’ (‘the Guidance’). Councils must have regard to the guidance when carrying out their duties. This means Councils can depart from the guidance, but if they do, they must have a good reason for doing so.
  5. The Guidance says eligibility under SEN / mobility grounds should ‘be assessed on an individual basis to identify their particular travel requirements’ and that statutory walking distance is not relevant for children eligible due to SEN or mobility.
  6. If the child can physically walk the distance but is unsafe to do so, the Council must consider:
      1. whether the child could reasonably be expected to walk if accompanied and, if so,
      2. whether the child’s parent can reasonably be expected to accompany the child.
  1. S.508B applies where no travel arrangements are provided free of charge by any body or person who is not the Council. Examples of arrangements provided by others might include: a parent consenting to use of their car in return for a mileage allowance, a school owned minibus or a free transport pass.
  2. The Guidance says travel arrangements made by a parent must be made voluntarily.
  3. While parents are responsible for ensuring their children attend regularly under s.444(3B) of the Act a parent will have a defence in law against prosecution for non attendance if the council has a duty to make travel arrangements under s.508B and failed to discharge that duty.
  4. The Guidance recommend councils have a two stage appeals process that includes:
      1. Stage one review by a senior officer
      2. Stage two review by an independent appeal panel. Panel members must be independent of the original decision-making process but do not have to be independent of the Council.
      3. A detailed written decision at each stage setting out:
        1. The nature of the decision reached
        2. How the review was conducted
        3. Information about other agencies consulted
        4. What factors were considered and the rationale reached.

The Council’s policy

  1. The Council’s policy (dated May 2018) says: ‘Travel assistance will be provided for pupils living within statutory walking distance of their school who, because of their special educational needs, disability or mobility difficulties, cannot reasonably be expected to walk to school… Where parents/carers with disabilities receive the Mobility Component of Disability Living Allowance (or Personal Independence Payments from June 2013) and/or a car is provided for them under the Motability Scheme, to support the pupil, they will be encouraged to use this to provide transport to school for their child. In such circumstances the Council will consider the payment of an agreed personal travel assistance budget to parents/carers for pupils who would be eligible for travel support from the Council’.
  2. The policy describes a three stage process for considering applications:

Stage 1. Application:

For all applicants (with or without SEN) the parent/carer must complete an online application form and supplementary evidence of the need for travel assistance should be provided at this stage.

Stage 2. Assessment:

This stage will include the evaluation of written evidence and family circumstances. This may include a home visit, consultation with the child’s school / caseworkers and any other relevant specialists. If the application is declined at this stage parents may appeal.

3. Implementation

Where the Council agrees to provide assistance it will decide what type would be suitable and appropriate to meet the needs of the pupil.

The facts

  1. Until July 2018, Mr X’s daughter, who is under the age of 8, travelled to her special school via a minibus provided by the Council. In 2018, Mr X’s daughter changed sites within the same school. The new site was 1.9 miles walking distance from home via a route (provided by the Council) that Mr X says requires crossing major roads and a railway using a pedestrian footbridge.
  2. Mr X says by car the journey to school is 2.3 miles.
  3. Mr X says he was told he had to reapply for school transport. At the time he was not working and so told me he was happy to take his daughter to school in the family car if the Council provided a mileage allowance.
  4. I have seen a copy of Mr X’s Transport Assistance application form dated June 2018. This does not specifically state it is an application for a mileage allowance, but this can be implied as Mr X would not have made an application if he did not want travel support and because the last question on the form asks if the family have previously received a personal budget for fuel.
  5. The form asked:
    • ‘Have you been provided with mobility allowance / a vehicle to transport your child?’
    • ‘Are you (or another adult) able to take your child to school?’

Mr X replied yes to both questions.

  1. Mr X also confirmed his daughter usually travelled using the family car, that the family received child tax credits and had a low income, that his daughter travels in a manual wheelchair and was profoundly disabled and that she could not use public transport.
  2. The form does not direct parents to submit evidence to support their answers.
  3. The Council refused the transport on the basis Mr X lived within the statutory walking distance of 2 miles and he had provided no exceptional reasons why transport support should be provided.
  4. In July 2018 Mr X appealed on the basis his daughter could not walk or use public transport, the walking route would require him to push a heavy special needs buggy over a footbridge and the journey would take 40 minutes each way which was not reasonable. He provided a letter of support from the School confirming his daughter was ‘not a fully mobile child’ and uses a specialised buggy which would need to be brought over the train station pedestrian ramp. The School said when arriving by school transport Mr X’s daughter, who had complex needs, arrived settled and ready for learning but coming by buggy would be a long and arduous journey which carried considerable risk.
  5. The first stage appeal decision letter refused the application on the same grounds of statutory walking distance and no exceptional circumstances.
  6. Internal notes are available from the senior officer making the decision, but the reasoning in the notes differs from what is stated in the decision letter. The notes say: ‘Family is in receipt of mobility allowance for [child] and should make use of this to take their little girl to school’. Decision: appeal declined, family is of course not expected to walk but can use the family’s car. It appears both parents are at home and could alternate?’
  7. The Council did not offer a mileage allowance so Mr X appealed to stage two. His appeal provided new reasoning that his daughter’s health would be put at risk using the suggested route as she has asthma and that she would miss school. He also repeated his previous argument that pushing the heavy buggy over the bridge was not reasonable and dangerous. He stated he was the only person who could take his daughter to school as his wife was disabled and his daughter had complex behaviour problems. He also had medical problems of his own which required him to attend appointments at which times his daughter would be unable to attend school. Mr X provided medical information supporting his daughter had asthma.
  8. Mr X then provided another email to support his appeal which said he had a medical condition and could not push the buggy over the bridge.
  9. The appeal was refused on 4 October, at a paper only hearing, by the Transport Assistance Appeals Panel. The Council says the panel is made up of professionals from education, health and social care. The reasons given were that Mr X did not qualify on statutory walking distance and he had provided no new evidence to support exceptional circumstances.
  10. Mr X then involved his Member of Parliament (MP) and contacted the Ombudsman. When we spoke to Mr X on 11 October he told us he had recently started working. He said while he had originally been willing to drive his daughter to school himself in exchange for a mileage allowance, this was no longer possible. He told us the Council was saying he had a mobility vehicle when this was not true. Mr X gave a similar account to his MP.
  11. The MP asked the Council to look again at Mr X’s case because Mr X believed the two mile rule did not apply to an SEN student and because he did not have a mobility car. The MP provided the Council with a copy of an email from Mr X stating he was working.
  12. The Council told the MP that Mr X had not mentioned his medical appointments on his application form but in any event Mr X lived within the statutory walking distance and he and his wife were expected to get their daughter to school between them. It said 'statutory walking distance of 2 miles for under 8 year old children does not mean that Mr X has to walk with [his child] to get her to her school, he can of course use the motability vehicle which was awarded to …meet her mobility needs when assessed for disability living allowance'.
  13. An internal email from the SEN team asking for the response to the MP to be signed off also stated that Mr X’s reasons for not driving kept changing and that ‘He further advised that the [Council] should consider his potential loss of earnings if he has to take his daughter to school, we do however understand that he is at home with his wife… [Mr X] also explained that he is the only one being able to take his daughter to school as his wife is disabled, but no further evidence was submitted related to this’.
  14. Following receipt of our enquiries the Council told us on 11 January 2019 it had carried out its own internal review after an update to processes and protocols and transport would now be provided to Mr X’s daughter. It said it would write to Mr X and apologise for the inconvenience and offer him a ‘compensatory payment’.
  15. Mr X told us the payment offered just reflected his mileage expenses and not his loss of earnings. He has been working since late September and the period October to December was very busy. Mr X said he had to start work late and leave early to take his daughter to and from school. He said this meant he lost earnings, but also, while he would otherwise have expected to finish work at 4pm, he had to go back out in the evenings to work after helping his wife with their daughter, working until 8.30-9pm at night. Mr X says he could have fitted in extra work each school day as there was more work available.
  16. Mr X told us that it was not just the lost earnings, but the stress that transporting his daughter had on the family. Mr X explained his wife is disabled and he was unable to help his wife, or support her with caring for their daughter each evening, because he had to go back out to work until late. He says this placed a lot of unnecessary strain on the family.
  17. Mr X confirmed while he did receive high rate mobility DLA for his daughter he did not use this for a mobility car as they had a family car.
  18. I asked the Council to respond to my enquiries and respond to Mr X’s view.
  19. The Council’s response did not explain what the recent changes to its processes and protocols were that prompted a different decision.
  20. The Council said it’s financial offer was in line with a fuel allowance under a personal travel assistance budget for the mileage to school and home especially as the Council ‘is aware that the family uses a Motability vehicle for [their child] which has been awarded to her under the DLA mobility scheme’.
  21. The Council told me it ‘was surprised’ Mr X had claimed loss of earnings as ‘he did not advise the LA at any point during the application and appeals process that he was not able to take his daughter to school due to work commitments’ and said it had found Mr X’s account inconsistent.
  22. The Council also said it had asked Mr X at appeal stage for evidence of his wife’s disability and why his wife could not take their daughter to school in their Motability car. It said Mr X had not provided evidence of this or that he was working. He had also not provided medical evidence he could not push the buggy or that he was his wife’s main carer, when this was requested.
  23. The Council said contrary to the wording in its decision letters it had considered Mr X’s daughter’s SEN as well as the statutory walking distance and the family’s circumstances.
  24. Mr X told me the Council never asked him for evidence of his employment, his own medical conditions, or those of his wife, so he did not fail to provide evidence requested. Mr X also said he told the Council when he started working and that this meant he could no longer drive his daughter. Mr X said many of his communications with the Council were by phone. The Council told me its transport team does not keep records of phone calls.
  25. Mr X said that while transport was agreed in early January, when he spoke to the Council’s transport team they told him they were allowed six weeks to put the arrangements in place and he should not ring again, but wait to be contacted. Mr X told me the school bus, which had spare seats, was not re-routed to collect his daughter until after February half term. Mr X said he felt this delay was a deliberate response to him bringing a complaint.

Analysis

Fault

  1. Mr X applied for transport support on SEN / mobility grounds so statutory walking distance rules did not apply. The Council decided the application on the wrong legal basis. This was fault.
  2. The Council failed to carry out an individual assessment of Mr X’s daughter, as required by the Guidance and its own policy. It failed to consult other agencies and failed to consider whether she was an eligible child on SEN / mobility grounds. This is fault.
  3. Mr X’s daughter is profoundly disabled and uses a wheelchair. It is apparent from the information provided by Mr X in the first application and by the school at the first stage appeal that she cannot walk 1.9 miles. She was therefore an eligible child under s.508B and the Council had a duty to provide free home to school transport. It has now accepted this.
  4. While the Council now says it did consider SEN / mobility there is no evidence in to support this. The three decision letters, the letter to the MP and the recent reversal of the decision contradict this position.
  5. The appeal officer and independent panel also refused the application for transport support on the wrong basis of statutory walking distance. This raises concerns about the robustness of the Council’s appeal process and the expertise of those involved in deciding appeals.
  6. Mr X did give a variety of reasons why he considered the Council’s suggestion he accompany his daughter to school using her specialised buggy was unsuitable. Mr X would not have expected to need to provide this information on his application form because he anticipated his daughter would be eligible for transport and, as he had offered to use his own car, this would be simply a matter of consenting to use his car in exchange for a mileage allowance. While the Council’s policy does ask parents to submit supporting evidence, it is not clear from the application form what evidence is required. I am therefore not critical Mr X did not provide supporting evidence at the start.
  7. Mr X did provide some evidence at appeal from the school and to confirm his daughter’s asthma. I have seen no evidence that the Council requested specific evidence from Mr X about his own health conditions, those of his wife or about his employment. In the absence of evidence requests were made, I cannot criticise that Mr X did not provide further evidence.
  8. In any event Mr X’s health conditions had no relevance to the decision the Council had to make, because the assessment required was whether the child could walk or whether a parent would consent to drive her, not whether Mr X was able to push her in a wheelchair or buggy.
  9. While the Council has not provided records of Mr X’s phone calls, I find that when Mr X started work in late September, he did, on the balance of probabilities, tell the Council this. He told the Ombudsman and his MP this information in early October, so I can see no reason why Mr X would not have also told the Council. The internal email referred to above shows the Council knew Mr X was asking for lost earnings in mid-October and so it was aware he said he was working at that time. I have also seen evidence the MP passed on an email from Mr X where he specifically stated he was working. The Council was therefore on notice of this fact.
  10. The Council has now accepted a transport duty although Mr X’s family circumstances have not changed between October and now and there is no new information available.
  11. The Council says Mr X has a Motability car. It has provided no proof of this other than that Mr X stated on the original form that he received a ‘mobility allowance / vehicle’. Mr X repeatedly told the Council he did not have a mobility car. There is no requirement to spend DLA on a Motability car and families can spend this money how they choose. The Council was wrong to allege Mr X was being untruthful about owning a car without evidence to support the mobility allowance was being spent for this purpose.

Injustice

  1. Mr X’s daughter was an eligible child and entitled to free home to school transport from September 2018. Initially the Council could have discharged its duty by paying Mr X a mileage allowance, it declined to do so.
  2. From October Mr X’s work circumstances changed. He was no longer able to transport his daughter and the Council had a duty to make its own transport arrangements. The failure to do so caused injustice to Mr and Mrs X. Mr X had to provide driving support during his work hours, was unable to take on as much work as he would have liked, and his usual routine was considerably disrupted. Mrs X, who herself has high mobility needs, had less support to manage her daughter’s complex needs during weekday evenings when Mr X had to go back out to work. The fault caused significant inconvenience to a family already facing significant challenges.

Agreed action

  1. To remedy the injustice caused to Mr and Mrs X the Council will:

Within 4 weeks of my final decision

    • Apologise to Mr and Mrs X.
    • Refund the mileage costs Mr X incurred from 1 September 2018 until the date that new transport arrangements were in place in line with its mileage policy.
    • Pay Mr and Mrs X £20 per school day from 1 October 2018 until the date that new transport arrangements were in place. This payment is in recognition of the time, inconvenience, loss of opportunity to work, and distress caused to the family as a result of the Council’s fault.

Within eight weeks of my final decision

    • Either provide evidence to the Ombudsman that relevant staff, appeal decision makers and panel members have undergone retraining in the law and guidance relating to school transport since the events complained of, or arrange for such re-training to take place.
    • Ensure decision letters in future set out clearly not just the rationale for the decision, but the evidence gathered and relied upon.
    • Ensure officers are aware of, and follow, the Council’s own policy to consult other agencies and carry out home visits where it is necessary to do so to make a properly informed decision about eligibility on SEN / mobility grounds.
    • Carry out an audit of other transport applications for the 2018/19 school year for children living within statutory walking distance but who have applied on SEN/ mobility grounds where transport has been refused. The Council should check a proper assessment has been carried out in line with the law and the Council’s policy and decision letters have provided detailed reasons addressing SEN/mobility issues. Where errors are identified the Council should contact the families affected, reassess and offer appropriate redress.

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Final decision

  1. There was fault by the Council and an appeal panel in the way it considered an application for transport made under SEN / mobility grounds. I consider the completion of the agreed actions above are a satisfactory remedy for the injustice caused and so have completed my investigation. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman

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