London Borough of Bexley (18 010 993)

Category : Education > School transport

Decision : Upheld

Decision date : 21 Feb 2019

The Ombudsman's final decision:

Summary: There was fault in the way a Council and appeal panel considered an application for home to school transport support for a pupil with special educational needs, disabilities and mobility difficulties. The fault casts doubt on the decisions reached. The Council will carry out a reassessment of need, issue a fresh decision and make a financial payment for the complainant’s time and trouble. The Council will also review its procedures, training and carry out an audit to check if there has been fault in similar applications for transport support.

The complaint

  1. The complainant, whom I shall refer to as Ms X, complains the Council and a transport appeal panel failed to properly consider her application and appeal for free home to school transport for her son, whom I shall refer to as Z. In particular, Ms X complains the Council has wrongly assessed Z’s eligibility on the basis of the distance he lives from school and not on the basis of his special educational needs (SEN) and disabilities.

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The Ombudsman’s role and powers

  1. 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)
  2. Independent appeal panels must follow the law when considering an appeal. The Ombudsman does not question the merits of decisions properly taken. An independent panel is entitled to come to its own judgment about the evidence it hears.
  3. 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)
  4. 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 considered information provided by Ms X and the Council including:
    • Information provided by Ms X by telephone
    • The transport application
    • Ms X’s appeals
    • The Council’s decision letters with respect to the first and second appeal
    • A further letter provided after Ms X submitted evidence of Z sustaining an accident on his journey to school
    • Z’s Education, Health and Care (EHC) Plans
    • The Council’s policies:
      1. SEND (special educational needs and disability) Travel Assistance policy 2018/19
      2. Policy for Travel Assistance for Children Attending School
  2. 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).
  3. The following evidence has not been provided by the Council as part of my investigation:
    • Notes or analysis / rationale of the original decision maker or a written decision on the transport application
    • Notes of any individual assessment of Z’s ability to travel to school, home visits or consultations with school / other agencies
    • Notes or analysis / rationale or any minutes from the appeals.
  4. 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. Eligible children include:
    • Those 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 who have special educational needs (SEN) or are disabled or have mobility problems and cannot reasonably be expected to walk to school where the school is within the statutory walking distance.
  2. Councils and appeal panels 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.
  3. 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.
  4. The Guidance says:
    • Eligibility under SEN / mobility grounds must be assessed on an individual basis to identify the child’s particular travel requirements. Usual travel requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to SEN or mobility.
    • In determining 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:
      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.
    • When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.
    • 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.
    • Local authorities [LA’s] should have in place both complaints and appeals procedures for parents to follow should they have cause for complaint about the service, or wish to appeal about the eligibility of their child for travel support. In the interests of consistency and to be both clearer and more transparent, for both parents and local authorities, the Government set out a recommended two stage review/appeals process for Councils to follow.
    • Stage one of the recommended appeal process is a review by a senior officer who provides a ‘detailed written decision’ setting out:
      1. The nature of the decision reached
      2. How the review was conducted
      3. Information about other agencies consulted as part of the review
      4. What factors were considered and the rationale reached.
    • Stage two of the recommended appeal process is review by an independent appeal panel which considers written and verbal representations from both the parent and the officers involved and again provides a detailed written decision. Panel members must be independent of the original decision-making process but do not have to be independent of the Council.

The Council’s Travel Assistance policies

  1. The Council’s policies state that it will provide transport support where a child who, because of SEN / mobility, cannot reasonably be expected to walk to a school within statutory walking distance:

‘In considering whether a pupil cannot reasonably be expected to walk to school, the Council will consider whether the pupil can walk to school on their own or with someone to accompany them… the Council expects parents to either accompany a child to school themselves or to make arrangements for another adult to accompany their child. Wherever possible the Council expects parents/carers of children to make arrangements for their child to attend school in the same way as for parents/carers of pupils without a Statement, EHC Plan or disabilities, as this is an important factor in developing the pupil’s independence, social and life skills’.

  1. The policies also state:

‘The local authority is under a duty to make reasonable adjustments if the usual application of this transport policy places a disabled person at a substantial disadvantage in comparison with persons who are not disabled… A disabled pupil may need reasonable adjustments to be made to the kind of transport that is provided. In such cases, a parent/carer/ pupil will be required to provide medical or other supporting evidence with their application’.

  1. The policies say the Council will not take into account personal circumstances such as parents/ carers attending work, taking other pupils into other schools or looking after other children. This part of the policy is contradicted by information on the Council’s website which says it may offer transport support if required to ensure another child in the family could attend school.
  2. The 2018/19 SEND policy also provides for ‘discretionary and exceptional transport assistance’ where parents/carers feel there are exceptional circumstances. The policy says exceptional needs might include, but are not limited to:

‘Health needs/disability/circumstances affecting the pupil's sibling(s) or other close family members who are dependent upon the pupil's parents/carers; or other factors that are likely to significantly impact on the parents/carers ability to meet their responsibilities in connection with transporting their child to an education provider. Bexley Council will require appropriate verification of any information which is materially relevant to its decision.

If travel assistance is agreed based on exceptional need, the decision will be reviewed termly or at other intervals as specified by Bexley Council. Parents/carers will be expected to provide updated information if requested, and if this is not provided, Bexley Council reserves the right to withdraw the travel assistance’.

  1. The Council’s website provides a summary of the policy which is inaccurate as it states that only children with SEN / mobility needs who live further than statutory walking distance from school are entitled to school transport.
  2. The Council’s Policy for Travel Assistance for Children Attending School describes a three stage process:

1. Application:

    • The Council will undertake an initial assessment of travel requirements based on the proposed school placement. Where this indicates a child will not be eligible for assistance parents will be advised and will have a right of appeal against this decision.
    • For all applicants with or without an Education, Health and Care (EHC) plan the parent must make a formal application for travel support and provide supplementary evidence of the child’s need for support. An initial evaluation will determine whether assistance is likely to be approved, declined or where further assessment is required.

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 caseworkers / school 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.
  1. The Council reviews eligibility for travel support at least annually and for pupils with an EHC plan it will be discussed at their annual review.
  2. The Council’s policies provide for a two stage appeal process by a senior officer (Head of SEN) and independent panel. The independent panel will consider all the evidence gathered and the reasons for the decision being made.

The facts

  1. Z lives within statutory walking distance of his school. This means if he did not have SEN, a disability or mobility problems he would not be entitled to free home to school transport.
  2. Z does have SEN and disabilities as he has autism and dyspraxia. He is hypermobile and Ms Z says he frequently trips over. Z also has high levels of anxiety particularly around crowds and noise. The Council maintains an EHC Plan for Z. Z attends a special school.
  3. When Z started attending the special school his attendance was poor. He had to travel to school by public buses and Ms X and Z’s School say the anxiety made him sick and he often refused to go to school. Documents from an annual review in July 2017 show his attendance had fallen to 75.6% at that stage and the Education Welfare Officer (EWO) became involved.
  4. After a chance meeting with a member of the Council’s transport team when Z was struggling with the journey to school, the Council offered him a place in a taxi, but when a place wasn’t available, the Officer organised a new pick up point near Z’s home so he could use the school bus.
  5. Ms X says Z’s attendance improved. This is confirmed by his teacher in his 2018 annual review. Under a section headed ‘what’s working’ at the review it is recorded that school transport had helped Z’s anxiety, refusal and sickness about school and his attendance.
  6. The Head Teacher provided a specific comment about transport in their report at annual review:

‘Z previously presented with high levels of anxiety due to having to travel using public transport. His attendance dropped below 50% as a result of him refusing to go to school or him being physically sick due to his anxiety. We all feel that continuing transport is in the best interests of Z’.

  1. Ms X says the Council then decided Z needed to attend a different provision from September 2018. Ms X says the Council assured her that Z would still receive free transport (although this provision was within statutory walking distance of their home) but that she had to reapply as it was a new placement.
  2. Ms X applied in May 2018 and stated on her application:
    • Z has autism and needs routine
    • He suffers from anxiety and when transport was taken away his education suffered as he was physically sick
    • Z panics on public transport and can’t cope
    • He would need to get two buses to school
    • Z suffers from dyspraxia and hypermobility so could not walk the distance required
    • There is no adult available to accompany Z. Ms X’s partner works and she cares for another younger child who is also being assessed for autism, has mobility problems and is under the care of a physiotherapist as he can’t walk far. It would be too hard to take both children to school and back.
  3. The Council refused to provide transport. There is no information from the original decision maker available to me, but the information from the appeal indicates the grounds for refusal was that as Z lived only 1.3 miles from school he did not meet the criteria for travel support on distance grounds and it was Ms X’s responsibility to ensure Z attended regularly.
  4. Ms X appealed. I have not seen a copy of her first appeal. Although the Council provided me with documents labelled ‘stage one appeal evidence’ these postdate the outcome of the appeal and so must relate to the stage two process.
  5. The Council acknowledged the appeal on 13 June 2018 and replied on 10 July. The first stage appeal decision letter simply states the Head of the SEN service had not approved the request for travel assistance on the grounds of ‘Distance’ and that there was not sufficient evidence to support that Z should be provided with travel assistance.
  6. The letter confusingly referred to there being a two stage appeal process, although as this was the reply to the stage one appeal, only information about stage two was required.
  7. Ms X appealed to stage two on 17 July. She said it was the Council who had wanted Z to move schools and she had been assured he would continue to receive transport. She explained Z would need to take two buses and this caused him anxiety and made him sick, this had occurred multiple times and affected his school attendance. Ms X referred to the Council officer observing Z in October 2017 and agreeing he required transport support. Ms X said due to hypermobility and dyspraxia Z could not walk the distance to school as he falls over multiple times a day. Ms X enclosed medical evidence supporting that Z’s sibling had global developmental delay (GDD) and social communication difficulties. She said she had submitted this evidence previously. Ms X also provided a supporting letter from Z’s school dated 13 July 2018. The letter from school referred to Z having a history of being sick on public transport due to the unpredictability of the environment, that Ms X was concerned about the impact on Z’s attendance and to the School’s view Z was not ready to travel independently or by public transport.
  8. In August 2018 Ms X’s Member of Parliament (MP) intervened on Ms X’s behalf. The Council told the MP that transport had been refused as Z was no longer eligible under distance criteria. The Council acknowledged Z’s previous attendance issues and said this had been addressed with support from the EWO, but even with travel assistance, Z’s attendance issues continued and had dropped to 90.6%. The Council said Ms X referred in her appeal letter to Z having mobility issues but the stage one was not upheld and the stage two had been received with no additional evidence or particular circumstances that would warrant a valid exception. The Officer said there was no evidence from medical professionals that Z had motion sickness or his anxiety may be triggering that he was sick due to public transport. While Ms X had another child to look after this was not a reason to justify exceptional circumstances. The Council said it recognised Ms X may struggle with Z’s behaviour on public transport and it would offer EWO support for one week to accompany Z on his journey and provide Ms X with advice on strategies to manage Z’s behaviour.
  9. Ms X replied that she had not complained of Z having motion sickness, his difficulty was anxiety, being overwhelmed and feeling trapped and she did not see how one week with the EWO would help.
  10. The Council acknowledged receipt of the stage two appeal on 19 July and responded on 5 September declining the appeal due to: ‘Distance: The panel agreed that there was no new supporting information that suggested that the exceptional circumstance should be applied. Therefore the decision was not overturned. Z lives 1.3 miles from home to school and therefore does not meet the criteria…the Council is not judging your child’s capacity to travel alone…[the] policy is clear that it is a parent / carer’s responsibility to ensure that children attend school regularly. This includes arranging any necessary transport…and / or accompanying a child as necessary when there is no entitlement to travel assistance’.
  11. The appeal letter said this was the last stage of the appeal process and correctly signposted Ms X to the Ombudsman.
  12. Ms X wrote to the Council again on 7 October 2018 after Z had sustained an injury falling over on 27 September requiring surgery. She said she did not agree with the Council and appeal panel’s decisions. Ms X said:
    • Z had been refused transport on distance grounds but distance did not apply to a child with SEN or disabilities.
    • She believed the Council should carry out an individual assessment whether Z could reasonably be expected to walk to school
    • Ms X quoted the Act and Guidance.
    • Ms X said Z’s dyspraxia and hypermobility led to frequent falls and his accident would not have happened if he had still been travelling on the school bus and she felt he needed to go back on transport.
  13. The Council responded on 6 December with a further letter stating that Ms X’s request had gone to the travel assistance panel but not been approved as he did not meet the criteria for the following reason:

‘Distance: Travel Assistance criteria for home to school walking distance is 2 miles for children aged under 8 and 3 miles for children aged over 8. From your application the walking distance is 1.3 miles. Some children are assessed as being eligible to receive travel assistance even if they do not meet distance criteria due to their high needs or if there are exceptional circumstances. However, your application did not contain sufficient information or evidence to indicate an exceptional case. If you have additional information, please supply this within your appeal’.

  1. The letter confusingly then went on to set out the two stage process for transport appeals, although Ms X’s case had already exhausted this process, the Council had referred to the appeal decision in its letter and the complaint was already under consideration by us.

Ombudsman enquiries

  1. The Council told me in response to my enquiries that:
    • Z was expected to travel to school with an adult to support him
    • It was confident robust and informed decision making had applied throughout the process
    • The Council had taken into account Z’s anxiety on public transport during the assessment process and offered Ms X support with strategies when travelling with Z which Ms X had declined
    • Z’s minor accident could have happened to any child and it has not seen evidence this was due to his dyspraxia, indeed children with dyspraxia are encouraged to be active to manage their condition
    • It apologises that decision letters focussed on distance alone ‘this is not accurate and as stated above the LA has taken Z’s SEN into consideration’
    • The offer of EWO support remained open
    • ‘The LA has also taken into consideration that Ms X states that she has another, younger child with disability, must however highlight that no disability has been confirmed and the younger sibling is only in the early stages of being investigated for a developmental delay, this does not mean he has special educational needs or a disability. The LA will of course monitor this and speak to other agencies as and when required to establish to younger sibling’s support needs’.
    • The second stage appeal was heard by three panel members: one from the NHS and two Heads of Service from different departments within the Council
    • The appeal did not hear verbal evidence because: ‘It is currently not Bexley’s policy that appeal panels are attended by parents/carers, written evidence and any newly submitted evidence is looked at and reviewed by a multi-agency panel consisting of senior members of staff, enabling informed decision making’.
    • It’s assessment always take into consideration route planning, bus connections and the abilities and needs of the pupil and this is ‘part of the assessment undertaken by the travel assistance commissioning team that deals with the application for travel assistance’.
    • It ‘uses all available evidence to assess Z as well as any other young people’s eligibility to receive travel assistance and/or to establish whether the young person can reasonably be expected to walk, accompanied as necessary, given their additional needs and what is known of these needs. This includes submissions from the applicant as well as information held on the child’s SEN file’.

Analysis of Ms X’s complaint

Fault

  1. The original decision and the two appeal decisions of July and September 2018 were decided on the basis of statutory walking distance. This was the wrong legal basis as Z has SEN, disabilities and mobility problems. The Guidance is clear that usual travel requirements such as statutory walking distance should not be considered when assessing SEN/ disability eligibility. This was fault. The Council needed to assess Z on an individual basis to identify his particular difficulties and transport requirements.
  2. While the Council now says that it had always taken into consideration Z’s SEN / disability / mobility needs, that it’s transport commissioning team had done an individual assessment, and the decision letters were simply inaccurate, there is no evidence to support this. There are no notes from officers or minutes from the appeal panel to show that Z’s needs were properly considered. The Council has also been unable to provide me with an individual assessment of Z’s difficulties. There is no evidence other agencies or departments were consulted. The decision letters make no reference to any of Z’s difficulties or to the evidence considered, nor do they provide any rationale as to why Z did not meet the legal test under s.508B.
  3. The decision makers and appeal panel had to set out clearly why they considered Z did not have the problems associated with his SEN and mobility difficulties that Ms X and the School said he did. The original officer, Senor Officer at Stage One and Appeal Panel at Stage Two all failed to do so. This is fault.
  4. As the Council did not explain its findings, Ms X was unable to address them in her appeal. This is an injustice. Under the rules of natural justice people are entitled to a fair hearing, this means having prior notice of the case against them, having a fair opportunity to answer it, and the opportunity to present their case. Ms X could not challenge the Council’s reasoning when she did not know what it was.
  5. The email to the MP and the decision letters refer to Ms X not providing sufficient evidence of an exceptional case. This appears to be a misunderstanding of the law and the Council’s own policy. The Council first had to decide whether Z was an eligible child under Schedule 35B. That was a test of reasonableness, not exceptionality. The question for the Council and appeal panel was:
    • Is it reasonable to expect Z to walk? This required consideration of school and medical evidence about his difficulties and perhaps a face to face assessment / home visit.
    • If he could physically walk the distance was it unsafe for him to do so if unaccompanied, but it could be made safe if he were accompanied?
    • If so, could Z’s parents reasonably be expected to accompany him or was there was a ‘good’ (not exceptional) reason not to. The Council (and appeal panel) needed to take into account a ‘range of factors’ including Z’s age and whether one would ordinarily expect a child of that age to be accompanied.
  6. If, after proper assessment of Z’s SEN and disabilities / mobility problems the Council had found that he was not eligible then, under the Council’s policy and s.508C of the Act, the Council, or the appeal panel, still had discretion to decide that it would provide transport. The Council’s policy explains the sort of exceptional circumstances when it may provide support to a child who was not automatically eligible under s.508B. It is the s.508C scenario where parents will need to show an exceptional reason why support is required to facilitate school attendance.
  7. Ms X did not need to provide proof of exceptional circumstances or medical evidence of Z’s anxiety and sickness for him to be considered under s.508B. The Guidance is clear that when an applicant relies on SEN/disability/mobility grounds that the onus is the Council to undertake an individual assessment of the child’s difficulties and to gather the relevant information to decide if the child is an ‘eligible child’. The Guidance refers to decision letters setting out which other agencies or departments have been consulted by the Council. Councils can also do a face to face assessment.
  8. In its response to my draft decision the Council says it is not of the view the onus of gathering evidence should be on the Council but should remain with the applicant. It also says it takes into account information in the EHC plan which did not support Z was an eligible child for transport.
  9. I disagree with this view for applications under s.508B. The Guidance is clear that for applications on SEN/mobility grounds the onus is on the Council to carry out an ‘individual assessment’ and to gather evidence. EHC plans often do not refer to transport needs so councils cannot rely solely on descriptions in EHC plans when carrying out the required ‘individual assessment’. The Council’s own policy states the correct procedure as it says ‘This stage will include the evaluation of written evidence and family circumstances. This may include a home visit, consultation with the child’s caseworkers / school and any other relevant specialists’. The Officers here did not follow their own policy. They did not consult with school, caseworkers or specialists or do a home visit. This was fault.
  10. The onus on providing evidence shifts to the applicant when they are putting forward reasons for discretionary support under s.508C, but even then councils should be mindful that some parents and carers may require assistance or reasonable adjustments to be made.
  11. The Council’s response to the MP indicated it had considered Z’s SEN during the original decision and first appeal, but I have found this was not the case.
  12. The response to the MP did for the first time indicate the Council’s views on SEN/disability/mobility eligibility however this was not a decision letter and did not carry appeal rights. The Council dismissed Z’s travel difficulties on the basis Ms X had not provided medical evidence to support anxiety causing sickness or motion sickness. This was fault. Z did not have motion sickness and it was for the Council to have sought evidence as part of its assessment if it did not accept Ms X’s and the School’s evidence about his travel anxiety.
  13. The Council also told the MP that having a sibling was not an exceptional reason to provide transport, but the Council failed to address Ms X’s concerns and evidence about travelling with two disabled children although this was relevant to the reasonableness of her being expected to accompany Z to school (s.508B) and to whether discretionary support (under s.508C) was necessary.
  14. The Council did however then make an offer of EWO support. I find EWO support for behavioural difficulties was not appropriate as Z did not exhibit difficult behaviour on public transport. This was not the reason why Ms X struggled to get Z to school by bus. The problem was that Z, due to his autism, found the sensory experience and environment of public transport very difficult and it triggered high anxiety and sickness. I am not critical that Ms X declined support for a problem Z did not have.
  15. The Council said in response to my draft decision the EWO support would extend to strategies for autism and anxiety and the EWO could have assessed the difficulties Z was having with transport. I agree that the EWO could have carried out an assessment by accompanying Z on his journey, but this was not the basis on which the EWO support was offered. The EWO support was offered after the request for travel support had been refused and without any assessment having taken place. The Council could have used the EWO to assess Z as part of its decision making, or it could have awarded transport and set up a programme to develop Z’s ability to travel on public transport with a view to withdrawing travel support once Z had demonstrated success. These would have been an appropriate use of EWO support, but this was not what was offered.
  16. Ms X told the Council that Z’s sibling also had SEN and mobility difficulties and provided medical evidence to support this. The Council in its response to my enquiries implies that it has given no weight to the evidence about Z’s sibling because the sibling does not have a confirmed diagnosis, is at the early stages of investigation and the evidence does not prove the sibling has SEN / disability / mobility difficulties. The Council says it will seek advice from agencies when necessary, but implies it is too early to do so. This is fault. The Council was required to take this evidence into consideration as part of its original assessment (under s.508B) as to whether it was reasonable for Z’s parents to accompany him to school or whether the combined difficulties of both children was a ‘good reason’ for Z’s parents not to do so. If the Council felt the evidence was unclear or inadequate, it should have consulted the agencies at the time and set this out in its decision letter so Ms X could have challenged this view or submitted more evidence.
  17. Further, I find the Council is wrong to say the evidence does not show that the sibling has SEN or a disability or to say the sibling has no diagnosis. Ms X has provided clear evidence from a paediatrician and speech therapist from 2017 confirming a diagnosis of GDD and communication difficulties. The sibling is under investigation for autism but even if the child receives additional specific diagnoses, this does not alter that SEN and disability was confirmed in 2017.
  18. The Council and appeal panel must also take account of this evidence when deciding whether to exercise discretion under 508C.
  19. The Council is dismissive of Ms X’s account of Z’s accident, saying it has not seen evidence to prove Z’s dyspraxia was the cause and that walking to school is good for Z’s dyspraxia. It is not for the Council to give medical advice or to require Ms X to prove Z’s accident is due to dyspraxia. The Council’s role is to assess the impact of Z’s dyspraxia on his walking and gather specialist advice if necessary, not just assume it is not causative of mobility problems. In response to my draft decision the Council says it will now carry out an assessment including seeking advice from an occupational therapist and physiotherapist. This offer is welcomed.
  20. When Ms X wrote again in October 2018 setting out that the Council had not applied the correct legal test, the Council’s response is confusing. It refers both to the previous appeal having dismissed her case and to new appeal rights. It Is not clear whether the Council intended this to be a complaint response or a fresh decision. The Council’s letter again wrongly referred to transport being refused on the basis of statutory walking distance, when, as Ms X had pointed out this was not relevant to Z’s case. This letter did however acknowledge that some children could be eligible even if they do not meet distance criteria due to their high needs or if there are exceptional circumstances. The letter went on to say Ms X’s application did not include sufficient information or evidence to indicate an exceptional case. This was fault for the reasons previously set out, it was for the Council to assess if Z had high needs which made him eligible. Exceptional circumstances are relevant to the exercise of discretion under s.508C, but this only applied once a lawful decision had been made under s.508B.

Injustice

  1. It is not for the Ombudsman to decide which children should receive free home to school transport. The Council should retake its transport decision in Z’s case having followed the correct process, done the necessary assessment and applied the correct legal tests.
  2. As we do not know whether the Council (or a further appeal panel) will find Z eligible for home to school transport it is premature to assess the level of injustice to the family. This will depend on whether Z has lost out on school transport since September 2018.
  3. If Z has lost out on school transport the Council should consider providing a suitable financial remedy to the family for the inconvenience and injustice caused. If the Council and Ms X cannot agree on the level of remedy then Ms X may bring this aspect of her complaint back to the Ombudsman to decide.
  4. Ms X has been put to unnecessary time and trouble pursuing her complaint to the Ombudsman. She also had to prepare appeals without the necessary information or rationale from the Council to do so.

Fault and injustice to others

  1. 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)
  2. I find the Council’s policy is contradictory on the factors that it will take into account when considering whether parents should accompany their children, and in parts is not compatible with the Guidance, suggesting the Council will not take into account the age of the child or a parent’s work or other caring commitments. I am concerned this may cause confusion and injustice to other families.
  3. The Guidance specifically says age is a factor which must be taken into account, for SEN/Mobility cases so Councils cannot have blanket policies that say that pupils of all ages must be accompanied. Councils must take into account in SEN cases whether the route is one that a child of that age would usually be able to manage unaccompanied and then consider whether it is reasonable to expect the parent in the particular case to accompany their child. This takes into account that there may be a disproportionate impact on parents of children with SEN and disabilities who need to be accompanied to a much higher age.
  4. The Guidance also says about accompaniment ‘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’. Councils cannot prescribe that work or other caring commitments cannot ever be taken into account. There may be situations where work or other caring commitments are a ‘good reason’ (s.508B) why a parent is not available to accompany their child or where discretion to provide transport under s.508C should be exercised. This is recognised in other sections of the policy about exceptional and discretionary provision but it is confusing that in one section such circumstances are explicitly ruled out as factors for consideration. What is a ‘good reason’ can be subjective which is why decision makers and appeal panels must have discretion to make their own judgment.
  5. That the faults in this case were not picked up by the transport team, Senior Officer or the appeal panel raises concerns as to whether Council and appeal staff are sufficiently well trained in their understanding of the law and statutory guidance and whether they may be making similar errors in other cases.
  6. It is for the Council to decide what appeal process to use, having regard to the statutory guidance. The Council says its panel considers written evidence but it does not currently allow for verbal representations by applicants (as is recommended in the Guidance). If verbal representations are not permitted it is even more important that councils carry out thorough assessments, provide clear explanations for its decisions and gather the necessary evidence to support robust decision making.

Agreed action

  1. Within four weeks of my final decision the Council will:
    • Apologise to Ms X and Z for the faults identified
    • Carry out an assessment of Z’s SEN/mobility needs in relation to his ability to travel to school including seeking advice from relevant agencies and then retake its decision about Z’s eligibility for transport on the basis of this information. The Council should also invite Ms X to submit any further evidence.
    • Provide a detailed decision letter to Ms X and the Ombudsman, setting out its decision, the evidence considered, the rationale for its decision and providing new appeal rights.
    • Pay Ms X £250 for her unnecessary time and trouble pursuing two appeals and a complaint to the Ombudsman due to the flawed initial decision.
  2. If the Council’s new decision is to award Z with free home to school transport, I recommend the Council provide Ms X / Z with an appropriate financial remedy for the period the family has been without transport. If Ms X remains dissatisfied with any offer from the Council she can ask the Ombudsman to reconsider this aspect of her complaint and recommend a remedy. The Council should seek to agree a remedy with Ms X within four weeks of making its transport decision.
  3. Within eight weeks of my final decision the Council will:
    • Review its transport policy and information on its website to ensure it is accurate, consistent, compatible with the law and Guidance, and does not fetter the discretion of decision makers or appeal panels in applying the law and Guidance.
    • Provide evidence to the Ombudsman that refresher training has been delivered to transport staff, reviewers and appeal panel members on the law and Guidance relevant to school transport decisions.
    • Remind officers and panels of the requirement for detailed decision letters to provide clear reasoning.
    • Carry out an audit of other transport applications decided for the academic year 2018/19 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. The findings of the audit should be shared with the Ombudsman.

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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 home to school transport. I have completed my investigation and upheld the complaint. I am satisfied completion of the agreed actions set out above are a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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