London Borough of Bexley (18 011 365)

Category : Education > School transport

Decision : Upheld

Decision date : 04 Apr 2019

The Ombudsman's final decision:

Summary: Ms X complains the Council wrongly declined her application for school transport for her child. She says this has led to health and safety concerns. The Council is at fault. There is no record that it conducted the appeal in line with its policy or considered all the supporting evidence when making its decision. The Council has agreed to offer Ms X a fresh appeal and review its processes for conducting and recording school transport appeals.

The complaint

  1. Ms X complains the Council has wrongly declined her application for school transport for her child. She says in refusing her appeal, the Council has not properly considered her child’s special educational needs and the associated health and safety risks with walking to school or using public transport. She wants the Council to re-consider its decision and provide her child with transport to and from school.

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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. 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)
  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 read Ms X’s complaint and spoke with her about it on the phone.
  2. I made enquiries of the Council and considered the information it sent me.
  3. Ms X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

  1. The Education Act 1996 sets out councils’ responsibility to make transport arrangements for eligible children in their area to facilitate attendance at school. The government has also produced statutory guidance to support councils to fulfil their duties under the legislation.
  2. The guidance says a child is eligible for assistance with transport to school if they come under one of two categories:
    • Special educational needs, a disability or mobility problems

The child is of compulsory school age (age 5-16), has a disability, special educational needs or mobility problems and cannot reasonably be expected to walk to school due to their disability, special educational needs or mobility problems.

    • Statutory walking distance

The child’s nearest suitable school is beyond 2 miles (if the child is under the age of 8), or beyond 3 miles (if aged between 8 and 16) from their home.

  1. The statutory walking distances should not be a consideration when assessing the transport needs of children eligible due to special educational needs, disability or mobility problems.
  2. If a council makes school transport arrangements for a child, these must be free of charge.
  3. When considering eligibility under the category of special educational needs, disability or mobility problems, the council should consider whether a child could reasonably be expected to walk accompanied. If so, it should consider whether the parent could reasonably be expected to accompany the child.
  4. The London Borough of Bexley also has its own Travel Assistance policy setting out how it decides eligibility and what travel assistance it may offer. The policy also sets out its appeals process. It says the process has two stages:
    • The first stage is a review by the Head of Special Educational Needs.
    • The second stage is an independent review of the evidence by an independent appeal panel. The panel is made up of members independent of the process to date and suitably experienced. It says the second stage appeal will involve consideration of all evidence gathered and the reasons for the decision.
  5. Some children and young people with special educational needs and disabilities will have an Education, Health and Care Plan (EHCP). The EHCP identifies a child’s education, health and social needs and sets out the extra support needed to meet those needs.
  6. The Local Government and Social Care Ombudsman has produced guidance for councils on the principles of good administrative practice. This document outlines six core principles of good administration which includes the need to be open and accountable. Councils can help achieve this by keeping proper and appropriate records giving clear reasons for decisions made.

What happened

  1. Ms X’s child, Z, has special educational needs and has an Education, Health and Care Plan. The plan says due to their needs, Z should attend a school with specialist provision. The school named in Z’s EHCP is not Z’s nearest school.
  2. In June 2018, Ms X applied to the Council for school transport assistance. In the application, Ms X set out why Z needed assistance. She listed Z’s health conditions, special educational needs and how they affected Z’s ability to travel safely to and from school.
  3. The Council declined the application. It said Z was not eligible for school transport assistance because:
    • they did not meet the criteria for special circumstances;
    • the walking distance to the school was under two miles.
  4. In July 2018, Ms X appealed the decision. She sent in several pieces of supporting information with the appeal application form. All the documents supported the view that due to Z’s special educational needs, it would be unsafe for Z to walk or use public transport to get to school.
  5. In its consideration of the case, the panel considered Z’s health conditions. It said the school was 1.8 miles from their home. The walking journey would be less than 30 minutes, or eight minutes by bus. The appeal panel declined the appeal. It recommended Z’s school provide advice on how to support Z’s needs when travelling to and from school.
  6. The Council sent Ms X a Stage 1 appeal decision letter. The letter said the appeal application did not provide enough evidence that Z’s needs met the criteria for exceptional circumstances.
  7. Ms X was unhappy with this response and escalated her appeal to Stage 2. She instructed a solicitor who wrote a letter in support of the appeal. The letter set out how they believed Z met the criteria for exceptional circumstances. It said it did not consider the Council had considered the supporting evidence from health professionals or provided evidence in its decision letter that it had considered Z’s individual circumstances.
  8. In its response to our enquiries, the Council said there were no minutes or notes taken from the Stage 2 appeal panel. The only record was to uphold the original decision to decline the application.
  9. The Council sent Ms X a Stage 2 appeal decision letter. It said it did not agree there were exceptional circumstances and Ms X had provided no new evidence. The distance from home to school is under 2 miles. It said Z was not eligible for assistance from the Council with transport to school.
  10. Ms X remained unhappy and complained to the Local Government and Social Care Ombudsman. She said she could not understand how the Council decided that Z was not eligible for assistance, given the information provided about Z’s special educational needs and the supporting evidence provided by several NHS professionals.

Analysis

  1. 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.
  2. The Council said there were no minutes or notes taken at the Stage 2 appeal panel hearing. Because of this, there is no evidence:
    • the appeal was heard by a panel of members independent of the process and suitable experienced;
    • the Council considered all the supporting information when making its decision;
    • of the reasons for the decision the panel made.
  3. As there is no documented record of the Stage 2 appeal hearing, I cannot say if the Council made the decision to decline Ms X’s appeal in line with the law, the statutory guidance and with the Council’s own policy. The failure to keep proper and appropriate records is poor administrative practice and is fault.

Agreed action

  1. Within one month of my decision, the Council has agreed to arrange a fresh stage 2 appeal hearing, conducted in line with its policy. The panel should consist of members independent of the process to date. This appeal hearing should be fully documented with clear evidence of the information considered and explaining the reasons for the decision made.
  2. If Ms X’s appeal is successful, the Council should consider reimbursing Ms X for any costs incurred transporting Z to and from school since September 2018.
  3. Within three months of my decision, the Council has agreed to review its processes for conducting and recording Stage 2 school transport appeals. It should provide evidence to the Ombudsman that it has done this. In future, it should ensure it keeps proper and appropriate records of its appeal hearings to include:
    • Who was present;
    • How information was considered;
    • The reasons for the decisions made.

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Final decision

  1. I have completed my investigation. I have found fault causing injustice and made recommendations to remedy the injustice caused, which the Council has agreed to.

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Investigator's decision on behalf of the Ombudsman

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