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Staffordshire County Council (18 011 727)

Category : Education > School transport

Decision : Upheld

Decision date : 06 Aug 2020

The Ombudsman's final decision:

Summary: Mrs Y and her husband, Mr P, complained the Council failed to properly consider the individual circumstances of Mrs Y’s disabled son D in 2018 in a request for home to school transport to his sixth form. The Council was at fault in its consideration of D’s application which caused D and his family upset, frustration and inconvenience. It also led to D being unable to attend and receive provision at his special school for part of the school year. The Council has now agreed to several actions, including a financial payment, to remedy the injustice caused to D and his family.

The complaint

  1. Mrs Y and her husband, Mr P, complained in 2018 the Council failed to properly consider the individual circumstances of Mrs Y’s disabled son D in a request for home to school transport to his sixth form.
  2. They said this caused Mrs Y and her son upset, frustration and inconvenience. They said this led to D missing the first half-term of the school year. It impacted on Mr P and his ability to work as he had to transport D to and from school.

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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 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)
  3. 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.
  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 spoke to Mr P, who represented himself, Mrs Y and D in this complaint to gather more information. I also made enquiries to the Council.
  2. I considered the Ombudsman’s Focus Report, entitled ‘All on board?’ which highlights some of the common failings seen in school transport provision. The Ombudsman issued the report in March 2017 to help councils avoid common pitfalls.
  3. Mr P, Mrs Y, D, and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Transport for young people of sixth form age – the law

  1. Councils must publish a statement explaining the arrangements for providing transport they consider it necessary to make for the attendance of persons of sixth form age receiving education or training at specified institutions. The statement must set out the arrangements the council proposes to make for young people with special educational needs (SEN) and disabilities
  2. In considering what arrangements it is necessary to make for sixth form pupils, the council must have regard to:
      1. the needs of those for whom it would not be reasonably practicable to attend an education establishment if no arrangements were made;
      2. the distances, and journey times, between the homes of people of sixth form age in their area and education establishments suitable to their needs. The statutory guidance ‘Post-16 transport to education and training’ says good practice would apply the same journey time to access learning as those for secondary aged children, up to 75 minutes each way. It says post-16 students should be able to reach their place of education without incurring stress, strain, or difficulty so that they would be unable to benefit from the education. The examples given included a young person having to make several changes of public transport if that would result in an unreasonably long journey time;
      3. the transport needs for sixth form pupils with special educational needs or disability. The council must reassess their transport needs when they move from compulsory schooling to post-16, even if it is at the same establishment. There is no automatic entitlement to transport to an institution named in an Education, Health and Care Plan.
  3. In considering if it is necessary to make arrangements for those purposes, a council shall have regard to the nature of the route which the individual could reasonably be expected to take. (Education Act 1996, section 509AB)
  4. Section 17 of the Children Act 1989 says councils must take reasonable steps to assess the needs of children in their area who are ‘in need’. The law says a disabled child is a child in need.
  5. Section 2 of the Chronically Sick and Disabled Persons Act 1970 states if a council is satisfied, by carrying out an assessment, that it is necessary to make arrangements for, among other matters “the provision for the child of lectures, games, outings or other recreational facilities outside the home or assistance to the child in taking advantage of available educational facilities” the council is under a duty to make those arrangements.
  6. For those young people who have an Education, Health and Care Plan, section H1 of the plan asks if they have any needs identified under section 2 of Chronically Sick and Disabled Persons Act 1970.

The Council’s post 16 transport policy statement 2018-19

  1. The Council’s post-16 transport statement for 2018 to 2019 said it aimed to provide support to those who needed it most while building independence. It said it will offer assistance” where the young person has a learning difficulty or disability making them unable to walk or able to use public transport, even when accompanied, if they are attending the education institution named in their Education, Health and Care Plan.
  2. The Council’s statement said disabled and SEN students who meet the eligibility requirements will be provided with travel assistance using the most cost-effective method appropriate to their needs upon contribution towards the cost. The contribution required was listed as between £492 and £625 for the academic year 2018/2019. It would decide the suitability and type of assistance provided. It would base this on the student’s needs and abilities, balancing reasonable costs and reasonable travel/waiting times to enable access to the place of learning for the general start/finish times.
  3. The statement outlined a two-stage appeal process for those who disagreed with its post-16 transport decisions. Stage 1 was a review by a senior officer and Stage 2 was a review by an independent appeal panel, which was the final part of the process.
  4. The Council’s travel statement confirmed that in Stage 1 and Stage 2 appeals it would send a decision letter, setting out:
    • the nature of the decision reached;
    • how the Council conducted the review (including the standard followed);
    • information about other departments and/or agencies the Council consulted as part of the process;
    • what factors it considered; and
    • the rationale for the decision reached.

Background

  1. Mrs Y’s son, D, has autism and learning difficulties. D attends a special school sixth form as named in his Education, Health and Care plan (EHC plan), last updated in April 2017. His EHC plan noted he struggled with any changes to his routine. His EHC plan at section H1 (social care provision) said he has no needs identified under section 2 of the Chronically Sick and Disabled Persons Act 1970.
  2. D’s school was 14 miles from his home and his EHC plan did not include provision of transport. He had attended the school since 2014. The Council provided D with a taxi and an escort until 2018. The Council then ended funding for this transport when D joined the school’s sixth form in September 2018.
  3. Mr P is married to D’s mother, Mrs Y, but does not hold parental responsibility for D.

What happened

  1. Mrs Y applied to the Council for post-16 transport assistance for D in May 2018. The Council refused the application in June 2018. It said there was no evidence D could not travel, accompanied as necessary, on public transport. Instead it suggested independent travel training, a local bus pass or a concessionary pass so Mrs Y could accompany D on public transport.
  2. Mrs Y appealed. She gave the following reasons within her appeal letters (at Stage 1 and Stage 2):
    • D would have to take three different buses, taking more than two hours each way to attend school. He would likely display behavioural issues if he had to wait for lengthy periods of time for connecting buses. The waits may lead to him publicly wetting or soiling himself or suffering discomfort.
    • If using public transport, even if he caught the first bus available, he would consistently be an hour late to school each day due to the journey time. From previous experience, Mrs Y said this would lead to D being anxious about having been late and upset throughout the school day.
    • After Mrs Y and D had tried to make an accompanied journey by bus, D had become upset and refused to catch the bus home again. He had since become anxious about going to school in September because of his worry about travelling.
    • Mrs Y does not drive (although her husband, Mr P, does). Without transport she would need to make the journey with D. This would allow her only an hour between returning from taking D to school before she would need to make the return journey to collect him. This would prevent her from being able to work at all. The alternatives were for D to miss school or Mr P to drive D to and from school. However, Mr P could not drive D as his job meant he was away from home early (about 5:30am) in the morning until late evening (after 6pm).
    • D was vulnerable. He could easily become disorientated and unable to know when to get off the bus or which bus to catch. He would be vulnerable to exploitation and bullying.
  3. The Council carried a review at the first stage of its appeals process. The Council rejected Mrs Y’s appeal in August 2018. It explained there was no evidence D could not travel on public transport if accompanied and no evidence he could not use “other forms of transport”. The Council said there was no expectation that public transport must or should be used as it is only one way to make the journey to school. It said the evidence Mrs Y provided did not show D could not make the journey to school in other ways.
  4. Mrs Y asked for a Stage 2 appeal based on the points listed in paragraph 24 and explained there were no other practical ways for D to get to school.
  5. The Council invited Mrs Y to provide any further information she felt would support her appeal. Mrs Y provided a letter from a local NHS trust’s learning disability team in support. This letter, from the same team that contributed medical advice for D’s EHC plan in 2016, said D would not be able to access public transport safely. It said D was vulnerable and open to bullying or abuse, would be easily distracted and had little sense of danger.
  6. D did not attend his sixth-form school from September 2018 until Mr P began to take D to and from school by car in October 2018. Mr P says he was only able to do this from October onwards, having changed jobs, he says to help D to get to school.
  7. The panel considered and then dismissed the appeal at the second stage in October 2018. The panel notes and the decision letter referred to:
    • A “potential 3 buses available and waiting times and numbers of changes which makes journey a lot longer”;
    • D had not been to school since September so “no education to show if education is being affected”;
    • D had only tried the journey by public transport once and the panel suggested that travel training would reduce D’s stress when travelling;
    • The panel considered that Mrs Y could not drive, although Mr P could. However, the panel did not consider Mr P’s long working hours were exceptional reasons to justify the Council providing transport.
    • It said although the local NHS trust’s learning disability team raised concerns, this was if D was to travel unaccompanied.
    • The appeal notes recorded the application was “refused at this point – more information would be required from the [NHS] learning disability team”.
  8. The Council did not include this last point in the decision letter.
  9. Responding to our enquiries the Council confirmed:
    • it does not consult other agencies on applications or appeals as, if there are any agencies involved, these may vary for each applicant;
    • it holds the parent/carer responsible for demonstrating the need for travel assistance. Its decision is made solely on the information provided by the parent or student; and
    • travel training, including desensitisation, which is often used for those with autism, involves a series of small steps to expose a young person to a new experience. This would be delivered over time.

Findings

The Council’s consideration of D’s eligibility for travel assistance

  1. The Council’s policy said “it will offer help where the young person has a learning difficulty or disability making them unable to walk or able to use public transport, even when accompanied, if they are attending the education institution named in their Education, Health and Care Plan”.
  2. Mrs Y gave the Council information that the journey to D’s school by public transport was excessively long at two hours, significantly outside the recommended maximum journey time of 75 minutes. She also explained he would arrive an hour after school started. I have checked the journey time, using information publicly available on the Internet. I agree that D’s journey to school by public transport would involve three buses and take over two hours as Mrs Y stated in her appeal.
  3. The Council’s decision letter did not explain why two hours journey time was acceptable or how the information Mrs Y had given was incorrect. The journey was significantly longer than the statutory guidance recommends. It was therefore not a suitable way for a young person, disabled or not, to travel to their education institution. Consequently, the Council’s decision was flawed. It was not in accordance with the statutory guidance on journey time, with no cogent reasons why the Council departed from this.
  4. Mrs Y also gave information about why D would be too distressed to take three separate buses to school. The Council’s Panel felt it needed more information from the NHS to decide and noted “refused at this point, more information would be required from the [NHS] learning disability team”. The Council failed to get this further information and did not tell Mrs Y it wanted more information. That was fault. If the Council wanted more information, it should have gained it before it made its decision.
  5. The Council says it is too labour intensive for it to consult other bodies or agencies such as the NHS. The Council’s appeal process says it will state which agencies it has consulted as part of its decision making. This implies it will consult other agencies. Writing to the NHS to ask for clarification does not appear to be as burdensome as the Council now says. It failed to get the missing information from the NHS learning disability team it clearly believed was relevant. That was fault.
  6. The Council also failed to tell Mrs Y in its decision letter the panel had said further information from the NHS would have helped it to come to a definitive decision. It did not therefore fully explain how it had made its decision. That was fault and meant she also could not try to address the gaps in the information.
  7. The statutory guidance says young people of sixth form age should be able to “reach their place of education without incurring stress, strain, or difficulty so that they would be unable to benefit from the education offered”. The examples in the guidance include a young person having to make several changes of public transport which results in an unreasonably long journey time. From the faults identified, the Council has not shown how it considered this guidance when deciding D could reasonably travel to school for two hours each way, with three changes of bus, arriving one hour late for school every day, even if he were accompanied.
  8. The panel’s comments about not being able to consider if D’s education had been affected by a lack of transport because he had been out of education from September 2018 are confusing. The impact on D was he missed education set out in his EHC plan and the significant support set out in the plan.
  9. The Council’s panel said D should try independent travel training. This does not consider the journey time for D of two hours each way to use public transport or that D would be an hour late to arrive at school. It is right for the Council to promote independence where possible, but the journey time was an overarching factor in this case.
  10. The Council’s panel then went on to consider if a family member could drive D to school. The Council’s panel considered whether Mr P working long hours and
    Mrs Y being unable to drive were “exceptional circumstances” that meant it should provide transport for D. It found that they were not. The Council gave no reasons for its decision. This was the wrong test. The Council’s post-16 transport statement says “it will offer” transport assistance if a young person with SEN or disability is unable to travel to school by foot or on public transport, not whether he could be driven there. Therefore, the Council considered irrelevant information when coming to its decision when considering whether someone could drive him to school and that was fault.
  11. As D is disabled, the Council could offer an assessment of D’s needs under Section 2 of the Chronically Sick and Disabled Persons Act 1970. His EHC plan at section H1 (social care provision) said he has no needs identified under section 2 of Chronically Sick and Disabled Persons Act 1970. However, I have seen no evidence the Council had carried out an assessment to conclude this. This is especially so in light of D having his transport support stopped from September 2018, over a year after his EHC plan was last updated.

Have the faults caused injustice?

  1. The Ombudsman does not decide whether the Council must provide transport assistance for D. The Ombudsman investigates whether the Council considered the application and appeals properly. We cannot question the merits of a decision taken properly by the Council. However, as I have found several flaws in the Council’s deliberation of the application and appeal it brings the decision into question.
  2. Mrs Y and D were left with uncertainty about whether the Council’s decision might have been different had the Council’s panel considered how the journey time exceeded the guidance and received the information it felt it needed from the NHS learning disability team.
  3. Mrs Y and D became anxious over how D would travel to and from school. They worried about how he would arrive safely, on time and able to benefit from the education provision. This was regardless of whether Mrs Y accompanied him or not. Due to his diagnosis, this anxiety impacted heavily on D. This in turn upset and worried Mrs Y as she could not understand the decision fully without all the information. It was frustrating for her and D.
  4. D did not attend his school placement for the first half-term, about 40 days. According to the family this absence was because D could not travel there without transport provision. They say the absence ended because Mr P changed jobs to transport D by car. This meant D was unable to gain the full benefit of his special school placement.
  5. By considering Mr P’s ability to drive D to school, despite its policy, and referring to methods of travel other than public transport, Mr P feels the Council indirectly expected him to transport D. While the Council did not require Mr P to take D to and from school by car, Mr P began to in October 2018, having changed jobs to do so. As Mr P does not have parental responsibility for D, he completed the journey, while under no obligation other than his good will to D. His actions to transport D because of the Council’s fault did however cause him significant inconvenience.
  6. In response to a draft of this decision the Council accepted it was wrong not to assist D with home to school transport to assist D to attend his sixth form. It also accepted its Stage 2 review of the decision to refuse travel assistance incorrectly applied its Post 16 Travel Statement for 2018-2019. To remedy this, the Council contacted the family to put travel assistance into place under the correct policy from February 2020 onwards.

Agreed action

  1. To remedy the injustice caused to D and his family the Council has agreed, within three months of this final decision to:
      1. Apologise to Mr P, Mrs Y and D for the faults identified above;
      2. Pay Mrs Y £300 to acknowledge the uncertainty and the resulting upset caused to D and his family by the flawed decision-making process;
      3. Refund the mileage costs Mr P incurred from the start of the October half term 2018 until February 2020, when new transport arrangements were put in place, in line with its mileage policy;
      4. Pay Mr P £10 per school day from the start of the October half term until transport was arranged for D in February 2020. This payment is in recognition of the time, inconvenience and loss of opportunity to work as Mr P had previously; and
      5. Pay D £600 to recognise the loss of the support and education stipulated in D’s EHC plan when he did not attend because of a lack of suitable transport from September to October 2018.
      6. The Council can deduct the costs the family would have incurred as part of their contribution to post-16 transport, between £492 and £625.
  2. To improve its service, the Council has also agreed:
      1. To ensure decision letters in future set out clearly not just the rationale for the decision, but the evidence gathered and relied upon;
      2. To provide evidence to the Ombudsman that relevant staff, appeal decision makers and panel members have received information about the lessons learned from this case;
      3. To ensure officers are aware of, and follow, the Council’s statement to consult other agencies where it is necessary to make a properly informed decision about eligibility on SEN or other disability grounds. The Council has agreed to revise its transport statement and supporting documentation to clearly state the Council will require applicants to provide evidence establishing that the criteria are met, except in cases where applicants are able to satisfy it that they are reasonably unable to provide this. If so, the Council says it will comply with its overriding duty to act fairly and take reasonable steps to ensure it has adequate information to reach its decision.
      4. It has a residual discretion and is prepared to consider exceptional cases under the Chronically Sick and Disabled Persons Act 1970, the Children Act 1989 and the Education Act 1996.

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Final decision

  1. I have completed my investigation to find the Council did cause fault leading to injustice to Mrs Y, Mr P and D which the Council has now agreed to remedy.

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Investigator's decision on behalf of the Ombudsman

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