Summary: Mrs P complained the Council failed to consider her child’s needs in deciding how best to provide home to school transport. This meant she had to escort her daughter to and from school on an informal basis. There is evidence of Council fault and the Council has agreed to make payments and amend its procedures.

The complaint

1. The complainant, whom I shall call Mrs P, complains the Council failed to:
1. inform the family of the need to apply for home to school transport for their child, Q (and the other children in the family);
2. pay the full fuel allowance the family was entitled to and, when it subsequently did agree, it refused to backdate appropriately;
3. provide a passenger assistant, although it subsequently agreed Q should have one, and then said Mrs P should act as escort without payment and without arranging this with the taxi company. It expected her to escort her child to school but without a means of getting home and back to school afterwards, which had negative effects on the whole family;
4. take action when the driver the Council engaged drove dangerously. It later agreed to change drivers but took a long time to do so; and,
5. direct her to the complaints process because it dealt with her complaints as transport matters.
2. I am investigating those complaints.

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The Ombudsman’s role and powers

3. 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)
4. Under our information sharing agreement, the Local Government and Social Care Ombudsman will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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

6. I considered the information provided by Mrs P and made enquiries of the Council and assessed its response. I accessed relevant ‘Home-to-school travel and transport’ statutory guidance from July 2014. I sent Mrs P and the Council a copy of this draft decision and took the comments they made into account before issuing my decision.

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What I found

7. Q is five years of age and profoundly deaf. Q communicates through British Sign Language. Since September 2018, Q attends a special school for deaf children, which is an hour away from the home address. This is named in Q’s Education, Health and Care Plan (EHCP). According to the relevant statutory guidance, the distance exceeds the ‘maximum each way length of journey’ of 45 minutes for a primary school aged child, although the guidance acknowledges ‘a shorter journey time, although desirable, may not always be possible’. Before September 2018, Q attended an infant school.
8. I am considering each of Mrs P’s complaints in turn, below.

Failure to inform the family of the need to apply for home to school transport when Q attended infant school and the other children attended nursery

9. The Council’s admissions brochure clearly details transport arrangements for children with special educational needs. The Council does not have to contact parents individually to advise them to apply for school transport. We would not expect a Council to agree to backdate a payment to before it was applied for.

Failure to pay the full fuel allowance the family was entitled to

10. Mrs P asked the Council to provide a fuel allowance for Q to travel to infant school on 29 March 2018.
11. The Council said on 20 April 2018 that, as an ‘exceptional award’, it would pay £1.60 per day fuel allowance. It did not explain the reasoning behind the ‘exceptional award’. It did not say how Mrs P might appeal the Council’s decision. The Council’s website says it: ‘is able to offer parents/carers a payment in advance in order for them to take their entitled child to school/college where the cost of the payment is less than the cost of Essex County Council providing transport. The allowance is paid at 45p per mile to cover fuel costs for return journeys at the start and end of the standard school day…. Where 45p is in excess of the cost of the county council providing transport we would consider an alternative rate of 17p per mile’
12. It is fault the Council initially offered £1.60 per day. The Council later said the payment of 17p per mile was ‘on an entirely exceptional and individual basis’ even though this is Council policy (as is clear from its website). This is also fault. The Council should apologise to Mrs P for the time and trouble this caused and consider whether any other families are equally affected and receiving too little fuel allowance for journeys to school. It should ensure its decision letters advise people how to appeal against Council decisions.
13. The Council backdated its payment to 9 April (which is when it received the application). There is no evidence of fault.

Failure to provide a passenger assistant when Q went to a new school.

14. In July, Mrs P applied for school transport for Q when travelling to a new school. She wanted Q to have taxi transport with a Passenger Assistant (PA) so Q could communicate during the journey.
15. The Council’s policy says it will consider providing a PA when ‘a Health & Safety issue is apparent following a County Council Risk Assessment (or where) the journey time is one hour or more (or where) the number of students travelling on a primary school vehicle is 25 or more or where a Double Decker Bus is being used for primary transport’. It goes on to say; ‘Passenger assistants for SEN purposes are assessed on a case-by-case basis’.
16. In this case, the journey was over an hour long each way. Mrs P expected the Council to conduct a risk assessment or consider Q’s specific case, in line with its policy.
17. On 8 August the Council said Q would not need a PA but it would pay £79.68 per day for fuel reimbursement. It said ‘The Local Authority provides PAs on vehicles where there is a known need which may require assistance en route e.g. behavioural or specific medical needs….Q…does not require a PA under Council policy’.
18. The Council had not risk assessed Q. Q used BSL not spoken word. Therefore, if Q was cold, ill or just needed the toilet, Q would be expected to either sign or point to (or present) a relevant picture, from the back of the car to the driver at the front of the car whilst in a car seat. Alternatively, Q would have to kick the back of the driver’s seat so the driver could pull off the road to find out what the problem was. Drivers should be paying attention to the road at all times and, because of the long distance, it would not be appropriate to delay journeys more than absolutely necessary. Q would also have needed support, initially, to learn to use the pictures in any communication system as it was probably not something familiar. The Council’s failure to assess Q’s needs, in line with its policy, is fault and it should apologise for the distress this caused. It should ensure it adheres to its policy to consider school transport for children with special educational needs ‘on a case-by-case basis’.
19. As the family only had one car, and two other children who attended the nursery Q previously attended, it was not possible for them to accept a fuel allowance. Following further representations, on 22 August, the Council agreed Q needed a PA ‘until Friday 19 October’ to help Q settle in to school. It said to Mrs P she should ‘speak to’ the company as ‘the operator will be aware that an escort has been requested’. Mrs P could not ‘speak to’ the company as she is profoundly deaf; this is fault but there is no injustice to Mrs P as she had a representative who could contact the company. When her representative did make contact she was told, by the contractor, the contract was for transport only.
20. This was because the Council did not tell the contractor Q needed a PA until 19 October, when the arrangement for the first half term was meant to end, to take effect the following half term. This shows it accepted the need for Q to have a PA at least for the first term rather than the first half term. The email from the contractor says; ‘I will come back with an e-mail regarding the cost once we have confirmation that we can assign an assistant on the route’. The gap of two months between the Council accepting Q needed a PA and taking steps to ensure Q could have one, is fault. Telling Mrs P it had arranged for the contractor to provide a PA when it had not is also fault. This caused Mrs P time and trouble and the Council should apologise. The Council should amend its procedures to ensure there is no time lag between deciding a PA is needed and asking contractors to provide one.
21. Because there was no PA in place, Mrs P fulfilled this function by accompanying Q to and from school until 5 November 2018, when a PA was employed. I consider Mrs P had no choice but to accompany Q as no other arrangements had been made. Mrs P was only able to travel with Q, which meant she had to wait around the school between the start and end of the day as she could not get home or spend any money as she had no money to spend. This had an impact, not just on her, but on the whole family. This caused distress for Mrs P and her family. The Council should make a payment to Mrs P equivalent to what it would pay a passenger assistant for that time. It should also pay a contribution for her having to wait for Q for up to six hours every school day; I consider £75 per school week is an appropriate sum. It should also pay £300 as a token amount to reflect the considerable distress to the wider family.
22. There is no evidence the Council told Mrs P how it might support Q on the journey without a PA trained in BSL. There is no evidence it told Mrs P it had informed the contractor in October that it now expected provision of a PA for Q; it said in September ‘Mrs P has requested to travel with (Q) therefore a contract (it says it meant ‘PA’) is not required’, which pre-dates its email to tell the contractor that a PA was necessary. The decision making is unclear and this is fault.

Failure to take action against a driver.

23. On 18 September 2018, Mrs P reported poor driving skills by Q’s driver (including speeding at 90mph and using a mobile phone while driving). On 3 October the Council responded to say the driver’s use of his mobile was about finding directions but said nothing about speeding. It says the company ‘has assigned a different driver at this time’. It did not ask Mrs P whether she had additional evidence, which she did as she had recorded the incident on her telephone.
24. The Council tells me it requested a new driver be allocated on Friday 21 October to take effect on Monday 24 October. This goes against its contention in its 3 October letter that a ‘different driver’ had been ‘assigned’, which is fault. It caused distress to the family and the Council should apologise. Mr P had also witnessed poor driving and the other children had missed nursery because Mrs P was so concerned about the driver’s abilities that Mr P had to take Q to school rather than the other children to nursery. On the balance of probabilities, if the Council had asked for the video evidence, the delay could have been minimised. This is fault. It should apologise.
25. The Council says that when it replied to Mrs P it did not mention the driver speeding ‘because it is a matter for the Police’. If a complaint is made, the Council should tell complainants how it will proceed on all aspects, even if one complaint is for another agency. The failure to do that here is fault and it caused distress to Mrs P as she did not feel the Council was taking the complaint seriously. The Council’s policy to refer all complaints to the central complaints team should ensure complaints personnel now mention all aspects of complaints within its responses.

Failure to direct Mrs P to the complaints process

26. The Council says it considered Mrs P’s complaints under its transport policy rather than as a corporate complaint.
27. However, it failed to give clear instructions how Mrs P could appeal its decisions under the transport policy. Although its procedures are set out in its transport policy, parents should not be expected to read that to identify how to complain and how their complaints will be dealt with.
28. There is no evidence the Council responded to Mrs P’s complaint of 4 October 2018. This was chased on 16 October but there was still no response. Mrs P had to come to the Ombudsman to have her complaints considered. This is fault. The Council has agreed to refer all complaints to the central complaints team which will log complaints and answer them in accordance with the relevant complaints policy, giving details as to when a response might be expected by a complainant. It should amend its procedures to enable it to do this. It should apologise to Mrs P for the time and trouble it caused her having to chase a response from the Council. It should make a payment of £200 to reflect this.

Agreed action

29. For the Council to apologise to Mrs P for the fault causing injustice that has been highlighted in this statement within a month of the date of my decision.
30. For the Council to consider whether any other families are receiving too little fuel allowance for journeys to and from school within four months of the date of my decision.
31. For the Council to ensure its decision letters about transport matters advise people how they can appeal against Council decisions. The Council has agreed to signpost complainants to its website, where it will make the information about complaints more visible. For complainants that cannot access its website, it should send them relevant information on how to complain. It should do this within three months of the date of my decision.
32. For the Council to keep to its policy that it will assess children and young people and consider their needs for PAs on a case-by-case basis. It is asked to monitor this within four months of the date of my decision to check this is taking place.
33. For the Council to amend its procedures to ensure there is no time lag between deciding a PA is needed and asking contractors to provide one within three months of the date of my decision.
34. For the Council to make a payment to Mrs P equivalent to what it would pay a passenger assistant to when she stopped acting as one, i.e. to 5 November 2018. It will also pay a contribution for her having to wait for Q for up to six hours every school day; I consider £75 per school week is an appropriate sum. It will make a payment of £300 as a token amount to reflect the considerable distress to the wider family. It is asked to do this within three months of the date of this decision.
35. The Council says it will now direct complaints to the central complaints team, which will log complaints and answer them in accordance with the relevant complaints policy. It will give details as to when a response might be expected. It will change its procedures to enable it to do this within three months of the date of this decision. As it did not do that in Mrs P’s complaint, it has agreed to make a payment of £200 for her time and trouble in making this complaint within three months of this decision.

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Final decision

36. I have reached a finding of fault leading to injustice. The Council has agreed actions to remedy this.

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Investigator's decision on behalf of the Ombudsman