Summary: Mr X complains the Council failed to properly consider his appeal against the refusal of free home-to-school transport for his son, Y, who has SEN. He says walking Y through the streets to a pick-up point causes Y distress. There was fault by the Council as there is no evidence it considered the case Mr X made in reaching its decision. It will arrange a fresh appeal with a new panel.

The complaint

1. The complainant, whom I shall call Mr X, complains the Council wrongly refused to provide free home-to-school transport for his son, Y, after he changed schools, but instead will only provide transport from a pick-up point.
2. Mr X says walking to the pick-up point through busy streets causes Y distress as he has autism.

Back to top

The Ombudsman’s role and powers

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

Back to top

How I considered this complaint

6. I read documents supplied by the Council in response to my enquiries and spoke to Mr X on the telephone. I considered the Council’s duties under statutory guidance governing the provision of free home-to-school transport. I shared a draft of this decision with both parties and invited their comments.

Back to top

What I found

What should happen?

7. The law provides that children are entitled to free home-to school transport in certain circumstances. One of these is distance to the nearest suitable school with places, but even children living close to a school may receive free home-to-school transport if they are unable to walk the distance to school. Councils with education responsibilities must also consider applications for free home-to-school transport according to the circumstances of the child.
8. In Y’s case, his circumstances, as given to the Council by Mr X, are that he has autism and a heart condition and finds it distressing to walk in busy streets. Mr X also said it would be difficult to ensure his other children got to school at the same time if he had to walk Y to a pick-up point. There should therefore be evidence the Council considered these circumstances, though having done so, it would be entitled to refuse transport with reasons. We would expect to see notes of any decision by a panel that show why it reached its decision. We would also expect to see the grounds of appeal and the reason for the refusal at appeal stated in any letter after the panel.
9. Statutory guidance recommends councils offer an appeal hearing following a refusal of free home-to-school transport, though they may choose not to run a system of appeals. The Council has chosen to follow this guidance by offering parents an appeal hearing after any earlier refusal.
10. In any two-stage system, a different person should take the decision at each stage. We would expect any letter refusing transport to bear the name of the decision-maker, who should not be the same person as anyone who has previously decided the same matter. This is reflected in statutory guidance and the Council’s own policy, which mirrors the guidance.

What happened and was it fault?

11. The Council provided free home-to-school transport for Y. The Council told me this was because the family lived further from Y’s school than the statutory walking distance, which is three miles for a secondary-age pupil. There is no suggestion he could have attended a nearer suitable school.
12. The family moved home and now lived less than three miles from Y’s school. The application for free home-to-school transport for the 2018-19 school year now depended on Y’s circumstances. The Council turned down the application.

The Council’s letter

13. The copy of the letter refusing transport that the Council sent us bore no name. This was fault. The Council has given me the name of the author, but I have no evidence to corroborate this.

Offering Mr X an appeal

14. Mr X appealed against the refusal. His letter gave the grounds stated earlier for his appeal.
15. Mr X did not attend the appeal. He said this was because the Council did not tell him about it.
16. The Council sent me a copy of a letter to Mr X giving details of the appeal. The letter states it was sent by email.
17. I cannot say what happened. I consider it likely Mr X would have attended the appeal if he could. I also consider it likely the Council sent the letter by email in good faith. I am not able to reach any view, on the balance of probabilities, whether there was fault by the Council.
18. The Council told me it routinely ‘phones parents if they do not confirm whether they will be attending an appeal. However, it also told me it does not make records of calls. It does not have to do this. But the lack of any evidence means I cannot reach any view, on the balance of probabilities, whether the Council made attempts to contact Mr X.

The conduct of the appeal

19. The Council supplied two notes of the hearing. The existence of two versions without it being clear which one is correct is fault.
20. Neither showed the date of the hearing, the names of the panel, or any evidence of when they were created.
21. Both notes were brief, but one was more detailed than the other. Neither mentioned or considered Y’s heart condition or Mr X’s contention that Y’s autism meant he would become distressed walking to the pick-up point. These were key points of the appeal. The panel should have reached a decision whether either gave grounds to provide home-to-school transport. The notes do not show it did so. This was fault.
22. The Council told me the panel considered Y’s Education Health and Care (EHC) Plan, which gave no indication that he could not walk to a pick-up point. Only one of the two sets of notes mentioned “educational needs”, and neither referenced the EHC Plan directly. Regardless of whether the panel considered the EHC Plan, it is unlikely that this document would have given evidence of his ability or inability to walk to a pick-up point. This is because it would have been written before the family moved, and before the Council withdrew free home-to-school transport for him, so there would have been no reason to consider the issue in writing. Unless the panel had used the EHC Plan as evidence to show Y did not have the diagnosis Mr X claimed, it would have been irrelevant to the issue of walking to the pick-up point.

The letter after the appeal

23. The letter the Council sent to Mr X did not show the panel had considered the case he had put forward. Instead, it stated the appeal had been turned down because Y lived within walking distance. This was fault.

Injustice

24. The failure to name an officer on the refusal letter, the absence of evidence the panel considered key points of the case Mr X put forward and the failure of the decision letter after the panel to show the same were each fault. Taken together, they mean it is not possible to say if a panel, acting properly, would have upheld Mr X’s appeal or refused it.

Back to top

Agreed actions

25. Within a month of the final decision, the Council will:

• Arrange a fresh appeal with a new panel to hear Mr X’s appeal against the refusal of free home-to-school transport, without prejudice to the decision;
• Ensure decision letters sent to parents bear the name of the decision-make; and
• Ensure a single set of notes is taken of all panel hearings that reflects the issues discussed and shows consideration of the key points of the parental case, regardless of whether the parent attends.

26. In the event a new panel upholds Mr X’s appeal, the Council will apologise to him within a month of the panel hearing for the distress caused to Y by having to walk to the pick-up point.

Back to top

Final decision

27. I have upheld the complaint and completed my investigation. The Council has agreed to provide a suitable remedy for the injustice caused by fault.

Back to top

Investigator's decision on behalf of the Ombudsman