London Borough of Bexley (18 012 424)

Category : Education > School transport

Decision : Upheld

Decision date : 30 Apr 2019

The Ombudsman's final decision:

Summary: There is fault in the way the Council considered Mr and Mrs X’s application for school transport, stage 1 appeal and stage 2 appeal. The Council will carry out a reassessment of need, issue a fresh decision and make a financial payment for Mr and Mrs X’s time and trouble.

The complaint

  1. The complainant, Mr X, complains the Council has refused his application for home to school transport for his son, Y. Y has special educational needs and Mr X says he would be unable to travel independently.

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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. 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:
    • Mr X’s complaint and the information he has provided;
    • the information provided by the Council;
    • The Council’s SEND (special educational needs and disability) Travel Assistance Policy; and
    • The Council’s Policy for Travel Assistance for Children Attending School.
  2. I have also considered the relevant law and guidance and our Focus Report ‘All aboard? Navigating School Transport Issues’ (March 2017).
  3. Mr X and the Council were given the opportunity to comment on a draft of this decision. I did not receive any comments from Mr X. The Council informed me it agreed with my findings.
  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 any 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 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. Y lives within statutory walking distance of his school. This means if he did not have SEN he would not be entitled to free home to school transport.
  2. Y does have SEN as he has autism and ADHD (Attention Deficit Hyperactivity Disorder). The Council maintains an EHC Plan for Y. Y attends a special school.
  3. Y’s most recent annual review of his EHC Plan states he would not be able to keep himself safe on public transport and an independent travel training assessment is not currently appropriate for Y.
  4. The Council provided school transport to Y in the previous academic year. Mrs X submitted an application for home to school transport in May 2018 for the academic year 2018/19.
  5. The Council refused Mrs X’s application. I requested evidence of the Council’s assessment of Y’s SEN to determine he was not eligible for school transport. The Council did not provide me with any evidence of such an assessment although it said that it considers each case on its own merit. There is also no information from the original decision maker available to me, but the decision letter refers to the reasons for refusal as the walking distance from home to school as 2.2 miles and because Mr and Mrs X did not provide sufficient information to indicate there were exceptional circumstances.
  6. On 10 July 2018, Mr X appealed the decision and included the following information:
    • Y has no road sense and cannot be left unassisted to cross roads;
    • Y would not be able to walk to school as it would take him too long and he would be exhausted;
    • Mr and Mrs X cannot take Y to school as they need to take his younger brother to school;
    • Both Mr and Mrs X work and Mrs X is recovering from breast cancer;
    • Mr and Mrs X are happy to pursue independent travel training once Y has learnt basic road crossing and can find his way around his local community;
    • Mr X asked the Council to refer to the submissions sent to the Council by Y’s school.
  7. The Council replied to Mr X’s appeal on 8 August 2018. The first stage appeal decision letter states his appeal was not upheld because he did not provide sufficient information to indicate that Y’s or the family’s situation warrants the application of ‘exceptional circumstances’ and the distance criteria still applied. The Council also said in its response that Mr X had not provided adequate reasons why his and Mrs X’s work commitments should be considered as an exceptional situation. It said that all working parents remain responsible for their child’s school attendance and employee and employers would be expected to make reasonable adjustments.
  8. The letter then 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.
  9. The Council provided me with the record of the stage 1 appeal meeting. The record shows the Council considered Mr and Mrs X’s work situation and Mrs X’s health. It then goes on to say:

“Decision: appeal dismissed, we would expect the family to take [Y] to school and for family and school to explore readiness for travel training and feedback via annual review process- please do check additional evidence Mr [X] is mentioning….”

  1. There was no reference made to Y’s needs in the record of the stage 1 appeal meeting.
  2. In August 2018, Mr and Mrs X appealed to stage two. They enclosed a copy of Y’s annual review of his EHC Plan and highlighted the following:
    • Y’s most recent annual review says that he would not be able to keep himself safe on public transport and independent travel training is not currently appropriate but may be something to consider in the future;
    • Y is unable to walk to school as he would get lost, he isn’t road aware and he would be too tired;
    • Y’s EHC Plan says that he cannot generalise his interpersonal skills to people he does not know and would be unable to differentiate between innocent interactions with people and anything more sinister. He would be unable to react appropriately in either case.
    • Mr X and Mrs Y are unable to accompany him as they have to take his younger brother to school and they both work.
  3. Mr and Mrs X’s stage two appeal was considered by a Panel. It upheld the decision to not award school transport. The Council has not provided me with any minutes or a record of the Panel’s considerations.
  4. The Council sent a decision letter to Mr and Mrs X on 3 October 2018. The Council’s decision letter said:
    • The Panel did not agree that the exceptional circumstances criteria should apply;
    • As there were no exceptional circumstances to take into account, Mr and Mrs X’s application was considered under the distance criteria. Y lives 2.2 miles from school and so does not qualify;
    • The Council was not judging Y’s capacity to travel alone;
    • It is a parent/carer’s responsibility to ensure children attend school regularly. This includes arranging any necessary travel to and from school and/or accompanying a child as necessary when there is no entitlement to travel assistance.
  5. The appeal letter said this was the last stage of the appeal process and correctly signposted Mr and Mrs X to the Ombudsman.

Ombudsman enquiries

  1. In response to my enquiries, the Council told me that:
    • The Council had previously approved travel assistance on a discretionary basis even though Y did not meet the eligibility criteria. The Council has now increased adherence to the Travel Assistance Policy with greater accountability and consistency.
    • It assessed Y’s needs, journey times and accessibility. It did not find enough evidence to indicate Y was unable to walk (with an adult) to school, or that there were exceptional circumstances in which Y’s parents could not support his travel to school.
    • It provides travel assistance for those who are eligible by way of meeting the criteria. It also “considers each case on its own merit based on needs and circumstances to decide if a discretionary award of support is required. If a child or young person does not meet the criteria, then parents can transport to school by family car or accompanied to school using public transport”.
    • The circumstances that surround Mr and Mrs X's family were considered based on the information provided during the application/appeals process. The Council acknowledges the struggles and difficulties presented but was of the opinion that a range of support options still required exploration by the family which were reasonable expectations to place on families.

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Analysis

  1. The original decision and the two appeal decisions were decided on the basis of statutory walking distance. This was the wrong legal basis as Y has SEN. 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 Y on an individual basis to identify his particular difficulties and transport requirements.
  2. The Council says it considered whether Y could walk to school accompanied by an adult but I have seen no evidence of an individual assessment being conducted. The Council told me there was not enough evidence to indicate that Y was unable to walk accompanied. But I have seen no evidence how the Council arrived at this decision.
  3. The record of the stage 1 appeal consideration shows no assessment of Y’s needs. This is fault. It states that the family and school should explore readiness for travel training and feedback via the annual review process. If the Council had considered Y’s most recent annual review it would have been aware that this had already been done and it was found an independent travel training assessment was not yet appropriate for Y. This suggests the Council did not review Y’s EHC Plan and/or the annual reviews. This is fault.
  4. Under the decision heading of the record it says, ‘please do check additional evidence Mr X is mentioning’. This refers to the submissions from Y’s school that Mr X referred to in his stage 1 appeal. This comment suggests the information from the school was not considered when making the decision but a note was made to look at it after the decision was made. This is fault. All the information relating to the child’s needs should be assessed and considered before a decision is made, not after.
  5. I have not seen any record of the stage 2 Panel’s considerations. The decision makers and the appeal panel had to set out clearly why they considered Y did not have the problems associated with his SEN that Mr and Mrs X and the School said he did. The council officers who made the original decision and the stage 1 appeal decision and the Appeal Panel at Stage 2 all failed to do so. This is fault.
  6. The Council told Mrs X that she had not provided enough evidence of an exceptional case. Under the Guidance, Mrs X did not need to provide proof of exceptional circumstances. The Guidance is clear that when an applicant relies on SEN grounds that the onus is on 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’ under Schedule 35B. That was a test of reasonableness, not exceptionality.

Agreed action

  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 Y’s case having followed the correct process, done the necessary assessment and applied the correct legal tests.
  2. Within four weeks of my final decision, the Council will:
    • Apologise to Mr and Mrs X and Y for its handling of their 2018 application and appeals.
    • Carry out an assessment of Y’s SEN in relation to his ability to travel to school including seeking advice from relevant agencies and then retake its decision about Y’s eligibility for transport on the basis of this information. The Council should also invite Mr and Mrs X to submit any further evidence.
    • Provide a detailed decision letter to Mr and Mrs X and the Ombudsman, setting out its decision, the evidence considered, the rationale for its decision and providing new appeal rights.
    • Offer Mr and Mrs X a payment of £250 for their unnecessary time and trouble in pursuing two appeals and a complaint to the Ombudsman due to the flawed initial decision.
  3. If the Council’s new decision is to award Y with home to school transport, I recommend the Council should provide redress, to be agreed with the Ombudsman, for the period the family has been without transport. The Council should seek to agree a remedy within four weeks of making its transport decision.

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Final decision

  1. There is fault by the Council and it has agreed to remedy the injustice caused. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman

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