London Borough of Bexley (18 012 597)

Category : Education > School transport

Decision : Upheld

Decision date : 02 Apr 2019

The Ombudsman's final decision:

Summary: Mrs X complained the Council refused her application for home to school transport for her son who has special educational needs. There is fault in the way the Council considered Mrs X’s application, stage 1 appeal and stage 2 appeal. The Council has agreed to carry out a reassessment of need, make service improvements and make a financial payment for Mrs X’s time and trouble.

The complaint

  1. The complainant, Mrs X, complained the Council refused her application for home to school transport for her son, Y, who has special educational needs (SEN).

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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 considered:
    • Mrs X’ s complaint and the information she provided on the telephone;
    • the information provided by the Council;
    • The Council’s SEND (special educational needs and disability) Travel Assistance Policy;
    • The Council’s Policy for Travel Assistance for Children Attending School;
  2. I also considered the relevant law and guidance and our Focus Report ‘All aboard? Navigating School Transport Issues’ (March 2017).
  3. Mrs X advised me she was happy with my draft decision. The Council advised me it agreed with my findings, analysis and recommendations in my draft decision.
  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, a disability or mobility problems he would not be entitled to free home to school transport.
  2. Y does have SEN as he has autism, dyspraxia and dyslexia. He has a language disorder and experiences difficulties regarding aspects of receptive language and understanding, as well as difficulties with his social interaction skills. Y has a reduced awareness of danger, particularly road safety and he is not an independent traveller. He has difficulties with attention and listening, he is easily distracted and may wander off.
  3. The Council maintains an EHC Plan for Y. Y attends a special school.
  4. The Council had provided school transport to Y for two years. Mrs X submitted her application for school transport in June 2018 for the third year, 2018/19.
  5. The Council refused Mrs X’s application for transport. There is 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 being 2.5 miles and because Mrs X did not provide sufficient information to indicate an exceptional case.
  6. On 30 July 2018, Mrs X appealed the decision and included the following information:
    • Mrs X has three children with additional needs;
    • Her youngest child, W, has Downs Syndrome with cardiac defect;
    • Mrs X is required to take W to various medical appointments on a weekly and monthly basis;
    • W is due to have surgery in September 2018;
    • Mrs X has to rely on Y’s grandmother to collect Y and his sibling from school when she is at medical appointments with W;
    • A supporting letter from W’s surgeon; and
    • A supporting letter from Y’s school.
  7. The Council replied to Mrs X’s appeal on 29 August 2018. The first stage appeal decision letter states that her appeal was not upheld because Y lived 2.5 miles away from school and therefore does not meet the criteria. The letter also states the Head of SEN and Inclusion had considered the current health needs of W and agreed to provide a discretionary offer of travel assistance for one term for Y so Mrs X can be in hospital with W to support his recovery.
  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. It contains statement of facts from Mrs X’s appeal form and it considers the distance from Y’s home to school. The only reference made to Y’s needs was ‘[Y] has ASD and some associated learning needs’. There was no consideration of how Mrs X would be able to accompany Y to school after the first term.
  10. Mrs X appealed to stage two. She submitted the following with her appeal:
    • A letter from Y’s GP to say that given the nature of his autism and learning difficulties, he is vulnerable and at risk, making him unable to walk 2.5 miles from home to school. He does not seem to have any road safety sense and his behaviour is unpredictable around strangers. The letter also states that Mrs X cannot transport Y to school due to commitments with his siblings who also have complex health and social needs.
    • A letter from W’s surgeon about his health needs and upcoming surgery.
  11. A letter from an Advocate written on Mrs X’s behalf was also submitted. The letter provided the following reasons for appeal:
    • The Council has rejected Mrs X’s application for school transport on the grounds that the home to school distance is under the statutory walking distance but it isn’t relevant in Y’s case because he has a diagnosed SEN;
    • The medical evidence Mrs X has supplied confirms that Y is vulnerable and can act in anger around strangers to protect himself;
    • Y’s GP states that Y could not walk the 2.5 miles to school from his home address;
    • Y was assessed as not being suitable for Independent Travel Training in the previous academic year;
    • The statutory Government Guidance provides that 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;
    • It is not reasonable to expect Mrs X to accompany Y to school due to:
  • Y’s age. Y is 13 years old and a child at this age without SEN would normally have the expectation that they would be able to walk alone to their school. The guidance states the age of the child should be taken into consideration when assessing whether it is reasonable for the Council to expect Mrs X to accompany Y to school.
  • Mrs X has other children who have to be taken to their schools in the morning and collected at the end of the day at the same time as Y. As a result, Mrs X is unable to get all the children to school on time so they would not be attending school for a full day and therefore not accessing a full time education.
    • If Y did not have SEN, he would be able to walk to school unaccompanied leaving Mrs X to accompany his younger siblings to school. It is not a reasonable expectation of the Council to expect Mrs X to accompany Y on his journey to school.
  1. Mrs X’s stage 2 appeal was considered by a Panel. It upheld the decision not to award travel assistance. The Council has not provided me with any minutes or a record of the Panel’s considerations.
  2. The Council sent a decision letter to 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 was no exceptional circumstances to take into account, Mrs X’s application was considered under the ‘distance criteria’. Y lives 2.5 miles from school and so does not qualify;
    • The Council was not judging Y’s capacity to travel alone;
    • It is the 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.
    • However, the Council considered the current health needs of W and agreed to provide a discretionary offer of travel assistance to Y for one term so Mrs X can be in hospital with W to support his recovery.
  3. The appeal letter said this was the last stage of the appeal process and correctly signposted Mrs X to the Ombudsman.

Ombudsman enquiries

  1. The Council told me in response to my enquiries that:
    • It considered the information Mrs X had provided and Y’s EHC Plan when making its decision to refuse school transport;
    • “Although confirmation of the assessment indicates failure to meet the distance criteria but the actual outcome was based on Y’s needs and ability to walk (accompanied as necessary) from home to school. The Council accepts this may not have been communicated effectively to the family to explain the outcome of the assessments.”
    • Mrs X’s family circumstances were considered by the Council. It says that it “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”.
    • “The Council assessed firstly whether [Y] was physically able to walk the distance from home to school, evidence suggests that [Y] is an active individual with little/no concerns about his mobility. The Council then considered if there were any medical needs that would impact on [Y's] ability to walk from home to school. Sensory impairments were also considered and although it does have an impact on the activities/services [Y] can participate, in the evidence also supports his ability to interact with others and use the bus/public transport, although there are instances where it can impact on his behaviour. Based on [Y’s] needs alone the information provided indicated he could walk with an adult from home to School”.
    • Y was approved school transport in the previous two years on a discretionary basis even though he did not meet the eligibility criteria;
    • It was unable to provide me with the decision letters for the last two years;
    • It was unable to provide me with a record/minutes from the stage 2 panel meeting;
    • Over the last two years the Council says it has increased the adherence to the Travel Assistance Policy with greater accountability and consistency;

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Analysis

  1. The original decision and the two appeal decisions of August and October 2018 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 that based on Y’s needs alone the information provided indicated he could walk with an adult from home to school. I have seen no evidence how the Council arrived at this decision. There is also no evidence it then considered whether Mrs X could reasonably be expected to accompany Y. This is fault.
  3. I requested from the Council evidence that it assessed Y’s SEN when making its decision to refuse school transport. The Council told me that although its decision to Mrs X indicates it was based on a failure to meet the distance criteria, the actual outcome was based on Y’s needs. This is fault. Mrs X, or her advocate, could not challenge the Council’s reasoning when they did not know what it was.
  4. The Council was unable to provide me with a 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 Mrs X, the School and his GP said he did. The original officer, Project Manager at Stage 1 and Appeal Panel at Stage 2 all failed to do so. This is fault. The Council’s stage 2 response again referred to transport being refused on the basis of statutory walking distance when Mrs X’s advocate pointed out that this was not relevant to Y’s case.
  5. 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.
  6. The Council says it considered Mrs X’s family circumstances. The stage 1 appeal decision the Council used its discretion to offer Mrs X school transport for one term so that she could be in hospital with W to support his recovery. There is no evidence the Council considered the family’s circumstances after W had recovered from surgery.
  7. There is no evidence the Council addressed Mrs X’s concerns about getting her children who have complex needs to school on time when this was relevant to the reasonableness of her being expected to accompany Y to school.

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. The Council has agreed that within four weeks of my final decision, it will:
    • Apologise to Mrs X and Y for its handling of Mrs X’s 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 Mrs X to submit any further evidence.
    • Provide a detailed decision letter to Mrs X and Ombudsman, setting out its decision, the evidence considered, the rationale for its decision and providing new appeal rights;
    • Pay Mrs X a payment of £250 for her unnecessary time and trouble in pursuing two appeals and a complaint to the Ombudsman due to the flawed initial decision. In addition, the Council should pay the £50 fee Mrs X paid for her advocate at the second appeal and £25 for the doctor’s letter she submitted as supporting evidence.
  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 was fault by the Council in the way it considered Mrs X’s application for home to school transport. The Council agreed to reassess Mrs X’s application, remedy the injustice caused and make service improvements. 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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