Summary: There was fault by the Council in deciding a child’s transport eligibility on mobility and safety grounds without assessing the child’s needs or getting the evidence necessary to make a sound decision. This was fault and caused the family unnecessary distress, expense and inconvenience before the Council reversed its decision. The complaint is upheld. Recommendations for an apology, financial payment and service improvements are made.

The complaint

1. Mr X complains the Council removed door-to-door home to school transport when his child changed schools. In particular, Mr X complains that:
• Transport was discussed at the annual review of his child’s Education, Health and Care (EHC) Plan. The family was told transport arrangements would not change. Shortly before the start of term the Council told Mr X his child had to use a pick-up point at a bus stop. This had not been mentioned previously.
• There was unacceptable delay by the Council in reaching and communicating this decision. The Council received the transport application in March and sent the decision letter in mid-August.
• This timeline left no opportunity to appeal before the start of term.
• The Council did not consider the special educational needs (SEN), mobility, and health and safety of the child using the bus stop.
• The Council’s response was a standard letter about parental responsibility. It did not address the points of concern raised or provide an explanation for the decision.
• The Council did not properly respond to Mr X’s requests for documents about risk assessments and about the Council’s policy.
• While the Council reinstated transport it did not provide an apology or refund Mr X’s expenses.
• There were faults in the appeal, including a failure to consider evidence presented from the school, and to follow the appeal policy.
• The Council said it relied on information at annual reviews for transport decisions, but this had not occurred in this case.
• The policy is not transparent that use of pick up points are used for children with SEN and mobility difficulties and this came as a surprise to parents.
• The Council delayed in responding to the complaint.

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The Ombudsman’s role and powers

2. 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)
3. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended)

4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner (ICO).
5. 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)
6. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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

8. I have considered information provided by Mr X and the Council including:
• Transport forms and decisions
• Internal and external Council correspondence
• The Council’s school transport policy
• The Education Act 1996
• The SEN Code of Practice
• Statutory Guidance on Home to School Travel and Transport
• The Ombudsman’s Focus Report ‘All on Board? Navigating School Transport issues’ March 2017
• The Ombudsman’s Guidance on Remedies.
• The Ombudsman’s Principles of Good Administrative Practice.
9. I have written to Mr X and the Council with my draft decision and considered their comments.
10. 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

Complaint history

11. Mr X’s son, whom I shall refer to as Y, was due to move schools in September 2018. Y has special educational needs (SEN) and an Education, Health and Care (EHC) Plan. Before September 2018 he received free door-to-door transport to school funded by the Council.
12. Records show in 2015 Mr X asked the Council to reassess Y’s eligibility for transport when he reached age eight (when distance rules change). The Council found Y was eligible for transport on SEN grounds.
13. The Council has a separate process for applying for SEN transport. Parents do not have to fill out an online application in the way mainstream pupils do. Instead Council officers complete a form using information from the pupil’s EHC plan. Officers can review transport eligibility at any time and will do so when a pupil moves schools.
14. The SEN Code of Practice (‘the Code’) says transport should only be included in EHC plans in exceptional circumstances where the pupil has particular transport needs (paragraph 9.125 of the Code).
15. The Council’s policy allows for a two-stage appeal: stage one to a senior officer in Children’s Services and stage two to a corporate relations officer. If the corporate relations officer agrees, the complaint will go before a panel within twenty-eight working days.
16. An officer completed a transport form for Y in March 2018 based on information from the EHC plan. The Council later confirmed Y’s EHC plan did not include information about his transport needs.
17. The Officer judged that Y had no need for transport on SEN grounds. The officer found Y was not disabled, could walk if the school was within statutory walking distance, and did not need door-to-door transport. The Officer however also stated Y had severe learning difficulties, severe communication delay, delayed self-help and independence skills, and no awareness of danger needing close adult supervision. A Manager approved the Officer’s view and sent the request for transport on distance grounds to the transport team.
18. Y’s annual review took place in July 2018. Mr X says transport was discussed and he was advised arrangements would be unchanged from primary school. Mr X therefore expected door-to-door transport to continue.
19. The Council did not tell Mr X of the transport decision until 17 August 2018. The letter said that Mr X was to take Y to a bus stop boarding point.
20. Mr X contacted the Council on 23 August to explain that Y needed door-to-door transport on safety grounds. The Council told Mr X he had to complete an online appeal form. Mr X says the Council told him the appeal would be processed within one week, but the Council later said the time frame was twenty working days, as stated on its website.
21. An Officer considered the appeal and recommended rejecting the request for door-to-door transport because Mr X had not given reasons why it was needed. The Officer noted Mr X would need to provide further information about why walking to a boarding point would be unsafe.
22. A Manager approved the decision to reject the appeal. The Council told Mr X his appeal had been unsuccessful on 5 September. The Manager asked the Officer to check with the transport operator after one week whether the arrangements were working. Mr X however did not use the transport but took Y to school himself.
23. The appeal letter said the Council expected parents to supervise children walking to, and waiting at, the boarding point. The Council’s letter did not advise Mr X of the further evidence it would need to reach a different decision.
24. On 5 September Y’s primary school wrote to the Council supporting that Y would not be safe to use a boarding point and asking the Council to reinstate door-to-door transport. The SEN team said they supported the request. The transport team advised SEN colleagues that ‘appeals do not work like this’, there was a form to complete and a process to follow. The Transport Officer said they had looked at the appeal with the Manager the previous day and the Manager was going to refuse the appeal. There is no evidence to show the Officer shared the new evidence with the Manager.
25. Mr X appealed under the corporate complaint process and a Corporate Relations Officer met Mr X to clarify the scope of his complaint on 14 September. The transport team then sought information from the current school about Y’s ability to walk to the boarding point on 20 September. The School responded the same day confirming Y would not be safe to wait at a boarding point and needed two to one support in the community.
26. The Council reversed the transport decision on 24 September and reinstated door-to-door transport from 25 September.
27. Mr X asked the Council to repay expenses for the period he had taken Y to school (sixteen days). The Council referred this request for ‘compensation’ to its insurers.
28. The Council completed the complaint investigation in January 2019. The complaint officer made the following findings and recommendations:
• Use of pick-up or boarding points had been the Council’s practice since 2011 when the transport policy was reviewed and approved by the Cabinet. The use of boarding points is stated in the general transport policy but not in the section for SEN transport.
• There was nothing in the EHC plan about Y needing door-to-door transport. The transport team said Y had previously received transport under the vacant seat scheme, not on SEN grounds.
• Transport decisions are made in August once the Council has received all school forms. This avoids the need to make changes.
• It was doubtful an officer would have told Mr X the Council would deal with his appeal within one week. Twenty working days was the policy.
• Mr X told the investigator he felt it should be obvious from Y’s EHC plan that Y needed door-to-door transport and he felt the policy of boarding points was not communicated and the policy was hard to find on the website
• The following parts of the complaint were upheld:
1. The appeal decision letter should have explained what evidence would be needed to reconsider the decision and given more explanation about the reasons for refusal.
2. The appeal decision maker was not aware of the email from the primary school and should have been made aware as the appeal decision could have been reconsidered on 5 September rather than 20 September.
3. Mr X had found the appeal policy hard to find but the Council had revised the website to make this easier.
4. The SEN transport policy did not mention boarding points, but the main policy did. The Council was considering revising the policy in future.
5. The Council did not sign the appeal decision letter. The investigator found as electronic signatures are available officers should have used them.
6. While EHC plans do not usually refer to transport needs, given Y’s particular requirements it would be appropriate for this to be referenced in his EHC plan. The investigator recommended this also happen in other cases where door-to-door transport was required.
7. Where an appeal is received that suggests information is known to the Council enquiries should be made of other relevant teams before considering an appeal.
• The parts of the complaint that were not upheld were:
1. No fault was found in the original transport decision process because Y’s EHC plan and annual review documentation did not include information about Y’s transport needs. This information was not available to transport decision makers.
2. No fault was found in the use of boarding points, this was in line with approved policy.
3. No fault was found in the annual review process as the Council’s policy to consider transport at reviews was followed in this case.

Analysis

29. The Council’s internal investigation has identified some areas of fault and made recommendations to ensure these errors are not repeated.
30. Where the Ombudsman is satisfied with the Council’s own complaint investigation, or we cannot add to the findings or recommendations made, we would not usually reinvestigate unless we consider the investigation was flawed.
31. I have found the internal investigation was flawed. It looked only at whether officers acted in line with the policy and established practice. It did not consider whether the policy and practice was itself flawed.
32. The law says that Councils must provide free home to school transport for eligible children. This includes children who cannot reasonably be expected to walk to school because of their mobility problems, or because of associated health and safety issues related to their SEN or disability. The statutory guidance says Councils must ‘assess’ if pupils are eligible on SEN / mobility grounds on an ‘individual basis to identify their particular transport requirements’. This puts the onus on councils to ensure they understand the needs of the individual child.
33. The Council tries to do this by reference to pupil’s EHC plans. However, not every child eligible for transport on SEN/ mobility grounds will have an EHC plan, and most EHC plans do not include any reference to transport needs. In this case, and potentially many other cases, the information contained in an EHC plan is not sufficient to make an accurate transport decision. This means the Council’s policy of relying solely on EHC plans for transport decisions is inherently flawed. For the Council’s policy to work, EHC plans and annual reviews would need to consider transport needs in much more depth. Alternatively, the Council would need to gain information about a child’s ‘particular transport needs’ by another means.
34. There is mention in the Council’s 2018/19 policy of officers completing a transport form alongside the EHC plan, however no such form exists in this case. This fact did not prevent transport officers deciding the application without the information necessary to do so.
35. Good administrative practice and the rules of natural justice require councils to act fairly when making decisions about rights and entitlements. Councils should be open and accountable and give people advance notice of decisions that affect them and an opportunity to present their case. This includes explaining the criteria for decision making and giving adequate reasons for decisions. (Ombudsman’s Principles of Good Administration)
36. Mr X did not know the Council was making a fresh decision about Y’s transport eligibility because the Council did not tell him. He did not have the opportunity to put his case before the first decision. The first decision did not explain that the Council had decided Y did not require door-to-door transport or a personal assistant. It did not explain the Council found Y was not disabled and not eligible on SEN grounds. At appeal the Council did not advise Mr X about the evidence needed to support door-to-door transport. This was fault.
37. The statutory guidance puts the onus on councils to assess the individual needs of the child. Once Mr X had explained in his appeal there were safety reasons for needing door-to-door transport, it was for the Council to ‘assess’ Y’s particular needs. It was not for Mr X to provide evidence to prove them. The Council should have sought this information before it decided the appeal. Failure to do so was fault.
38. I find the timing of Council transport decisions is too late as it leaves no room for appeals before the start of term. Many councils make early decisions on eligibility but defer decisions about the exact nature of transport until the summer. This allows time for families to appeal. Leaving decisions about eligibility until August is likely to cause injustice because the Council will be unable to decide appeals until after schools have started back in September.
39. I find the officer interviewed by the complaint investigator was wrong to say there was no prior decision that Y was eligible on SEN grounds. The Council did find Y eligible on SEN grounds in 2015.
40. The statutory guidance does allow the use of boarding points, and it was not fault for the Council to include this in its policy. However, the Council must still establish whether a child ‘cannot reasonably be expected to walk’ to a boarding point or a parent cannot reasonably be expected to accompany their child to the boarding point. I agree it would be helpful for boarding points to be mentioned in the Council’s SEN transport policy as well as the main policy. However, what is most important is that the Council provides clear information and allows families the opportunity to explain their circumstances before reaching decisions on entitlement.
41. When the Council received new evidence on 5 September, which called into question the decisions reached at first instance and appeal, the case was not reconsidered at that point. This was fault. By insisting Mr X complete the stage two process an opportunity to resolve the matter quickly was lost.
42. The stage two complaint/appeal took four and a half months to complete rather than the stated twenty-eight working days. It is unclear when the Council would put the case forward to an appeal panel but clearly where this is merited it should happen in a timely way. Statutory guidance recommends panels are used in all stage two appeals.
43. I find that the Council has not provided a fair remedy for the fault. It has not refunded Mr X for the out of pocket expenses he incurred transporting his child to school in September. The Council has not offered a remedy for Mr X’s time and trouble pursuing the complaint, or for the distress and inconvenience caused to him. I can see no reason why Mr X’s request for a financial payment needs to be considered by the Council’s insurers. Councils can make financial ex-gratia payments as part of their corporate complaint processes and this would be the usual route to remedy low value complaints.
44. Throughout the transport application, appeal and complaint handling I find there was a preoccupation with following the Council’s policy rather than officers using their professional judgement. I am concerned that other children may have been similarly affected if their EHC plans are also defective when it comes to detailing their particular transport needs.

Agreed action

45. Within four weeks of my final decision the Council will:
• Apologise to Mr X for the additional fault I have identified
• Pay Mr X £200 for the distress and inconvenience caused by him having to transport Y to school
• Pay Mr X £100 for his time and trouble pursuing the complaint
• Refund Mr X’s out-of-pocket expenses including mileage and parking costs as follows:
1. Mileage 22 miles per day for sixteen days
2. Parking £6 per day for sixteen days.
46. Within eight weeks of my final decision the Council will review its practice to ensure:
• Families are aware of when their children are being assessed or reassessed for transport eligibility and have an opportunity to provide relevant information about their circumstances before a decision is reached.
• If the mechanism to obtain information is to be the annual review meeting or EHC assessment that officers discuss transport in detail and provide sufficient information to transport officers to support robust decision making. If the Council has a transport form for this purpose it should ensure this is used in all cases and transport decisions are not made in the absence of this information.
• Officers are aware there may be children who are eligible for transport on SEN or disability grounds who may not have an EHC plan and that there is a mechanism in place for such families to make applications on their own initiative.
• That officers understand the onus is on the Council to source evidence to assess a child’s particular transport needs when SEN / mobility grounds are being claimed. I would support the finding by the internal investigator that the Council should make use of information held by other teams, but it should also consider obtaining evidence from third parties such as schools.
• Wherever possible decisions about initial eligibility are communicated in sufficient time for appeals to be heard before transport is due to start or change.
• That decision letters have been improved and clear reasons are now given so families can make informed appeals.
• That stage two appeals/complaints are completed in a timely way and are compliant with the statutory transport guidance.
• The Council should provide a report to the Ombudsman confirming the service improvements it has taken.

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Final decision

47. I have completed my investigation. There was fault by the Council in making decisions about transport eligibility on SEN / Mobility / safety grounds without assessing the child’s needs or obtaining the evidence necessary to make a sound decision. This was fault and caused unnecessary distress, expense and inconvenience before the decision was reversed. The complaint is upheld. Recommendations for an apology, financial payment and service improvements are made.

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Parts of the complaint that I did not investigate

48. I have not investigated whether the Council properly responded to a request for information as Mr X has referred this to the ICO, which is a more suitable agency to consider this matter.

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Investigator's decision on behalf of the Ombudsman