Summary: The complainant alleges the Council wrongly refused to renew a personal travel budget to take her two children, who have special needs, to school. The Council was willing to reconsider its decision and to seek further information from one of the children’s schools. The Council has now agreed to provide the complainant with a personal travel budget for one child. The Ombudsman is satisfied that this resolves the complaint.

The complaint

1. The complainant, who I refer to as Ms X, has two children, whom I refer to as Child B and Child C. Child B attends secondary school; Child C is at primary school and he has an Education, Health and Care (EHC) Plan because of his special educational needs (SEN).
2. Ms X’s complaint is that the Council failed to consider properly her request for an increase in her personal budget to transport her two sons to their respective schools. Ms X used to receive such a budget and used it to take both her children to school by taxi. But the Council arranged a place on a school bus for Child C and said that Child B was not entitled to help for school transport.
3. However, the complainant has been unable to make use of the place on the school bus for Child C. This is because Ms X says she has to escort Child B to school and the school bus picks up and returns Child C at times which are not compatible with this.

The Ombudsman’s role and powers

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. We refer to this as ‘injustice’.
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. 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

7. During the investigation, I have:
• considered Ms X’s complaint to the Ombudsman;
• sent enquiries to the Council and considered its response;
• considered relevant legislation and statutory guidance.
8. The final statement will be sent to the Office for Standards in Education, Children Services and Skills (OFSTED) in accordance with the arrangement the Ombudsman has to share findings with this organisation.

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What I found

Relevant legislation

9. The Education Act 1996 (as amended) requires local authorities (councils) to make home to school travel arrangements for “eligible children” to attend their nearest “qualifying school”. This is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs (SEN) the child may have.
10. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements if they consider this is “necessary” (or that the Secretary of State directs) to facilitate the attendance of pupils.
11. When a council finds it is ‘necessary’ to provide transport for the pupil under section 508F, then the transport must be free of charge (Education Act 1996 section 508F(4)).
12. If a local authority does not consider it ‘necessary’ to provide transport under section 508F, it may still choose to pay some or all of the reasonable travel costs under section 508F(8).
13. Eligible children include those who:
• Cannot reasonably be expected to walk to the nearest suitable school because the nature of the route is not safe to walk.
• Live over the “statutory walking distance” from school. This is two miles for children under the age of eight, and three miles for children between the ages of eight and sixteen. For children considered to be from a ‘low-income’ family, which includes those receiving free school meals, the statutory walking distance is two miles for children between the ages of eight and sixteen.
• 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.
14. The application of a transport policy in relation to a disabled young person engages the Equality Act 2010. Councils must have regard to the need to advance equality of opportunity to access education between persons with a disability and those without.
15. The Department for Education has published the document “Home to school travel and transport guidance - Statutory Guidance for local authorities 2014” (the statutory guidance).
16. Where a parent wishes to review a decision on school transport, the guidance recommends councils should provide a right of review and then an appeal to an independent appeal panel. Both the review and the appeal decision should set out:
• the nature of the decision reached;
• what factors the Council considered;
• how it conducted the review;
• information about other departments and / or agencies the Council consulted as part of the process;
• the rationale for the Council’s decision.
17. The Council has a home to school transport policy which it publishes on its website. This contains a two-stage appeal process for parents who want to challenge a decision about their child’s eligibility for transport or the transport arrangements offered. The first stage involves a review of the decision by a senior officer. The second stage of the process involves a panel of three senior officers.
18. The statutory guidance also says:

‘With regards to pick up points, local authorities may, at their discretion, use appropriate pick-up points when making travel arrangements’.

19. The Council’s policy on multiple pick-up school transport says:

‘Children and young people will be picked up and dropped off at a convenient location, within a reasonable distance from their home, in many cases from recognised bus stops. A home pick up and drop off will only be made where it is deemed essential due to the child and young person’s significant needs.’

20. The statutory guidance on school transport states at paragraph 18:

‘The general expectation is that a child will be accompanied [to the designated bus pick-up point] by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so’.

Events of this complaint

21. Ms X used to live abroad in Spain. Both Child B and Child C were diagnosed with autism in 2012 when living abroad. Both attended a special school in Spain.
22. Ms X returned to England in October 2014 with her two children. Child B and Child C were placed at the local primary school, School E.

Child B

23. In 2015, the Special Educational Needs Coordinator (SENCO) of School E referred Child B to the School Health Service, stating that he had a diagnosis of autism when abroad.
24. In September 2016, an Educational Psychologist assessed Child B. She assessed his language skills as ‘very low’. It was noted that Child B required 1:1 support from a teaching assistant (TA).
25. In September 2018, Child B transferred to secondary school.
26. The Council says that Child B’s case was closed to the SEN department in 2015. Child B does not have an EHC Plan and the Council considers his previous or his current school would have asked for one if it considered this was necessary.

Child C

27. In respect of Child C, in January 2016, the Council issued a draft EHC Plan because of Child C’s special educational needs and the Plan was subsequently finalised.
28. In September 2017, the Council agreed a personal travel budget to enable Ms X to accompany Child C to school while also ensuring Child B’s attendance. The budget was agreed and paid throughout 2017 to 2018, amounting to £2,880.
29. Ms X used this money to pay for a taxi to take and collect her children from school. Ms X does not own a car and she says this was the only way she could ensure both children arrived at school safely and on time.

Events of 2018

30. In September 2018, when Child B transferred to secondary school, Ms X requested an increase in the personal travel budget. The Council then reassessed the travel arrangements for both Child B and Child C.
31. On 17 September 2018, the Council told Ms X that there was a place for Child C on a multiple pick up vehicle. The Council explained that this would reduce the financial cost on Ms X in respect of paying for taxis and would enable her to help Child B to travel independently to his secondary school.
32. The Council also explained that the amount of the personal travel budget requested by Ms X was excessive. The Council considered that, given the change in home circumstances and current routes (and now Child B was at secondary school), it was reasonable to place Child C on the school bus rather than continue with the personal travel budget.
33. Ms X appealed this decision. She explained that she had to accompany Child B to school because of his special needs and she would have to take Child C with her when doing so (Child C cannot be left alone in the house or at a bus stop). Ms X would then have to return home to enable Child C to catch the school bus. But she would not arrive home until about 9am by which stage the school bus would have left.
34. Ms X explained she would have similar problems at pick up time. Ms X asked for the personal budget to be reinstated, even if it remained at the previous level.
35. The Council’s Panel considered Ms X’s appeal. It noted that only Child C had an EHC Plan and was therefore eligible for free school transport. The Panel considered Child B’s position and noted he attended a school some 1.3 miles away and that he finished school at 2.40pm. The Panel considered it was possible for Ms X to collect Child B, if she felt that this was necessary, but also be back on time to pick up Child C from the bus stop.
36. The Panel concluded that, having considered the change in the home circumstances, it was reasonable and more cost effective to place Child C on a school bus rather than continue with a separate personal budget.

Ms X’s comments

37. Ms X continued to disagree with the Council’s recent decision because she says that Child B also has special educational needs and he requires assistance in travelling to school even though his school is not far from home. Ms X says that it is not safe to let Child B travel independently and the fact he does not have an EHC Plan does not alter this fact.
38. Ms X says that she asked Child B’s School, School F, to make a referral for an EHC needs assessment but to date it has not. Ms X is now aware that she can make this request directly to the Council herself.
39. Ms X also did not accept that she could get Child B to school and then be back on time for the school bus for Child C. She also cannot let Child C be at home on his own, so Child C would have to come with her when she takes Child B to his school.
40. In view of Ms X’s comments, the Council agreed to review the situation and Ms X’s personal circumstances. It has now agreed to reimburse the personal travel budget for Child C and this will be backdated to September 2018. It will also pay a personal travel budget for the year 2019/2010.

Analysis

41. The Ombudsman is not another appeal body and he can only consider how decisions were reached by the Council. But I was mindful that Child B, although he does not have an EHC Plan, was diagnosed in Spain with autism and the SENCO at his primary school identified that he had special educational needs.
42. Ms X did previously have a personal budget and that worked well for her and enabled her to take both children to school by taxi, ensuring they arrived at school safely and on time.
43. The Council was right to be concerned that this was an expensive way to take and collect children from school and the Council was entitled to reconsider the travel arrangements, and what it would provide, when Child B started at secondary school.
44. The Council has an obligation to Child C to provide free school transport because he has SEN and an EHC Plan. It provided this from September 2018, by offering a place on a school bus. But the situation with Child B is different and most secondary school pupils, without an EHC Plan, travel to secondary school independently or are escorted by parents at their choice.
45. My concern was that the Council did not have up to date information from Child B’s secondary school about Ms X’s contention that it is not safe for him to travel independently. On that basis, I could not be satisfied that the Council had all the relevant information when reaching its decisions. That amounted to fault and so I asked the Council to obtain this information, and Ms X also provided further information.
46. The Council then reviewed all the information and it decided to allow a personal travel budget for Child C, backdated to September 2018. This amounts to £580 per year and is the equivalent of a yearly bus pass.
47. I consider that this is a fair decision by the Council. It helps Ms X financially to take both children to school safely, and on time, and in a way which she considers is best.

Final decision

48. There has been some fault by the Council. But, I am satisfied that the complaint has been resolved. I have therefore completed my investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman