Summary: Mrs X complained that the Council failed to consider her application and appeal for home to school transport for her son properly. The Council was at fault in the way it considered the application and appeal. Its home to school transport policy is flawed. It has agreed to arrange a fresh appeal hearing and review and revise its policy.

The complaint

1. Mrs X complained that the Council failed to consider her application and appeal for home to school transport for her 11-year-old son properly. She says it has not taken proper account of her son’s disabilities or her family circumstances. As a result she says she is unable to get all her children to school on time and this is placing her under a great deal of stress.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
3. 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)
4. 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

5. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport. I gave the Council and the complainant an opportunity to comment on my draft decision.

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What I found

6. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school 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 the child may have. ‘Eligible children’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problems.
• children entitled on low income grounds. (Education Act 1996, 508B(1) and Schedule 35B)
7. Statutory guidance ‘Home to school travel and transport guidance’ (‘the Guidance’) advises that under the Act, the definition of disability includes mental as well as physical impairment that has a substantial long-term effect on the ability to carry out normal day-to-day activities.
8. The duty to arrange transport applies where no-one else provides suitable home to school travel arrangements for the child.
9. Councils also have discretion under the Act to offer transport where they consider it necessary to help ensure the child attends school.
10. The Council’s ‘Home to School Transport Policy’ sets out who may qualify for free school transport under two main headings, ‘2. General policy’ and ‘3. Exceptions to the general policy’. Under the general policy the Council provides free transport to:
• pupils who attend their catchment or nearest school and live outside the statutory walking distance from the school; and
• pupils who qualify on low income grounds.
11. The ‘exceptions to the general policy’ in section 3 includes pupils with medical needs and pupils with an Education Health and Care (EHC) Plan, set out as follows.
• Medical needs:
• “If a child has a medical need which prevents them making their own way to school, when accompanied if appropriate, transport will be provided to their catchment school or nearest school providing their application is supported by both their GP and consultant. All applications made on medical grounds will be considered by the transport medical panel. The distance criteria in the general policy above do not apply”.
• Pupils with an EHC Plan:
• To be eligible for transport the pupil must attend the nearest suitable special school or resource base attached to a mainstream school and either
1. meet the distance criteria in the general policy; or
2. “have a medical or physical condition that prevents them walking or using public transport”.
• Pupils with an EHC Plan attending a mainstream school but not in a special resource base, will not be eligible for free transport unless they meet the criteria in the general policy.
12. Under the Council’s policy, parents may appeal to the Appeals Sub-Committee against decisions refusing school transport. The policy says:
• “parents who are unsuccessful in applying for transport can appeal if they consider there are exceptional circumstances”.
13. The statutory Guidance says local authorities should have appeals procedures for parents to follow if they “wish to appeal about the eligibility for their child for travel support”.
14. The Guidance sets out a recommended appeal system including an appeal panel independent of the section of the council that made the original decision. It advises that following the appeal panel hearing the council should send the applicant a detailed written notice of the decision. This should include details of:
• what factors the panel considered; and
• the rationale for the decision reached.

What happened

15. Mrs X lives with her husband, Mr X, and they both work. They have four children aged 18, 15, 11 and 7. All the children attend different educational placements. The eldest has mental health problems. The 11-year-old, Y, has special educational needs and has an Education Health and Care Plan (EHC Plan). He was receiving free transport to his primary school. When he was due to transfer to secondary school, a school with a special needs resource base, in September 2018, Mrs X applied for school transport for him. On the application form she completed the section on special educational needs saying her son had emotional and behavioural difficulties, learning difficulties and speech and language difficulties. She said she was receiving Disability Living Allowance mobility component for him. She also said she needed to provide a lot of help and support to her eldest son, including taking him to and from school.
16. The Council rejected her application. The decision letter said this was because Y does not “live beyond the qualifying distances or have a physical or medical condition that prevents [him] walking or using public transport”.
17. Mrs X appealed. On her appeal form she said:
• Y has an EHC Plan and has learning and communication difficulties
• he has no sense of danger and cannot wait anywhere unsupervised
• he cannot follow instructions, and needs to be taken in and out of school safely
• she has other children who she needs to take to school as well.
18. The statement from the school transport service for the appeal hearing gave the following reasons for refusing the application.
• The school is less than three miles to from the home.
• “The parent has not indicated on the transport application form that there is a physical or medical impairment that would prevent the child walking or using public transport”.
• The family does not satisfy the low income criteria.
• Mrs X is asking for an exception to be made to the policy because of Y’s learning and communication difficulties and because he has no sense of danger.
19. The statement said Y did not qualify under the transport policy and the Council did not consider the circumstances Mrs X presented warranted making an exception to the policy.
20. Mrs X attended the hearing in October 2018. Her appeal was unsuccessful. The decision letter set out the Council’s case and Mrs X’s. It said the Appeals Sub-Committee considered both cases against the transport policy and concluded that the policy had been applied correctly and impartially in this case. It said it took into account all the reasons Mrs X gave to support her appeal. But it refused the appeal because it felt her “reasons were not sufficient grounds to justify making an exception to the Council’s transport policy in this case”.
21. Mrs X complained to the Ombudsman because she felt the decision had not taken account of the impact of her son’s learning and communication difficulties on his ability to get to school by himself. She said it had only focussed on physical disabilities. She also said the Sub-Committee had not taken proper account of her other family circumstances and the difficulties she explained she had in getting all the children to school.

Council’s response

22. In response to Ombudsman’s enquiries the Council said the Sub-Committee did consider Mrs X’s arguments about why her son could not walk to school himself and accepted this was the case. It also accepted it was difficult for her to take him to school because of the demands of transporting her other children. However it said the Sub-Committee felt that Mr X could help with transport.

Analysis – was there fault causing injustice?

23. The Council’s original decision on the application, its statement for the appeal hearing and the Sub-Committee’s decision letter all say Y does not qualify for transport under the Council’s policy because a) he lives less than three miles from the school and b) he does not have a “medical or physical condition” that prevents him from walking or using public transport. These documents also say Mrs X was applying as an exception to the policy. The application and appeal were rejected because the Council and the Sub-Committee did not consider her case strong enough to justify making an exception.
24. This position is based on the Council’s school transport policy which puts the categories of children ‘with medical needs’ and children with an EHC Plan into section 3 as ‘exceptions to the general policy’. In my view this policy is flawed and does not reflect the requirements of the law.
25. Children who cannot reasonably be expected to walk to school because they are disabled, or have special educational needs or mobility problems, are eligible for free transport under the Education Act 1996, even if the school is within statutory walking distance. The child will qualify provided the other conditions are met. So the Council’s policy should include these groups in its core policy, not treat them as exceptions. Mrs X was applying under the category of special needs and disability, not as an exception.
26. Also, the law does not require that the condition preventing the child walking to school has to be physical or medical. The category includes children with special educational needs and disabilities, which may include learning and mental disabilities. So I take the view that the Council’s policy does not comply fully with the law and Guidance.
27. Although not relevant to this case, I consider that there is another flawed aspect of the policy. This is the condition that pupils with an EHC Plan are not eligible under this category if they attend a mainstream school outside of a specialist resource base. The law refers to the nearest suitable school. The Council’s policy should not impose further restrictions not required under the law.
28. The Council has told the Ombudsman that the Sub-Committee did in fact accept that Y’s special educational needs prevented him from walking to school by himself. It says it decided to reject the appeal for other reasons, namely that Mr X could provide the transport himself.
29. The decision letter does not mention any finding about the effect of Y’s special educational needs on his ability to walk to school, or that Mr X could take his son to school.
30. As well as explaining Y’s need for adult support and supervision in getting to school Mrs X provided information about her other family circumstances. The record of the hearing show she told the Sub-Committee that:
• she and her husband both work and they have two other children with special needs
• the eldest son had been banned from school transport and Mrs X has to take him to college while her daughter her younger sibling to school
• the family had to be available to attend to the eldest son in case of an emergency call
• Mr X is a taxi driver for a private hire company which determines the hours he has to work. He starts at 3.00pm and works up to 2.00am.
31. In the notes of the Sub-Committee’s decision-making each member gave their reasons for not considering her circumstances exceptional as follows:
• ‘little evidence of support from dad – taxi-driver’
• ‘dad works evening - could help out in the day’
• ‘dad could help with dropping off during the day’.
32. None of these reasons are given in the decision letter. Nor does the letter explain why the Sub-Committee rejected Mrs X’s arguments about why her husband’s working hours would make it difficult for him to transport Y to and from school. The letter should explain the factors taken into account and the rationale for the decision. The failure to do so is fault.
33. The notes of the hearing and the Sub-Committee’s decision-making show that it considered whether “the appellant’s circumstances are sufficiently exceptional to warrant upholding the appeal”, rather than whether they allowed Y to qualify for transport under the policy itself. The Sub-Committee was not at fault in considering whether there were exceptional circumstances justifying an award of transport. But it should first apply the law properly to see if the applicant qualifies under one of the core criteria. So I consider it was at fault in the way it considered the appeal.
34. Mrs X cannot know what the Sub-Committee would have decided if it had considered the appeal and explained its decision properly. This uncertainty is an injustice to her.

Agreed action

35. The Council has agreed to my recommendation that within one month of the decision on the complaint it will offer Mrs X a fresh hearing to consider her appeal, if possible with different panel members. It should consider first whether Y qualifies for transport under the law and then consider exceptional circumstances. It should consider her reasons for arguing Mr X cannot provide the transport. It should then give a written decision explaining how and why it reached the decision and the factors taken into account.
36. The Council has also agreed that within three months it will review and revise its home to school transport policy so that it complies with the law and Guidance. It should ensure that pupils eligible on grounds that they cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problems are included in the general policy, not as an exception. It should also ensure that the criteria do not focus exclusively on physical disabilities and medical conditions, or exclude pupils on the basis of the type of school they attend.

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Final decision

37. I have found that the Council was at fault in the way it considered Mrs X’s application and appeal for home to school transport. I also find that its home to school transport policy is flawed. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
38. 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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Investigator's decision on behalf of the Ombudsman