Summary: Ms X complained about the Council’s Education Appeal Panel’s decision to refuse her appeal for transport to school for her disabled child, P. The Council was not at fault. It considered Ms X’s submission but P did not meet the eligibility criteria as he does not attend the nearest suitable school which had places available.

The complaint

1. Ms X complained the Council’s Education Appeal Panel rushed her appeal and wrongly decided there were schools closer to their home than the one her son attends, that could meet his needs.
2. Ms X also complained the Council denied her son travel assistance despite fulfilling the eligibility criteria.
3. Ms X says this has caused her stress and inconvenience.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. For this investigation, I:
• considered the information Ms X provided and discussed the complaint with her;
• considered documents the Council provided, including the documents Ms X and the Council submitted to panel and the clerk’s notes;
• looked at the relevant law and guidance, including the Education Act 1996 and the Home to School Travel and Transport Statutory Guidance 2014; and
• wrote to Ms X and the Council with my draft decision and considered their comments.

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What I found

7. Councils have a duty to make home to school travel arrangements, as they consider necessary, for eligible children to attend their qualifying school. Councils must provide such arrangements free of charge. Councils have discretion to make provision for other children not covered, which they may charge for.
8. ‘Eligible children’ includes children who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
9. 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.
10. The Council’s home to school travel and transport policy sets out the process for appealing decisions on eligibility. An independent officer will review the decision at stage one and send the parent a detailed response. This will explain how the review was conducted, factors that were considered and the rationale for the decision reached. At stage two, a panel considers written and verbal representations from the parent and from officers involved in the case, and again sends the parent a detailed response.

What happened

11. Ms X’s son, P, was due to begin high school in September 2018. In March and May 2018 Ms X contacted four local schools with information about P’s physical disability, asking if the schools could meet his needs. She chose a school (the School) due to its response satisfying her it had a good knowledge of P’s condition. It had a designated special provision for pupils with physical disabilities, and other pupils with P’s condition attended it. It also had a bus service that would mean minimal walking for P.
12. The School was further from the family home than others. Ms X dismissed other closer schools for several reasons, for example because they did not satisfy her they had enough knowledge, or the bus pick-up and drop-off points were harder for P to access.
13. Ms X applied to the Council at the end of June for assistance with travel from home to school for P. The Council assessed the application in July. Its notes show other closer schools had places available. The Council refused the application.
14. Ms X wrote to the Council in August and September asking it to review its decision. She said the School was the only suitable qualifying school for P, explaining why this was the only school that could meet his needs. She gave detail about his physical disability and how this impacted his ability to walk, and explained why the other schools were not suitable. She explained it was unfair for the Council to expect P to walk a long distance to school or to catch a bus.
15. The Council wrote to Ms X in October with the outcome of its stage one review. It explained the application did not meet the qualifying criteria and the original decision stood. It explained there were five closer schools, and the School was not the nearest qualifying school with a place available. The Council explained it did not consider parental preference when considering travel assistance. It explained one of the closer schools had a bus service running straight into the school.
16. Ms X asked the Council to hold a stage two review and sent evidence for the panel to consider including:
• An Occupational Therapy report confirming P tired easily when walking and experienced pain.
• A letter from P’s primary school saying he would find the physical aspects of secondary school more difficult than primary school as he would need to walk further between lessons. This said he tired walking to and from school.
• A letter from a Paediatrician. This said another school was within walking distance of P’s home which would benefit him. Alternatively, the School would support P’s additional needs.
17. The Council’s travel service also sent documents for the appeal panel to consider, including Ms X’s application form and its response to her.
18. The panel met in November 2018. It heard Ms X’s and the Council’s submissions. The panel decided P attending the School was personal preference and it was open to Ms X to send P to a closer school, which could still offer assistance to meet P’s medical needs. The panel members considered there were no exceptional reasons to overrule the policy.
19. The panel wrote to Ms X to tell her it had refused her appeal. It explained:
• the original application for assistance did not meet the eligibility criteria in the Council’s Home to School and College Travel Policy, so it was declined.
• the stage one review process was carried out properly.
• it had considered Ms X’s written submissions, the points of law she referred to and P’s needs.
• there were closer schools that could assist with P’s needs. There were no exceptional reasons to provide P with travel.
• assistance with school travel was not necessary for P to attend school.
20. Ms X was not satisfied with the panel’s decision. She complained to the Ombudsman and told us:
• the panel had not considered her points and evidence.
• the hearing was rushed. Ms X arrived late but the Council officer arrived later.
• she had a list of points and made it clear it was important to put them all across. However the chair kept rushing, stopping and interrupting her.
• P has exceptional circumstances for assistance, due to his physical disability. Walking uphill or upstairs causes him pain and the panel did not consider his condition.
• she disagrees the nearer schools could support P. There was no evidence they could. They would require him to walk further to bus stops in unsafe locations and to walk uphill. The schools lacked knowledge of his needs.
• the school P attends is the only one with a designated special provision for students with physical disabilities, and has a direct bus service which ensures P gets to and from school safely. A medical professional and teacher agreed P should attend this school.
• the Council failed to provide free school transport to P as an eligible child. Its decision may be discriminatory.

Analysis

21. The Ombudsman is not an appeal body and does not decide whether the Council should provide transport for P. My role is to check if the appeal was administered properly. I do this by examining the appeal papers and the notes taken by the clerk during the hearing. If the appeal panel made its decision without fault, I cannot question its decision, no matter how strongly Ms X disagrees.
22. The panel decided the Council had correctly applied its school transport policy to Ms X’s application. The panel noted the Council would have offered P a place at closer schools but Ms X chose a school which was further away. While Ms X felt the panel was rushed, it was fully aware of her reasons for appealing and considered these. The panel considered whether it should use its discretion to deviate from its policy, but decided there were no exceptional reasons to do so. The panel decided P’s school was his parents’ preferred school, not the nearest suitable school. P was not, therefore, entitled to assistance with transport.
23. Ms X gave travel arrangements significant weight when considering suitability of schools for P. However, the nearest qualifying school is determined by whether it can provide education appropriate for the child. Transport arrangements are then considered separately. Where the school is the nearest qualifying school which provides suitable education for the child, the child is eligible for travel assistance if they cannot reasonably be expected to walk to that school because of a disability or mobility problem. Therefore, had Ms X chosen P’s nearest qualifying school, on balance the Council would then have provided travel assistance due to P’s difficulties getting to that school.
24. Ms X chose instead to send P to a school further from home, which she decided could offer additional benefits for him due to its designated provision and existing knowledge. However, this does not mean that nearer schools could not meet P’s needs. The School may be more suitable in Ms X’s view, but this does not mean it is the only suitable option. All schools would be required to make reasonable adjustments to meet needs of disabled students. Ms X disagrees with the Council’s decision, but this does not mean the Council is at fault.
25. The Council, and its review panel, were entitled to decide P was not eligible for travel assistance. The decision was in line with the law, guidance and the Council’s policy. The Council was not at fault.

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Final decision

26. The Council was not at fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman