Summary: Mrs X complained the Council offered unsuitable home to school transport for her disabled son. There was no fault in the way the Council reached its view the offer of transport was suitable. There was fault as it delayed reaching this decision and delayed sending her the appeal forms. This caused Mrs X avoidable time and trouble and frustration. The Council has agreed to apologise to her and pay her £100 for the time and trouble caused by the delays in the transport appeal

The complaint

1. Mrs X complains the Council offered home to school transport which was unsuitable for her disabled son, Y, as the length of the journey would impact on his health. As a result, Mrs X has had to transport Y to college three days a week since July 2016. In addition, the Council delayed offering an appeal, the process took too long and the appeals committee failed to properly consider the appeal.

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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 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) Due to the delays involved, I have exercised my discretion to consider what happened regarding the school transport from September 2016.
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. I have considered information supplied by Mrs X and have spoken to her on the phone. I have considered the Council’s response to my enquiries.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision.
8. Under our information sharing agreement, we will share the final decision on this complaint with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

9. Y is a disabled young person with special educational needs and an Education, Health and Care (EHC) Plan. He also has medical needs. He attended a special school 30 miles from his home until July 2018. From September 2018, he attended a mainstream post 16 college.
10. The Education Act 1996 requires councils to arrange free, suitable home to school transport for eligible children of statutory school age (5 to 16). On condition that a parent consents, a council can make alternative arrangements to meet its duty to make travel arrangements. A council could offer the parent a mileage allowance to drive their eligible child to school in lieu of the council arranging a taxi to transport the child.
11. Once a young person enters post 16 education, the Education Act 1996 explains the requirements on councils to provide transport to education settings are different to when they were of statutory school age. Transport provision is not necessarily free. The statutory guidance explains the legislation gives councils the discretion to determine what transport and financial support are necessary to facilitate the young person’s attendance at 16 to 18 education.
12. The Council assesses the home to school transport requirements of children and young people with special educational needs (SEN) and disabilities against a transport banding framework. This places applicants into bands between T1 and T9 with T1 being those who can travel independently and require no transport to T9 which are young people with complex medical needs that may require specialist intervention in transit so require specialist transport and an appropriately trained passenger assistant.
13. Its transport policy sets out that ‘when we are arranging home to school transport, we will try to make sure that your child does not have to travel for more than 45 minutes if they are in primary school; or 75 minutes if they are at secondary school or in Post 16 education’.
14. For those with an EHC plan in post 16 education, the Council’s ‘post 16 transport to education and training policy statement’ sets out that it will offer travel assistance to the nearest school with post 16 provision which offers an appropriate course. The young person must be under 19 years of age when they start the course and where the distance between the young person’s home and the school is more than 3 miles.
15. Where a child is assessed as entitled to transport, parents who are willing to drive their children to school themselves may, in exceptional circumstances, opt to receive a mileage allowance instead of transport being provided by the Council. The mileage allowance is based upon the mileage to and from the school and is based on a standard rate for one trip each way per day.
16. When Y was attending a secondary special school 30 miles away from home, the Council decided he was eligible for free home to school transport. The Council assessed Y as able to travel on shared transport with a personal assistant in place. However, as Y was the only young person on the route, he was taken to school on his own by taxi with a passenger assistant, between March 2014 and July 2016.

What happened

17. In September 2016 the Council added two other young people to Y’s taxi to school. Mrs X says after two weeks Y was so stressed by the journey he became unwell. Mrs X was unhappy with the change in transport arrangements and requested individual transport.
18. Mrs X met with passenger transport in September 2016. The notes of the meeting record the Council’s view was that the journey time would increase by 14 minutes from 51 minutes to 65 minutes and this time would decrease once a new bypass opened. It considered the increase was not significant and would not have a detrimental impact on Y, and the driver and passenger assistant had not raised any concerns. Mrs X did not agree. The Council says Mrs X decided she no longer wanted Y to travel on Council transport and requested transport mileage claim forms. From 1 November 2016 the Council reimbursed Mrs X’s travel costs in line with its home to school transport policy.
19. In November 2016 the Council received two medical letters in support of Y’s application for one to one home to school transport. It responded in December 2016. It said the original pick up time for the taxi would remain the same and it was happy the transport met Y’s needs, if Mrs X chose to use the service. It advised it would tender for a larger vehicle if Y re-joined the transport to accommodate his wheelchair. It noted the driver had carried out a practice run and with changes to the road network, the journey time had reduced to that Y previously encountered when travelling alone.
20. Mr and Mrs X remained unhappy and continued to transport Y themselves taking the mileage allowance from the Council.
21. In September 2017 the Council sought medical advice from one of Y’s consultants. It advised the travel time had not changed due to road network changes but allowed an additional 14 minutes travel time for picking up and dropping off the additional pupils. The consultant considered that, from a clinical perspective, an additional 14 minutes travel time on shared transport would not significantly impact on Y’s health. Mr and Mrs X emailed the Council with concerns it had considered the additional travel time but not the impact on Y’s stress levels of sharing the journey in the taxi. In addition, the Council had contacted only one of Y’s consultants and not all three.
22. The Council responded and advised it had medical advice from two professionals. If Mr and Mrs X wanted more advice sought they should provide the Council contact details. It confirmed the additional 14 minutes journey time allowed for the pick-up and drop off of the other young people.
23. In March 2018 Mr and Mrs X met with a Council manager and stated they wished to appeal the Council’s decision that Y could share transport rather than having individualised transport. In April 2018 they contacted the Council again to ask about the appeal.
24. At the end of May 2018 the Council sent Mr and Mrs X transport appeal forms which they competed and returned in early June 2018. Mr and Mrs X requested a personal budget, paid via direct payments, to transport Y using his own vehicle with a personal assistant to drive him. They requested the costs back since September 2016 for the return mileage, not just one way, and for the time they had taken to transport Y to school.
25. In early July 2018 the Council’s Student Support Appeal Committee heard the school transport appeal. The Council stated it had carried out a thorough risk assessment and both the driver and passenger assistant reported no issues with shared transport. The Council considered the additional time taken was 14 minutes and the Consultant confirmed the increase in travel time was acceptable given his medical needs. It advised personal budgets and direct payments were not in place for home to school transport but it offered mileage payments as an alternative.
26. The committee deferred its decision on the appeal until the next scheduled meeting in October 2018. It required further information including Y’s EHC Plan for his previous and future school/college, details of the family’s total income and benefits for the period of two years the family were claiming ‘to assess the financial status of the family’, details of the chosen post 16 college Y was to attend from the September and of the nearer college available and up to date health information.
27. In September 2018, Y started to attend post 16 provision at a college around 30 miles away from home. Mr and Mrs X transported Y to and from college and received mileage payment from the Council for one journey each way.
28. A Council officer contacted Mrs X in September 2018. They advised her the Council had agreed a week’s extension to provide information for the October appeals committee. Mr and Mrs X sent the Council a copy of Y’s EHC Plan and amended EHC Plan, Y’s health passport and some supporting health letters by the revised date. The Council confirmed the college Y now attended was the nearest suitable college and that the parents were not prepared to provide their financial details as transport was not means tested.
29. At the committee appeal hearing in October 2018 the committee once again deferred its decision. It noted the appellant was not prepared to provide financial information and noted it had received incomplete and late information. It did not say if the Council or Mrs X had provided information late.
30. Following the October 2018 appeal hearing Mrs X wrote to the Council. She clarified she requested a bespoke package, taking into account Y’s medical needs and journey time. There was no suitable college closer to home and at no point was Y offered a closer school to home. The Council had only contacted one of three consultants about Y’s medical needs. In the letter Mrs X confirmed the family’s financial position but stated that transport was not means tested and any decision on the transport should and could not be based on the family’s financial position. A Council officer also confirmed to the appeals committee that the college Y was attending was the nearest suitable college.
31. The committee heard the appeal in December 2018. The committee did not allow the appeal. It considered Y was entitled to transport assistance as he was attending the nearest suitable college. The committee was satisfied Y was assessed as T6 and that Mrs X had received a mileage allowance. It concluded it had no remit to award a ‘personal budget’ through direct payments for Y’s transport.
32. The Council has since given Mrs X a ‘personal transport budget’ to avoid the need to submit regular financial claim forms for the mileage to and from college. It does not cover an amount for the time and trouble to transport Y to college.

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Findings

33. The Council assessed Y as able to share transport. Y initially had one to one transport as no other pupils were on the route. 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. The Council took into account relevant information, including medical information, and considered Y could share transport. It was satisfied the transport offered was suitable. There was no fault in the way the Council reached the decision Y could share transport from September 2016.
34. It was clear Mrs X remained unhappy with the Council’s decision to require Y to share transport. There is no evidence the Council told Mrs X about her right to appeal the Council’s decision until March 2018. This delay is fault.
35. In March 2018 Mrs X requested an appeal but the Council did not send her the forms until May 2018. This is fault.
36. In May 2018, Mrs X appealed the Council’s decision that Y was able to share the taxi. She wanted individualised transport for Y with a passenger assistant or a personal budget to cover the cost of transporting Y to and from school in their own vehicle with a personal assistant to drive them.
37. The delay in holding the appeal meant the appeal spanned Y’s pre-16 and post 16 education. Appeals are generally based on the current situation and looking forward. This appeal related to matters first raised in September 2016 and matters which needed resolving in 2018. The delay therefore caused confusion in the appeal process as it related to Y’s school transport and future college transport.
38. The Council’s appeal committee deferred its decision in July 2018 to allow for further information to be provided about the college Y would attend from September 2018. This was appropriate to establish his transport needs from September 2018. Within its information request, the appeal committee also requested financial information from Mrs X. The Council’s policy for assessing eligibility for school transport for those with special educational needs is not related to income. The Council says its Committee can consider financial circumstances in deciding whether to use its discretion to award transport and so it was not fault to request this information. However, it had not explained why this was needed and stated the information was ‘required’ rather than requested.
39. The next appeal hearing was scheduled for October 2018. The Council’s appeal committee noted the information was late and financial information was not provided and deferred its decision again. This was fault. The evidence shows Mrs X provided the information requested by the extended deadline agreed by the Council and explained why she did not consider it necessary to provide financial information. It was not until December 2018 that the appeal committee decided not to allow the appeal.
40. The appeal committee delayed in reaching its view. This is fault. However, there was no fault in the way it reached its view that the transport offered to Y was suitable and it was not within its remit to offer a personal budget to cover the all the transport costs and costs of a personal assistant. The Council’s appeal committee considered all the relevant information before coming to its decision. It was for the Council to decide whether to accept Mrs X’s request for a personal budget. Its policy did not allow for a personal budget as requested by Mrs X so there was no reason it took so long to tell Mrs X it was not within its remit to award one.
41. The Council offered transport and offered a mileage allowance in line with its policy. It has since offered a personal transport budget to avoid the need for regular mileage claims. However, the delay in reaching a decision has caused Mrs X frustration and time and trouble in pursing her appeal.

Agreed action

42. The Council has agreed, within one month of the date of the final decision on this complaint, to apologise to Mrs X and pays her £100 to acknowledge the time and trouble and frustration caused by the delays in the transport appeal process.

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Final decision

43. I have completed my investigation. There was fault causing injustice, which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman