The Ombudsman's final decision:
Summary: The Ombudsman upholds Mr X’s complaint about the changes the Council made to his son’s transport to school. The Council did not properly assess his son’s needs or communicate with Mr X about the change to the transport. It also unreasonably prevented his son from returning to the transport. To remedy the injustice caused, the Council will carry out a fresh assessment and make a payment to Mr X and his son. It will also review how it keeps records about home to school transport and audit its safe recruitment practices for drivers and passenger assistants.
- Mr X complains the Council changed the arrangements for his son’s transport to school without assessing his needs, consulting with the family or giving any notice. Mr X says this has had a negative impact on his son’s well-being. Mr X also complains about poor communication from the Council about the issue and raises a concern about the Council’s safe recruitment practices.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered the complaint made by Mr X and the documents he provided.
- I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
- I gave Mr X and the Council an opportunity to comment on my draft decision and I considered their responses.
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
What I found
- The Department for Education’s ‘Home-to-school travel and transport statutory guidance’ says councils must “make such travel arrangements as they consider necessary to facilitate attendance at school for eligible children.”
- The guidance sets out which children are eligible for free transport. This includes children who live further away than statutory walking distance (two miles for children under eight; three miles for children between eight and 16). It also includes children who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
- Journeys must be “safe and reasonably stress free, to enable the child to arrive to school ready for a day of study.”
- The Council’s ‘Code of Conduct SEN Transport’ says it will provide eligible pupils with transport which best meets their needs. The Council says it will “take such steps as we consider necessary to satisfy ourselves of the suitability of both the provision and the provider staff.”
- The code of conduct also says:
- Parents will have access to advice and support during normal office hours.
- The Council will ensure drivers and passenger assistants have enhanced DBS checks and are suitable for the post.
- The Council will always tell parents when it makes changes to transport arrangements.
School transport appeals
- The guidance sets out a recommended appeals procedure for councils to follow. It says, “The intention is to ensure a consistent approach across all local authorities, and to provide an impartial second stage, for those cases that are not resolved at the first stage.” Parents may challenge decisions about the transport arrangements offered, their child’s eligibility, the distance measurement from home to school and the safety of the route.
- The Council’s ‘Home to School Travel Exceptions and Appeals Panel Terms of Reference’ say a parent can appeal to the panel when they believe the way transport is being provided is inappropriate for their child’s needs. Panels take place fortnightly. Parents can present information from third parties to support their case.
- A head of service chairs the panel and senior officers from education access, special educational needs and finance also attend.
- Councils must carry out safeguarding checks on those who work with children, including taxi drivers and passenger assistants. This is known as a Disclosure and Barring Service (DBS) check. There are different levels of checks. An enhanced check shows spent and unspent convictions, cautions, reprimands and final warnings, and includes information held by local police which is considered relevant.
- A DBS check has no official expiry date. Checks carried out for previous roles are acceptable as long as the employer confirms the applicant’s identity. The employer must also be satisfied the check is at the right level and type for the role applied for.
- The Council’s ‘Application for a home to school transport badge for drivers and passenger assistants’ says it will accept a previously-issued DBS but will check the identity details match those of the applicant.
- When an applicant has not lived in the UK for at least 20 years or has spent long periods living abroad, the Council requires an equivalent of the DBS check from each country where the applicant has lived. Where this is not available, the applicant must complete a statutory declaration.
- The statutory declaration must be witnessed by a solicitor, magistrate, commissioner or notary.
Changes to school transport
- Mr X’s son, Y, attends a local special school. The school is named in Y’s Education, Health and Care Plan. The school is around seven miles from his home.
- Y is on the autism spectrum. His Education, Health and Care Plan highlights some of what he finds difficult, including:
- controlling his emotions when he becomes stressed and not harming himself;
- communicating what is wrong; and
- coping with changes of routine.
End of school transport provision
- At the end of February 2019, Mr X and his wife decided to transport Y to school themselves. Mr X said Y was losing his hair and had an open wound from repeatedly banging his head to manage his anxiety. Mr X felt Y had regressed emotionally. Mr X attributed this to the change in transport as he says this was the only change in Y’s routine. Mr X had also sought advice from the police about safeguarding checks for staff on the transport which prompted him to remove Y.
- Mr X said the stress of transporting Y themselves had taken a toll on him and his wife. It affected Mr X’s ability to work and contributed to Mrs X’s poor physical health.
- In April, Mr X asked the Council to reinstate the transport to give them some respite. The Council said it would reinstate the transport if Mr X said he now considered it to be suitable, or it would offer him a mileage payment to continue transporting Y himself. It said it would not be right to put Y back on the transport if Mr and Mrs X felt it was not suitable. It also said they had made “very serious allegations” against the transport provider.
- Mr X denies making any allegations against the transport provider and says his only concern was that correct safe recruitment checks had been carried out.
- In response to my enquiries on this issue, the Council said it could not understand why Mr X would want to put Y back on the transport when he says it was causing Y undue stress, strain or difficulty. It said it would be irresponsible to put Y back on the transport in its current form because of Mr X’s concerns. It said it had fulfilled its statutory duty by offering a mileage payment to compensate for the expense of Mr X transporting Y himself.
- Mr X says he contacted the police to enquire if DBS checks had been carried out for the drivers and passenger assistants working for the transport provider. Although the police appear to have been unable to share any information with Mr X, he says he was advised to take Y off the transport.
- In a response to Mr X’s local councillor in May 2019, the Council said its compliance officers checked the contracts were running safely, which included ensuring DBS checks were in place for all staff.
- Mr X said one of the passenger assistants on Y’s transport did not have an up-to-date DBS check. He said the DBS check had been issued for a different role.
- In response to my enquiries, the Council provided a copy of the enhanced DBS check, training certificate and a statutory declaration completed by the passenger assistant. The witness to the passenger assistant’s statutory declaration does not meet the criteria set out in paragraph 20 of this decision.
Changes to school transport
- The Council failed to carry out a satisfactory assessment of the possible impact on Y of any changes to his transport before it made the changes. It has not provided evidence it consulted with any of the professionals involved with Y before making the change.
- The Council did not communicate with Y’s parents or seek their views before making changes to the school transport. The letter referred to in paragraph 25 does not give satisfactory notice of any impending changes and the Council did not follow this up when the arrangements for transport changed.
- There is no evidence of a transition meeting between the provider and the family before the transport arrangements changed. The Council says it has now recognised this was an issue and has introduced a new process to ensure these meetings take place.
- The Council did act in response to the concerns Mr X raised, by providing a larger vehicle and second passenger assistant. However, the transport provider’s risk assessment said Y should travel alone with a passenger assistant. There is no evidence to show how the Council considered this in deciding to change the transport.
- Consequently, Mr X cannot be sure the Council properly assessed the transport as being suitable for Y and this was fault.
- I cannot say with certainty that the deterioration in Y’s well-being is due solely to the change in transport. However, his class teacher’s comments and the therapy report lend weight to the difficulties Mr X says Y experienced because of changes to his journey to school. Mr X says the difficulties mirror those Y experienced when his school transport changed before.
End of school transport provision
- The Council has repeatedly stressed the suitability of the transport offered to Y. Therefore, I consider it was at fault for refusing to allow Y to return to the transport when Mr X asked it to. Mr X would have weighed the reservations he had about the school transport against the impact on the family of continuing to transport Y himself. He decided he was willing to accept the transport while the Ombudsman investigated his complaint. The Council’s decision not to allow Y back on the transport has put undue pressure on Mr X.
School transport appeals
- The Council said a formal complaint overrides the transport exception and appeals process. However, the decision not to consider Mr X’s representations as an appeal meant he missed out on having his concerns considered by an independent panel. This is contrary to the guidance and the Council’s terms of reference and was fault.
- The Council is not at fault for accepting an enhanced DBS check which had been issued for another role. As set out in paragraph 17, DBS checks do not have an expiry date. The Council has discretion to accept an existing check where it is of the correct type for the role applied for.
- However, the Council accepted a statutory declaration which was not witnessed correctly. This was fault. This leads to uncertainty about the suitability of the individual to carry out the role of passenger assistant.
- Within one month of the Ombudsman’s final decision the Council will carry out a thorough assessment of Y’s transport needs, to include input from Mr and Mrs X, the transport provider, Y’s school, his social worker and any therapeutic staff working with him. This assessment will make a recommendation about what transport best meets Y’s needs. A written record of the assessment and recommendation will be sent to Mr and Mrs X.
- If Mr and Mrs X disagree with the recommendation, they will be offered a right of appeal through the Council’s transport exceptions and appeals panel. The panel will be made up of officers who have had no previous involvement at any stage of this complaint. Mr and Mrs X retain the right to approach the Ombudsman at the end of the appeal process if they dispute the outcome.
- Within one month of our final decision, to remedy the injustice caused, the Council will also:
- Apologise to Mr X and Y for the faults identified in this investigation.
- Pay £475 to Y to recognise the impact on him of the change in transport between September 2018 and February 2019.
- Pay £250 to Mr X for his time and trouble pursuing the complaint.
- Pay Mr X £67.50 per week, calculated from 28 February 2019 onwards (excluding school holidays) to recognise the expense incurred in providing transport to school for Y. Payments will continue until there is agreement about future transport arrangements for Y or the appeal process has ended.
- Pay Mr X an additional £50 per week, calculated from 9 April 2019 onwards (excluding school holidays) to recognise the undue pressure caused by the Council’s refusal to allow Y back on the school transport. Payments will continue until there is agreement about future transport arrangements for Y or the appeal process has ended.
- Ensure it is carrying out thorough assessments including consultation with parents before making changes to school transport. Any changes should be communicated in writing before they begin with a full explanation of what is being changed.
- Review the way the home to school transport team keeps records to ensure:
- it documents telephone discussions and meetings with other agencies;
- it retains relevant email correspondence; and
- it notes the rationale for any decision making in a child’s record.
- I uphold this complaint. Mr X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman