The Ombudsman's final decision:
Summary: Mrs X complained about how the Council considered her application and appeal for her disabled son to receive home to school transport. The Ombudsman finds the Council was at fault because it did not follow the statutory guidance. To remedy this, the Council has agreed to apologise, reconsider the application and review its policy.
- Mrs X complains the Council has failed to properly consider the case for her disabled son, D, to have free school transport. She says this has caused financial hardship and disruption by having to make transport arrangements herself.
The Ombudsman’s role and powers
- 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)
- 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 spoke to Mrs X and her husband, Mr X. I considered the points she raised and the documents she provided. I made written enquiries of the Council and considered its response. A draft version of this decision was sent to both parties and comments were invited and have been considered before reaching my final decision.
- 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 Education Act 1996 requires local authorities to provide free home to school transport for ‘eligible children’ to attend their ‘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.
- Eligible children include those who:
- live outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children over eight);
- cannot reasonably be expected to walk to the nearest suitable school because the nature of the route is deemed unsafe to walk;
- 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. Councils should assess eligibility for such children individually to identify their particular transport needs. Councils should not use the usual transport requirements (e.g. the statutory walking distances) when assessing the transport needs of children eligible due to SEN and/or disability.
- The Department for Education has published statutory guidance on this topic (“the Guidance”). The Guidance says that, for a council’s school transport arrangements to be suitable, they must be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. However, the Education Act and the courts have been clear the responsibility for getting a child to school ultimately rests with the parents.
- Where a parent wishes to challenge a decision on school transport, the Guidance recommends councils should provide a right of review by a senior officer 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;
- how the review was conducted;
- what factors were considered;
- information about other departments and/or agencies consulted as part of the process;
- the rationale for the decision.
- The Guidance says the parent should be able to make written and verbal representations to the panel.
The Council’s policy on SEN travel assistance
- This states there are four factors which may determine eligibility:
- Statutory walking distance eligibility.
- SEN or significant mobility problems eligibility.
- Unsafe route eligibility.
- Extended rights eligibility.
- The policy states, “the Council is required to provide free travel assistance for children and young people unable to walk to school because of their special educational needs, disability or significant mobility difficulty”.
- The Council’s appeal process does not allow for parents to make verbal representations.
- D is a child of primary school age. He has a diagnosis of autism and has an Education, Health and Care Plan. The Council previously provided home to school transport, but this was stopped in December 2018 following a review of D’s circumstances.
- Mrs X made a fresh application. The Council refused it. The reason given was that the distance from D’s home to school was only one mile. It referred to the statutory walking distances and its own policy about this. It went on to say, “the same general entitlement for home to school transport applies to pupils aged 5-16 with SEN as it does for other pupils….we have assessed D against walking distance criteria and he is under the distance outlined in the Policy. In addition, we have looked at whether D has a special transport need. We have no evidence to suggest that D is unable to travel to school with a responsible adult”.
- Mrs X requested a review. She told the Council of the difficulties she experienced when trying to take D out on his own. He refused to walk, demanded to be carried and lay on the pavement screaming and shouting. She also had another sibling with SEN that she had to get to school.
- The Council again refused the application as D did not meet the criteria on either distance or special transport need. Mrs B was advised to use a local bus service and seek the assistance of her husband to help with the arrangements.
- Mrs X appealed again. She said the bus was not a viable option and walking was problematic for her because of her joint problems. She submitted medical evidence in support of this. She also explained that Mr X has his own health problems that meant he is unsuitable to accompany D to school.
- Her appeal was considered by the Council’s Independent School Transport Appeal Panel (“the Panel”) in January 2019. Mrs B was not invited to attend. The decision letter set out two reasons for refusal:
- The policy had been applied correctly in previous decisions.
- All of the evidence had been reviewed and the previous decision was correct.
- The minutes I have seen provide a contemporaneous record of what was discussed at the Panel:
- The minutes record the following matters were discussed:
- Reference was made to older siblings being able to help with school to transport as they would not be at college every day.
- D’s headteacher had been contacted and provided information confirming that D could not walk unaccompanied and the arrangements could affect him. One of the panel members commented that “for autism it’s a new experience and perhaps a child has to persevere to build them up to it”
- It was recorded that, “Panel briefly discussed mum and dad’s health issues”. No further explanation although there was a later observation that, “mum missed a lot of physio sessions”.
- The minutes confirmed the original decision was correct as there was no special travel need and D, “does not further qualify on distance because not even a mile”.
Response to my enquiries
- In consideration of this complaint, I raised concerns about three matters to which the Council response was as follows:
The Council did not offer Mrs X the opportunity to present her case verbally to the Panel (as recommended by the Guidance)
- The Council said it did not invite Mrs X to the Panel because this was not considered to be a statutory duty. However, it had reviewed its position and will, in future, invite applicants to either attend in person or contribute via a telephone conference call.
The Panel decision letter did not provide sufficient detail about how and why the Panel reached its decision (as set out in the Guidance)
- The Council accepted the letter should have been more comprehensive and gave a commitment to ensure all future responses include a detailed explanation of the points considered and the conclusion of the panel.
The Council had relied on statutory distance criteria (when it says in the Guidance this does not apply to SEN applicants)
- The Council accepted that the “composition of the letters could have been better”. It said it included the distance criteria as it could be a reason for a successful application but in this case the letters did not reflect this and would be changed in future.
- It is not the role of the Ombudsman to replace the professional judgement of a suitably trained council officer with my own. I cannot consider an appeal of any sort from Mrs X on the facts themselves. Instead, my investigation has considered the process followed by the Council in reaching the decision not to fund D’s home to school transport arrangements.
- I have found fault in three areas.
Lack of clarity about the criteria used for the Council’s decision
- The letter informing Mrs X of its decision to refuse transport assistance was written in such a way that the reader would believe it was based was primarily on distance. The letter went on to say the Council had “looked at whether he had a special transport need” it had decided there was no evidence to support this. This reasoning is both misleading and inadequate. The statutory guidance makes it clear that distance should not be used as a reason for refusing transport in SEN/disability cases. This is fault.
The decision letters were inadequate
- While the first appeal decision letter had more information to support the Council’s position, the letter following the appeal did not. It did not provide any explanation of how and why the decision was made. It did not comply with the recommended standards set out in the Guidance and I therefore find fault.
- To the Council’s credit it has acknowledged these deficiencies and has said it will ensure decision letters are more informative in future. I welcome this.
Lack of verbal representations
- The appeal process followed by the Council did not comply with the recommendation set out in the Guidance. This says the independent appeal panel should consider, “written and verbal representations from both the parent and officers involved in the case and give a detailed written notification of the outcome.”
- In this case, the panel had no direct contact with Mrs X. The minutes show that matters were discussed, such as her elder children being able to help take D to school, without any discussion about whether this was or was not possible with Mrs X. Similarly, the Panel made other statements, such as about Mrs X’s own state of heath, that Mrs X may have wanted to challenge.
- It is for the Council to decide what appeal process to use, having regard to the statutory guidance. But the Ombudsman takes the view that such guidance should be followed unless there is a good reason not to. No such reason has been given. If verbal representations are not permitted, it is even more important that councils carry out proper assessments of individual circumstances, provide clear explanations for its decisions and gather necessary evidence to support robust decision making. The minutes evidence this did not happen here.
- Because of this I find fault.
- By reflecting on this case, the Council has decided that in future appellants would be invited to make verbal representations. Again, I welcome this.
- Where fault has been identified, I must then go on to consider whether this caused injustice to Mrs X.
- While the process was flawed in a number of areas, I accept that if Mrs X was given the opportunity to present her case personally, the panel may well reach the same decision.
- However, I have concluded, on the balance of probabilities that the process followed by the Council in this case was sufficiently defective as to remove Mrs X’s right to a fair hearing of her case.
- The failure to adhere to statutory guidance without good reason, failure to be clear about the criteria at the outset and lack of proper explanation about the decision making by the Panel have created sufficient uncertainty about the Council’s decision-making process to caused Mrs X a significant personal injustice that should be remedied.
- Within one month of my final decision, the Council has agreed to take the following action:
- Apologise in writing to Mrs X for the faults identified in this decision.
- Arrange a new stage two appeal panel hearing, with new panel members, to consider Mrs X’s case and to ensure its process follows the Guidance. If the revised decision is to allow transport assistance, the Council should pay Mrs X her reasonable travel expenses in providing transport to her son since the date of the original stage two appeal.
- Amend the appeals section of its own school transport policy to reflect the Guidance and ensure decision letters comply with this same Guidance.
- The Council was at fault in the way it considered Mrs X’s request for assistance with transport to school for her son. To remedy this, the Council has agreed to apologise, hold another appeal panel and review its policy and practices.
Investigator's decision on behalf of the Ombudsman