Summary: There was fault in the way a Council considered an application for discretionary school transport. The Council should consider the application again, apologise, review its processes and make a time and trouble payment to the complainant.

The complaint

1. Mrs X complains about the way the Council has considered an application for home to school transport for her son, Y, who has complex physical and learning disabilities. In particular, Mrs X complains:
• The Council gave confusing advice about the Council’s transport policy when they were choosing a special school nursery class
• This confusion caused delay
• The Council failed to consider the representations they made in their application properly as the reasoning given for refusing transport did not fit the facts they presented
• The failure to consider the facts properly was repeated on appeal as again the reasons given did not match the information in their application
• The Council failed to consider evidence that Y was not safe to travel without an escort / second adult present in the car due to the risk of aspiration from vomiting.

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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. 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 have considered information provided by Mrs X and the Council including:
• Complaint documents
• Council’s file including internal emails and legal advice
• Transport application and appeal
• The Council’s transport policy for 2017-2019 and it’s new policy issued in May 2019
• Relevant law and guidance:
1. The Education Act 1996
2. Department for Education statutory guidance ‘Home to school travel and transport guidance’ issued in July 2014 (‘The Guidance’)
3. The Chronically Sick and Disabled Persons Act 1970 (CSDPA)
4. Department for Education guidance ‘Home to school travel for pupils requiring special arrangements’ issued in November 2004.
6. I have also spoken to Mrs X by telephone.
7. I have written to Mrs X and the Council with my draft decision and considered their comments.
8. 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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What I found

Law and guidance

9. Section 508B of Education Act 1996 says councils must provide free home to school transport for eligible children of statutory school age to qualifying schools. Y is below statutory school age so this does not apply to him.
10. S.508C of Education Act 1996 gives councils discretionary powers to provide transport where they consider it necessary for the purpose of facilitating attendance of children not eligible under s.508C at any ‘relevant educational establishment’. A ‘relevant educational establishment’ includes a school where the child is a registered pupil. Such transport does not have to be free of charge.
11. S.509A of Education Act 1996 also gives councils discretion to make travel arrangements for children receiving early years education otherwise than in a school if they are satisfied that without this assistance the child would be prevented from attending. ‘Early years education’ means the free childcare entitlement of 15 hours per week (570 hours per year) available to all children above age 3 (or age 2 if they are eligible for certain benefits including disability living allowance).
12. The Guidance says it is for individual councils to decide whether and how to apply their discretion as they are best placed to determine local needs and circumstances. It says councils should engage with parents and ‘clearly communicate what support they can expect from the local authority’.
13. The Guidance recommends councils have a two stage appeal process, first a review by a senior officer and then an appeal to an independent appeal panel that can consider written and verbal representations. Decision letters must set out the rationale for the decision reached.
14. If a Council decides not to provide discretionary transport from its education transport budget, there may be a social care duty under s.2(1)(c) CSDPA to provide ‘assistance to [a disabled person] in taking advantage of educational facilities available to him’. This duty arises where it is ‘necessary’ for the Council to provide a service under CSDPA to meet a person’s needs.
15. The 2004 Department of Education guidance for pupils requiring special arrangements says that Councils:
• Should carry out risk assessments for eligible pupils when considering the form of transport to be used
• Should state the circumstances where special transport may be provided below statutory school age
• Should note ‘very young children do not normally travel independently to school or play group but families should not be adversely affected by having a child with a disability. The assessment of entitlement for very young children should take account of particular needs and individual family circumstances’.
• Should clearly set out in their policy when escorts will be provided taking account of health and safety concerns
• Should indicate the criteria used and show how entitlement will be assessed, the evidence that will be considered and how parents will be informed of decisions.

Council’s transport policy dated 2017

16. The Council’s transport policy in place at the time of the complaint extended the statutory provision under s.508B to children over the age of 4. As Y was below 4 at the time of the transport application the policy did not apply to him. The Council did not have a policy for pupils below the age of 4.
17. The policy did provide for assistance in ‘exceptional circumstances’ to pupils not otherwise eligible where such provision was in the best interests of the pupil. Evidence was required to support such applications from relevant professionals with each case considered on its own merits. The policy did not make it clear that the Council may charge for arrangements made under this policy.
18. The policy provided for a one stage appeal only (this is not consistent with the Guidance).

Council’s policy May 2019

19. The Council amended the policy in May 2019 and added a section about transport to early years provision. It is clear from the Council’s internal correspondence that during the course of Mrs X’s case the Council realised Y’s scenario was not adequately covered in its policy. The new policy says:
• Children below compulsory school age attending the nearest suitable special school to access an early years placement may be provided with transport assistance if exceptional circumstances can be demonstrated, which result in the family being unable to get the child to the placement without travel support (having exhausted all possible alternatives). If discretional support is offered, it will be the most cost-efficient option for the Local Authority. Parent / carers would be expected to make a contribution towards total costs in line with the current parental contribution rate.
20. The Council also updated its exceptional circumstances policy for non-eligible children in May 2019 to say:
• The overriding expectation is that parents should undertake their legal responsibility to get their child(ren) to and from school and as such the Council will need to be satisfied that the parent has demonstrated why they cannot undertake this duty. Work commitments or arrangements for transporting siblings to other schools are not reasons that can be taken into consideration.
• Where spare seats are available on vehicles contracted by the local authority to provide transport to school, these may be allocated to children not entitled to free transport.
21. The new policy provides for a two stage appeal including to an independent appeal panel (this is consistent with the Guidance).
22. Councils are required to consult on their transport policies and the Council carried out an equality impact assessment of the new policy which said there was no adverse impact because:
• The policy ensures transport is provided to entitled students equally
• The policy had a positive impact in that it enabled children to access appropriate education including extended discretionary entitlement for students aged under 5.

Mrs X’s account

23. Y attended a mainstream nursery three days a week. This enabled Mrs X to carry on working in a part-time role. The nursery was conveniently placed for Mr and Mrs X to share drop off and collection between them on their way to and from work. Mrs X says all professionals recommended Y should attend an SEN school for early years and with this in mind the Council assessed Y for an Education, Health and Care (EHC) Plan so he could move to a special school, ideally by January 2019.
24. The family were willing to consider any of three special schools (School E, F and G) and visited these in September 2018. School E and F were in the neighbouring local authority, but were closer to Y’s home by distance. Y also received his health services in the neighbouring authority which would provide continuity of care and mean he was close to medical support if required. School G was the Council’s own special school and was the furthest from Y’s home. All three schools said they could meet Y’s needs.
25. Mrs X says in October 2018 the Council advised it would only provide home to school transport to its own school, School G. Mrs X said this did not match the Council’s policy which said transport was to the nearest school by distance. She says the Council then sought legal advice which confirmed that transport should be provided to the nearest school. Mrs X says the Council told her it was not happy with this response and had referred the matter back to legal. Mrs X complained about the confusion and also the delay this was causing.
26. In December 2018, Mrs X says the Council said it had never had a problem sending Y to a school in the neighbouring authority but she would need to apply for transport under exceptional circumstances and s.509A Education Act, as due to Y being under 4 he was not entitled to transport under the Council’s usual policy.
27. Mrs X was frustrated that this had not been identified at the start and that there had been unnecessary delay confirming the transport policy only to find out it did not apply to Y anyway.
28. Mrs X says as they were happy for Y to attend any of the three schools, they expressed a preference for School E, being the nearest school for transport purposes as well as closest to home, work and medical support. They did not want to have to move Y in future. They named School F (14.5 miles away) as their second preference, again on the basis of distance to comply with the Council’s transport policy. This was the School the Council subsequently named on Y’s EHC Plan.
29. Mrs X told me Y is not entitled to statutory transport until September 2020 and the Council has not confirmed if it will consider School F the nearest suitable school for transport given Y is settled there or whether it will expect Y to move to School E.
30. Mrs X says Y vomits on car journeys and due to the risk of aspiration they have to stop the car and attend to him when this happens.
31. Mrs X believes there is a minibus serving School F run by the neighbouring council which passes close by their home.

The Council’s evidence

32. Internal emails show discussions between the Council’s special educational needs, legal and transport teams about Y’s case. In October 2018 the Council noted School E was the nearest to Y’s home, but it already had transport going to School G, although the duration of the journey would be ‘a concern’ as Y would be the first pick up. A preference would be for parents to transport Y and potentially receive a personal budget up to £5000 per year. The Council could consider the application under its exceptional circumstances policy and the Council had discretion to provide transport under s.509A for early years. The Council had to consider its Equality Act duties, for example if a disabled child had to access special educational provision some distance from home and could not access education if transport were not provided. Advice noted that provision of transport could constitute a reasonable adjustment and there was a right of action against a council should a child not be able to access early years provision which must be available to all.
33. Officers noted Mrs X did not want a personal budget and so had to evidence Y could not access early years education without the Council providing transport, although the transport did not have to be free. Discussions about the sort of evidence that would be needed suggested Mrs X should perhaps obtain a letter from her employer demonstrating her work hours made transporting Y impossible.
34. The Council noted its current policy did not permit charging, but if discretionary transport was provided this would be subject to a contribution in line with post 16 transport (currently £789 per year pro rata).
35. The Council noted transport would be likely to cost £25,000 per year although this would be reduced pro-rata if Y attended part-time. This was an estimate as the placement had not been confirmed.
36. There are emails from Mr and Mrs X to the Council enquiring what sort of evidence they would need to submit to justify exceptional circumstances. The Council said evidence that the provision was in the best interests of the child including evidence from professionals was required. It did not mention evidence from Mr and Mrs X’s employers.

Transport application

37. Mrs X applied for transport on 27 December 2018. The application said:
• Y’s nursery was five miles from their home and meant Mr X could drop Y at 7.30-8am and Mrs X could collect Y at 4.30-5 pm after work which did not significantly disrupt their working hours
• Both employers had been understanding and flexible about Y’s many appointments but Mr and Mrs X did not wish to jeopardise their jobs by having to regularly work outside contracted hours. Attendance at special school would mean a shorter day than the current private nursery and be term-time only while the current nursery arrangement was year round. Mr and Mrs X said this meant they could not manage to transport Y to special school alongside their work commitments. If required to transport Y themselves they would have to reduce their working hours and income and this would cause financial hardship.
• Journey times to the three suggested schools were 30 minutes for School E and 60 minutes for School F and G at peak times.
• Y’s medical needs had to be taken into account and supervision by a passenger assistant would be required due to the risk of aspiration.
• Y could currently use a rear facing child seat but his special buggy could also be used in a wheelchair accessible vehicle.
38. The Council considered the application under its exceptional circumstances policy and said the test to be applied was whether parents could reasonably be expected to transport their child themselves, as well as financial considerations of providing a discretionary benefit. The Council said the cost of transporting Y to school would be £25,000 per year. The Council found the test for support had not been met as Mr and Mrs X had said in their application they could transport Y subject to amendments to their work schedules and while this may be inconvenient the overriding expectation was parents should undertake their parental responsibility to get their child to school. The Council said the test for discretionary support would only be met if the parent had demonstrated they could not undertake this duty. It also found the cost of discretionary transport was not a reasonable use of public funds.
39. Mr and Mrs X appealed in early January. At this time only School F, 14 miles away, had accepted Y. School E had refused a place until Y was age 3, but the Council had asked it to reconsider. Mr and Mrs X again explained they could not transport Y as school start and finish times were within their contracted working hours. They queried the estimated cost of £25,000 given a school had not yet been confirmed and Y was only to attend two days a week. They disputed they had said they could amend their work schedules and argued that the argument it was a parent’s responsibility to get their child to school did not take into account that Y could not attend a local school and they felt they were being discriminated against. They repeated that without transport they would have to reduce work hours and income and this would affect their ability to be able to afford to transport Y. Mr and Mrs X provided a map showing the relevant locations of all three schools, their home and the current nursery.
40. Their appeal was considered by a senior manager under it is said s.509A Education Act. The Council considered that:
• Parents have transport
• One parent works part time
• Parents stated they could work if work schedules were amended
• Parents were making a similar journey currently
• Y could be transported by one parent without the need for supervision.

The Council concluded the original decision making process had been applied correctly and Y was not entitled to discretionary transport.

The EHC plan

41. The Council issued the EHC plan in February 2019 naming School F as the nearest suitable school with places available.

New policy

42. In May 2019 the Council amended its policy to cover children below age 4 and to change the appeal process. An equality impact assessment was prepared which stated the new policy had a positive impact as it ensured transport was provided to all pupils equally and included discretionary provision for under 5’s. The equality impact assessment did not reference the new early years policy for under 4’s or the advice that a failure to provide discretionary transport could potentially be challenged as a failure to provide a reasonable adjustment to a disabled pupil.
43. The new early years policy confirmed transport would only be provided in exceptional circumstances and only to the nearest suitable special school with an early years placement. The policy introduced a financial contribution for this age group.

Complaint to Ombudsman

44. Mrs X said in response to the Council’s appeal decision that:
• They do have transport
• Mrs X does work part-time but her hours fitted into Y’s mainstream nursery hours not the shorter special school hours
• They could amend their work schedules but only by suffering financial hardship, which had not been considered
• If transport was provided they would still need to amend work schedules to be home for pick up and drop off times but this was manageable within the flexibility of work hours permitted by their employers
• They did not make a similar journey to the nursery as this was much closer to their home and drop off and collection times were earlier / later
• Y would need adult passenger supervision because of the length of the proposed journey (14 miles) and the time of day when he would need to travel which meant the journey would last about one hour.
45. I asked the Council why it had decided Mr and Mrs X could transport Y without difficulty when this would impact on their employment. The Council told me parents could transport Y themselves albeit with some inconvenience and non-provision of transport would not prevent Y attending. All parents had to balance childcare with work commitments and these can have a negative impact on the time available for parents to work. The provision of transport in this case would not be a reasonable use of public funds, the Council had to balance discretionary provision against budgetary priorities.
46. The Council said in formulating its policy it had had regard to the Equalities Act 2010 and assessed the impact of the policy in the Equalities Impact Assessment.
47. The Council said that it had found the travel time was significantly less than Mr and Mrs X had claimed being 28 minutes (compared to 25 minutes to School E and 13 minutes to Y’s nursery).
48. The Council told me ‘If transport was provided parents would still need to amend their work schedules to ensure that they were at home 20 minutes before and after the school day to handover and receive Y from transport. This would mean that the maximum additional working time available to parents was 40 minutes per day’.
49. The Council said parents had confirmed Y was safe to travel in a car seat and they transported him three days a week to nursery 5 miles away. The Council therefore did not consider there was a need to obtain further evidence of Y’s medical needs.
50. The Council said it was for parents to express a preference for mainstream if they had not wanted Y to attend a special school and be educated locally.
51. The Council says Y has had a social care assessment in September 2018 but this predated the transport situation. The assessment found no unmet care need. The Council said the test under CSDPA was whether it was necessary for the Council to provide a service, the Council had determined it was not necessary because transport to a nursery setting is viewed as something that all parents have to do.

Analysis

52. Y’s placement is at a school not an early years setting other than a school. S.508C rather than s.509A applies. That the Council has referred to the wrong section of the Education Act has not however affected its consideration of the case as both were discretionary decisions. The Council has correctly considered Y’s case under its exceptional circumstances policy as it had no specific policy for under 4’s in place at the time.
53. Mrs X complains about confusion regarding choice of school and says in the end this did not matter because the Council refused transport anyway. Whether Y is attending his nearest suitable school may be relevant when Y is older as to whether he is eligible for statutory transport.
54. The Council has not advised whether it will accept School F as the nearest suitable school throughout Y’s primary education or whether Y will be expected to move if a place comes up at School E, however Mr and Mrs X would have a right of appeal to a tribunal if the Council sought to change the school named in the EHC plan at that stage (S v Dudley Metropolitan Borough Council [2012] EWCA Civ 346) It would be good practice for the Council’s policy and information to parents to be clear about whether the nearest suitable school for early years will be deemed the nearest school for transport purposes throughout the child’s attendance at the school. Without this information parents cannot make fully informed decisions.
55. The Council does have transport in place to School G and potentially Y may have been able to access a spare place on existing transport if this option had been discussed with Mr and Mrs X and they had chosen that school. School G and F are a similar distance from Y’s home. However, the Council had concerns whether the journey time would make transport to School G unsuitable and when I discussed this option with Mrs X she told me their preference was for Y to be closer to home and his medical team in case of a medical emergency so she felt it unlikely they would have chosen School G as first preference even if transport to this school had been offered.
56. I find the Council has misunderstood Mr and Mrs X’s case in a number of respects and this means there is fault in the decisions the Council reached at first instance and appeal. In particular the Council failed to understand:
• That the shorter school day and school year compared to the private nursery arrangement means Mr and Mrs X will have to reduce their working hours to be able to transport Y to his special school. Mrs X can arrange flexible working and maintain her current hours if transport were provided as this would allow a longer working day.
• The Council has calculated the journey as half an hour and Mr and Mrs X as an hour. Mrs X says this is because they are travelling at peak time.
• In calculating that Mrs X’s working day will only be 40 minutes longer this does not take into account that Mr and Mrs X have to drive to and from school twice per day – a journey of 1 hour by the Council’s calculations and two hours by Mr and Mrs X’s calculations.
• The journey to nursery and the special school are not similar in distance or duration.

The Council’s decision reasons therefore do not fit the facts that were presented. This is fault.

The fault casts doubt on the decision reached.

57. I also find that there was fault in not clearly explaining to Mr and Mrs X that it would be helpful for them to obtain evidence from their employer. This did not alter the outcome of the decision because the Council had already wrongly concluded that taking Y would to school would not require a significant change to working hours, however it would be a relevant matter in future consideration of such cases.
58. I find that it was accepted by the Council and all professionals that it was in Y’s best interests to attend a special school for his early years education instead of remaining in mainstream. The Council, in line with its own advice, should have considered both in relation to Y’s case, and in the development of its early years travel policy, the impact on parents of disabled children of having to transport their children further to early years provision than parents whose children are not disabled. The Council’s equality impact assessment for the new policy made no reference to the potential adverse impact on parents of disabled children even though the Council had received advice that this was a factor the Council should consider and this is referred to in Government guidance dating back as far as 2004.This was fault.
59. The Council decided due to budgetary priorities Y’s transport was not an appropriate use of public funds. It however made this decision based on an estimate of £25,000 for five days provision. The decision should have been made on an accurate figure and based on Y’s pro-rata attendance of two days per week. If the Council or appeal decision maker had used the correct figure they may have reached a different decision.
60. The Council’s appeal process in place at the time was not compatible with the Guidance and Mr and Mrs X did not get the opportunity to present their appeal verbally and in writing to an independent panel. This was fault.
61. Mr and Mrs X have expressed concern about the risk to Y of the length and duration of his journey to school with a sole adult. The Council has not carried out a risk assessment to check if the journey is safe for Y. Just because the family undertake short journeys with Y alone does not mean that it is necessarily safe for Y to travel longer routes unsupervised. The Council needs to consider the individual facts of the case including, if necessary, obtaining professional advice (which as Y attends a special school should be readily available).
62. The Council did not have a policy for early years (under 4’s) in place although there has been Government guidance about this age group in place since 2004. This was fault however the Council has remedied this by producing a policy.
63. The Council’s new early years / exceptional circumstances transport policy says ‘work commitments or arrangements for transporting siblings to other schools are not reasons that can be taken into consideration’. I am not persuaded this approach is compatible with the statutory guidance or the Equality Act. Where a disabled child has to be educated outside their local area due to a need for specialist education this may have an adverse impact on parent’s ability to work or care for other siblings. The 2004 guidance is clear that Councils do have to take any adverse impact into account. Councils should not have blanket policies, this would be fettering their discretion, they must look at each case on its individual facts.

Agreed action

64. Within four weeks of my final decision the Council will retake the transport decision in Y’s case having regard to:
• The facts as Mr and Mrs X have presented them that the current arrangements do cause significant difficulties with their employment and may lead to financial hardship and are a significant change from the previous situation.
• The Council’s Equality Act duties
• The duration of the journey based on the time of day Y is travelling
• The risk to Y of travelling this distance without adult supervision
• The correct cost of transport to the Council based on 2 days per week attendance.

If the decision is not favourable to Mr and Mrs X they should be provided with a fresh right of appeal to an independent panel consisting of panel members who have had no previous involvement in the case.

65. Within eight weeks of my final decision the Council will review its early years travel policy and advice to officers and appeal panel members to ensure:
• It has adequately taken account of Equality Act implications including the adverse impact on parents who have to travel longer distances to access specialist early years placements
• It communicates clear information to parents about its transport policy when a place is not available at the nearest suitable school at age 2 or 3, but a place becomes available at the nearest suitable school later / at key transition points (for example when the child becomes eligible under the Council’s policy or at reception age).
• It does not have blanket policies or fetter its discretion but considers each case on its individual facts including work or caring commitments of parents.
66. If the outcome of the retaken decision is that the Council awards transport support, the Council should provide Mr and Mrs X with a financial remedy for the period they were without transport. If Mr and Mrs X and the Council cannot agree on a suitable figure then Mr and Mrs X can bring this aspect of their complaint back to the Ombudsman to consider.
67. Within four weeks of my final decision the Council will pay Mrs X £300 for her time and trouble in bringing the complaint and for having to go through the process of having the transport application considered again.

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Final decision

68. There was fault in the way the Council considered an application for school transport under its exceptional circumstances policy. This fault casts doubt on the decision the Council has reached. I have completed my investigation because I am satisfied the agreed actions set out above are a satisfactory outcome to the complaint.

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Investigator's decision on behalf of the Ombudsman