Summary: There was fault in the Council’s decision to change the pick-up point for Miss B’s son’s school transport. There was also fault in how the Council considered her requests for reconsideration and her complaints. The changed arrangements meant she had to make alternative arrangements to get her son and other child to school. This was time-consuming and expensive. The Council will apologise to Miss B and make a payment to her.

The complaint

1. Miss B complains about the Council’s decision to change the pick-up point for her son’s school transport. She further complains about the way the Council considered her requests for reconsideration and her complaints. She says the Council’s decision has meant that she had to make alternative arrangements to get her son and her other child to school. This was time-consuming and expensive.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

Back to top

How I considered this complaint

6. I considered the complaint and documents provided by Miss B and spoke to her. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Miss B and the Council and considered their comments.
7. 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.

Back to top

What I found

What happened

8. Miss B’s son, X, attends a special needs school outside the Council’s area. He is entitled to free school transport to school.
9. In March 2016 the Council agreed a new transport policy for children with special educational needs. This says the Council will arrange for children to be picked up from agreed designated points or bus stops and where that is not appropriate from home.
10. There was a pilot scheme from September 2016 and then it was rolled out from September 2017. The Council proposed that X should be picked up a short distance from his home address. At that time Miss B’s other child, Y, was receiving treatment for cancer so the Council agreed the bus could pick X up from outside their home. The normal route of the bus was past the house.
11. In September 2018 the Council said it would now expect X to go to the pick-up point. Miss B did not consider that was possible. It was a short distance but X, who was seven, could not walk there by himself as he would not be safe as his behaviour was unpredictable. She could only accompany him if she also took Y with her. Y was still recovering from her treatment and was not awake at the time the bus came for X.
12. There was contact between Miss B and the Council over September 2018. The Council has not been able to provide any record of this. Miss B contacted her MP. After several rounds of correspondence the Council said, in January 2019, that it would take the matter to its special educational needs panel.
13. It was considered at the panel in February. The Council wrote to Miss B’s MP at the beginning of March with the outcome. It said the panel considered all the information obtained from Miss B and the transport team. Having discussed the information, the panel concluded the arrangement that was in place was appropriate and safe.
14. Miss B complained to us. We asked the Council if the Council had had an opportunity to consider the complaint. It told us Miss B needed to appeal to the panel so we referred Miss B back to the Council. The Council replied to Miss B saying it had already been considered by the panel and that her request would now be considered by a senior officer. The senior officer replied at the end of August. The Council’s position was that “It would be an unreasonable draw on public money to ask for an additional escort on the bus to allow for someone to get off of the bus and ring the family’s bell for pick up. The circumstances of the family in respect of this child’s sibling has now taken a positive turn and a pick-up point that is a very short walk from the house is deemed reasonable”. The response referred Miss B back to the Council’s complaint process. When Miss B tried to raise a complaint she was told the process was completed.
15. Miss B renewed her complaint with us.

Analysis

The Council’s policy

16. It is for the Council to decide on its home to school transport arrangements. I have no reason to think that the Council’s introduction of the policy in 2016 was flawed.
17. Statutory guidance says that eligibility for children with special education needs should be assessed on an individual basis to identify their particular transport requirements. There is no dispute here that X qualifies for home to school transport; the issue is around the pick-up point.
18. The Council’s policy refers to an agreed designated pick-up point. It appears that this does not mean agreed with the parents but designated by the Council.

Implementing the policy

19. In implementing its policy a council should not fetter its discretion. By which I mean it should always consider whether there are exceptional circumstances which mean it should deviate from its normal approach. The Council’s policy provides for this in respect of pick-up points saying that where a designated place is not appropriate pick up will be from the home address.
20. The Council accepted in 2017/18 X should be picked up from home. But in September 2018 it decided that pick-up should be from the designated point. It has not provided any written communication with Miss B about this or any copies of any file records of her contact with the Council. This is poor administrative practice and is fault. Miss B was unhappy with the Council’s decision and the Council should have been clear with her what its position was and how she could go about challenging it.

Challenging the decision

21. There is statutory guidance on how parents who do not agree with the Council’s decision on the provision of school transport can appeal. The Council’s own policy on transport for children with special educational needs follows the statutory guidance. It says that parents can request a review of the original decision. That review should be carried out by a senior officer who was not involved in making the original decision. If the parent remains unhappy with the decision then they can appeal to the Special Educational Needs (SEN) Panel. The Panel considers written and verbal representations from the parent. The parent can then complain to the Ombudsman.
22. It was clear Miss B was unhappy with the decision but there is nothing to show the Council told her of her rights of appeal. That is fault.
23. In response to the MP’s correspondence the Council arranged for it to be considered by the panel. The Council has not provided any details of the membership of the panel or copies of the papers before the panel or notes of the consideration and decision making.
24. The reason given for the panel’s decision to confirm the decision was that pick-up from the designated point was “appropriate and safe”. No reasoning was given for the decision.
25. Miss B was not given the opportunity to put her case to the panel either in writing or in person. The lack of information about the panel’s consideration and decision making is also unsatisfactory. All of this amounts to fault and has meant that Miss B did not have a proper consideration of her appeal.

When Miss B complained

26. Miss B complained to the Ombudsman when she had the outcome of the appeal. When we approached the Council it told us that her complaint had not completed the Council’s complaint process. This was wrong as Miss B had completed the appeal process which meant the next step was to come to the Ombudsman.
27. The Council then did not handle the matter well. We referred the complaint back to the Council at the end of April. The Council wrote to Miss B at the end of May referring to the February panel decision and saying that the matter would be referred to a senior officer. It then took three months for the officer to write to Miss B. That reply then introduced new reasoning that there would be a need for a further person on the bus to ring the doorbell for a home pick-up. I do not understand why this would be considered to be necessary as, my understanding is, that was not the arrangement that had been in place previously. All that was required was for the escort to telephone when the bus was a few minutes away and then Miss B could bring X out when the bus arrived.
28. The Council wrongly advised us about the status of the complaint which meant five months delay in Miss B having her complaint considered by us. The approach by the Council at this stage was not in accordance with statutory guidance or its own guidance on how appeals should be conducted.

Injustice and remedy

29. Where there has been fault we have to consider what injustice that has caused to the complainant and what should happen to put that right. The key issue here is whether there was fault in the Council’s decision that X could be picked up from the pick-up point rather than home. I do not consider the Council has provided sound reasons for its decisions on this point and it has not provided reasons to refute Miss B’s arguments about why it was not possible for X to get to the pick-up point.
30. Where I consider the Council has not properly considered a matter and a review process has not been carried out properly I would normally ask the Council to reconsider the matter and to come to a fresh decision. However I do not consider that is appropriate in this case. It is now almost 18 months from when the decision should have been made. Miss B’s circumstances have changed, including her moving to a new house, and the needs of her children will have changed.
31. Because Miss B could not safely arrange for X to be at the pick-up point she drove both children to a classmate of Y who then took her to school. Miss B then drove X to school. I therefore consider the Council should make a payment to Miss B to reflect her costs in taking X to school between September 2018 and when she moved house in early 2020.

Agreed action

32. The Council will apologise to Miss B and pay her £2247 to reflect the costs she incurred. It should also pay her £500 because of the impact these arrangements had on the whole family. It should do this within a month on the final decision.
33. The Council should review the way it considers applications and appeals to address the faults I have identified and ensure it takes account of government and its own guidance when considering appeals in the future. It should tell the Ombudsman of the outcome of that review within two months of the final decision.

Back to top

Final decision

34. There was fault by the Council which caused injustice to Miss B.

Back to top

Investigator's decision on behalf of the Ombudsman