Summary: Miss B complains about the Council’s refusal to provide school transport for her daughter, who has difficulty walking. Miss B says because of the Council’s decision she has had to pay for a taxi to take her daughter to school each day. We find the Council was at fault for considering irrelevant factors when deciding Miss B’s application and appeal. We have asked the Council to make a payment to Miss B and amend its policy. But, the Council’s assessment of Miss B’s daughter’s ability to walk to school was not affected by fault. So, we cannot say the Council’s decision was wrong.

The complaint

1. The complainant, who I will refer to as Miss B, complains about the Council’s refusal to provide school transport for her daughter. Miss B’s daughter has an EHC Plan and suffers from a medical condition which means she cannot walk far. Miss B considers she has been penalised for choosing the school which would provide her daughter with the best education, which is a mainstream school, rather than the special school the Council had recommended she attend. Miss B says she cannot afford to keep paying for a taxi to take her daughter to school. Miss B would like the Council to provide school transport and pay compensation for the money she has spent on taxis for her daughter.

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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 Miss B’s complaint and the supporting information she sent. I have discussed the complaint with Miss B. I have made enquiries to the Council and have considered the information provided by the Council in response. I have also shared a draft version of this statement with Miss B and the Council, and have considered the comments I received in response.
6. 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

Legal background – school transport

7. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances (s508B and Schedule 35B of the Education Act 1996 as amended).
8. Councils must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
9. The relevant ‘qualifying school’ 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 the child may have’.
10. ‘Eligible children’ are defined in Schedule 35B of the Act. It includes:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and,
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
11. Statutory guidance (Home to school travel and transport guidance – July 2014) says eligibility because of special education needs, disability or a mobility problem should be assessed on an individual basis to identify a child’s transport requirements. Usual transport requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to SEN and/or disability.
12. The Council’s SEN Transport Policy says:

Travel Assistance for Pupils with a Statement of SEN / EHC Plan (4.2)

Where the child lives further than the statutory walking distance between home and their specialist provision, travel assistance will be offered. The Council will apply the Department for Education (DfE), distance criteria, for all applications for travel assistance for specialist provision.

DfE recognised walking distances

• Children aged up to 8 years old: Over 2 miles from home to school
• Children aged above 8 years old: Over 3 miles from home to school

Additionally, transport assistance will be provided where the pupil has an SEN /EHC plan and

• has been assessed as requiring transport assistance to access their specialist provision and / or;
• the Council has determined and named the special provision in the statement as being the nearest available special provision that is able to meet the child’s needs and / or;
• the child’s health needs are such that upon written medical advice, (date within the last twelve months) travel assistance is necessary to access their specialist provision.

13. The Policy also has a section on Circumstances when Travel Assistance is not provided. This includes:
• Where parents choose a school which is not the nearest suitable provision which the Council considers to be appropriate to meet the needs of the child or young person (4.41).

What happened

14. Miss B put in an application to the Council for free school transport for her daughter, who was about to start secondary school in September 2018. I will refer to this school as School A. School A is a mainstream secondary school. Miss B’s daughter has an Education, Health and Care Plan (EHCP). The Council wanted to name a special school in the EHCP but Miss B chose School A because she considered it would provide a better education for her daughter. The special school is more than 3 miles from Miss B’s home. School A is within 3 miles. The EHCP does not include provision for school transport.
15. In her application Miss B said her daughter has difficulty walking because of a medical condition.
16. On 20 August 2018 the Council sent to Miss B its decision on her application. The Council said Miss B’s daughter does not qualify for transport because the distance criteria in the Council’s SEN transport policy is not met. The Council said Miss B lives 2.4 miles from School A. The Council added that pupils attending mainstream schools are not eligible for SEN transport assistance.
17. In September Miss B’s daughter started at School A. Miss B has been paying £50 each week for a private taxi to take her daughter to school. Miss B says because of her own work commitments she cannot take her daughter to school each day.
18. Later that month Miss B put in an appeal to the Council against its decision not to provide free school transport for her daughter. Miss B said the Council is penalising her daughter for attending a mainstream school rather than a special school. Miss B again said her daughter has a medical condition, an EHCP and a blue badge.
19. The Council responded to Miss B’s stage 1 appeal in October. The Council did not uphold Miss B’s appeal. The Council said Miss B’s daughter was not eligible for travel assistance. The Council said School A is within 3 miles of their home and an EHCP is only relevant if it includes transport provision or the Council requires a child to attend a school not within walking distance. The Council said there was no evidence of Miss B’s daughter’s medical condition. Also, the Council said Miss B’s daughter does not attend specialist provision.
20. In November Miss B put in a stage 2 appeal to the Council. Miss B said the Council had not considered her daughter’s medical condition. Miss B provided a medical letter from her daughter’s podiatrist to support her appeal.
21. The Council arranged an appeal meeting with Miss B in early February 2019, before writing to Miss B with its decision. The Council again did not uphold Miss B’s appeal. The Council said the choice of School A was parental preference.
22. The Council said another school is her daughter’s nearest school and within walking distance. The Council also said that Miss B’s daughter receives disability living allowance with a mobility component.
23. So, the Council said if the Council paid for school transport this would be double funding from the public purse. In addition, the Council said the evidence suggested the issue of Miss B’s daughter’s physical discomfort was short term and there was a planned solution (insoles) for this.
24. Miss B sent further information to the Council. Miss B said the school the Council referred to did not offer her daughter a school place. Miss B said she could no longer pay for a taxi for her daughter so her daughter would not be returning to school at the start of the next school year.
25. The Council’s Director of Children’s Services then had a meeting with Miss B before sending her a further letter in August 2019. The Director noted that Miss B said her daughter had now received the insoles but this had not made the difference they expected. The Director said if the podiatrist could confirm this the Council would look at this without Miss B having to complete all the forms again. The Director also invited Miss B to provide further information about her daughter’s poor eyesight.
26. Miss B told me she did not provide further information to the Council because she considered the Council already had the information it needed to approve her application.
27. The Council’s response to my enquiries included the following comments:
• The Council’s SEN Transport Policy does not specifically preclude travel to a mainstream school and the Council does have discretion to fund transport to non-specialist provision if distance criteria were met.
• The Council’s position on the relevance of Miss B receiving DLA with a mobility component is not so much explicit Council policy as the Council complying with its duty to undertake proper and responsible husbanding of scarce public resources – if a service user received funding to pay for transport, then it would be inappropriate for the Council to then provide transport funding over and above that.
28. The Council does not accept it was at fault.

Analysis

29. When deciding Miss B’s school transport application the Council was required to consider whether Miss B’s daughter was a child living within walking distance of a ‘qualifying school’ but who could not reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
30. The relevant ‘qualifying school’ 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 the child may have’.
31. The Council says the school Miss B chose, School A, was parental preference and the Council wanted her daughter to attend a special school. But, School A, is named in Miss B’s daughter’s EHCP. Also, the Council’s preference was a school that is further away. The Council has said there is another mainstream school closer to Miss B’s home. But, the Council has not claimed this school better meets Miss B’s daughter’s needs or that places were available.
32. If this was the Council’s view I would have expected the Council to have named this school in the EHCP. So, I am satisfied Miss B has asked for school transport to the relevant ‘qualifying school’.
33. It is accepted that School A is less than 3 miles from Miss B’s home. This means it is within walking distance.
34. So, the question for the Council to consider was whether Miss B’s daughter could reasonably be expected to walk to school because of her special education needs, disability or mobility problem. Statutory guidance says eligbility should be assessed on an individual basis to identify the child’s particular transport requirements.
35. I find there was fault in the way the Council decided Miss B’s application. The Council considered a range of factors when making its decision, not all of which were relevant considerations.
36. The Council told Miss B in response to her application and appeal that SEN transport cannot be provided to a mainstream school. If the Council could not provide SEN transport to mainstream schools then the Council would not have needed to consider any other factors when making its decision. There is nothing in law or government guidance which says the type of school is a relevant consideration when deciding an application for transport to a school within walking distance, for SEN, disability or mobility reasons. The Council can provide SEN transport to a mainstream school and the Council has confirmed this in response to my enquiries. I find the Council was wrong to refuse Miss B’s application for this reason.
37. Also, I find the Council should amend the wording of its SEN school transport policy to make it clear that SEN transport can be provided to both mainstream schools and specialist provision.
38. The Council also considered Miss B’s ability to amend her working hours to take her daughter to school by car and whether Miss B’s daughter could travel by bus. But, the appropriate test is a walking test, not a test of whether a child can travel by car or public transport. The Council could only consider whether Miss B’s daughter could reasonably be expected to walk to School A because of her mobility problem.
39. In addition, the Council considered Miss B’s receipt of DLA with a mobility component. The Council says this money can be used to pay for transport for Miss B’s daughter and if the Council provided free school transport this would be double funding from the public purse. Again, Miss B’s daughter’s entitlement to disability related benefit was not a matter the Council could consider when making its decision. The Department for Education has said in Parliament that being in receipt of this allowance does not necessarily confer eligibility for free school transport but neither does it preclude it if the child is an eligible child. The Council cannot tell Miss B how to spend this money.
40. So, I find the Council’s consideration of Miss B’s application has been affected by fault. I also consider Miss B has suffered an injustice because she has been put to avoidable time and trouble corresponding with the Council about issues which were not relevant to the Council’s decision. It is clear from the application and appeal documents that Miss B was trying to focus the Council on the key issue – her daughter’s ability to walk to school.
41. But, I have also considered whether the Council gave proper consideration to the material issue – whether Miss B’s difficulty walking means she cannot reasonably be expected to walk to school. The fault I have outlined above would not have affected the Council’s decision if the Council considered this issue properly.
42. The Council’s initial decision to refuse Miss B’s application did not include any consideration of Miss B’s comments about her daughter’s difficulty walking.
43. The stage 1 appeal decision addressed this matter to the extent that the Council said Miss B had not provided any evidence of her daughter’s condition. The Council should have given this more detailed consideration and asked for further information.
44. With her stage 2 appeal, Miss B provided a letter from a podiatrist to support her appeal. I am satisfied the Council considered this information as part of its consideration of Miss B’s stage 2 appeal. The Council said the evidence suggested the issue of Miss B’s daughter’s physical discomfort was short term and there was a planned solution (insoles) for this.
45. The information does not suggest the Council’s stage 2 panel was at fault for the way it considered Miss B's daughter's ability to walk to school. So, I find the stage 2 appeal decision puts right the Council’s initial failure to consider this issue properly.
46. Miss B later told the Council that the insoles had not helped. My view is the Director of Children’s Services’ response – to invite Miss B to provide further information about this for the Council to consider – was reasonable. The Director also explained that Miss B would not need to go through the application and appeal process again. This was a suitable response from the Council.
47. Miss B says she did not provide any further information because the Council had all the information it needed to make a decision. But, my view is the Council was entitled to ask for more information because the situation had changed from when the podiatrist wrote their letter.
48. It is open to Miss B to provide this information to the Council now. I would expect the Council to consider this information without Miss B needing to go through the application and appeal process again. Miss B may complain to us again if she considers the Council has not properly considered any new information she provides.

Agreed action

49. The Council was at fault and Miss B suffered an injustice as a result. I recommend that within two months of the date of my final decision, the Council:
• Pays Miss B £100 for her time and trouble caused by the Council taking into account irrelevant considerations when deciding her school transport application and appeal; and,
• Reviews and amends the wording of the Council’s SEN Transport Policy to make it clear that SEN school transport is provided to mainstream schools and specialist provision.
50. The Council has agreed to these recommendations.

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Final decision

51. There was some fault by the Council which caused Miss B an injustice. The Council has agreed to make a payment to Miss B and review its policy to put this right. But, the Council’s fault did not affect the Council’s decision not to provide school transport. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman