Summary: Mrs B complains about the Council’s refusal of home to school transport assistance for her disabled son. The Ombudsman finds the appeal process followed by the Council was not in line with statutory guidance. Mrs B did not have the opportunity to make her representations to an independent appeal panel in person. The Council has agreed to arrange an independent appeal panel hearing
for Mrs B and to make a payment to her to acknowledge the time and trouble she has been put to. That will provide a satisfactory remedy for the complaint.

The complaint

1. The complainant, whom I shall call Mrs B, complains the Council wrongly refused free home to school transport for her son, C, who has special educational needs (SEN). She says he cannot travel safely to school without this provision.

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. 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. 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)
5. 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

How I considered this complaint

6. I considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and took account of the information it provided in reply. I provided Mrs B and the Council with a draft of this decision and considered all comments received in response.

Back to top

What I found

Legal and administrative background

7. S508B and S508C of the Education Act 1996 (‘the Act’) make provision for local authorities to ensure that suitable travel arrangements are made where necessary to facilitate a child’s attendance at school. Schedule 35B to the Act defines eligible children and includes the Council being required to provide free travel arrangements for children “who cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs or disability”. It says eligibility for such children should be assessed on an individual basis to identify their particular transport requirements. Usual transport requirements such as statutory walking distances should not be considered when assessing the transport needs of children eligible due to SEN or disability. Regarding accompaniment, the guidance in deciding whether a child cannot reasonably be expected to walk it will need to consider if the child could reasonably be expected to walk if accompanied and if so whether the child’s parent can reasonably be expected to accompany them. Factors such as the age of the child and whether one would normally expect a child of that age to be accompanied may need to be taken into account. The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.
8. Statutory guidance on home to school travel and transport includes reference to the review and appeal process. This sets out that a Stage 1 review should be undertaken by a senior officer and that the decision should include a setting out of how the review was conducted, what factors were considered, and the rationale for the decision reached. A Stage 2 review should consider written and verbal representations from the parent and officers involved in the case, and appeal panel members should be independent of the original decision making process and suitably experienced to ensure a balance is achieved between meeting the needs of the parent and the local authority, and that road safety requirements are complied with and no child is placed at unnecessary risk.

What happened in this case

9. Mrs B’s son C was due to move from primary school to secondary school in September 2019. C has autism and attention deficit hyperactivity disorder, and Mrs B says he also suffers from asthma. He is impulsive, has no awareness of danger and can run into the road. Mrs B says he is affected by noisy environments. At school and at home he has one to one support and cannot travel without being escorted. C has two siblings who were due to start school in September 2019 and Mrs B said she could not get everyone to school on time herself without being late every day. She is a lone parent and she does not drive. The family walks, takes taxis or uses public transport. C had transport provided by the Council when at primary school. Mrs B applied to the Council for travel assistance from home to secondary school to begin in September 2019. On her application she explained about her son’s disability-related needs and the family’s circumstances.
10. The Council’s travel assistance ‘panel’, comprising the SEND Travel Assistance Officer and the Travel Assistance Co-Ordinator, decided that home to school transport would not be provided and that Mrs B would need to find other solutions to take her children to school. The Council says in making this decision the travel assistance officer considered both the mileage, which at 0.8 miles is lower than the statutory walking distance of three miles, but also whether the child’s SEN needs were such that Mrs B would not be able to take him to school by walking or by public transport.
11. The Council notified Mrs B of its decision to refuse her request and of her right of appeal. Mrs B wrote back requesting appeal and the Council reviewed it before responding. In its response it said that it supported the panel view that with correct strategies in place Mrs B would be able to make the journey to and from school, a journey of 11 minutes (including three minutes on a bus) and suggested she ask the school to support her with strategies when travelling with her son to help her manage the journey. Regarding the younger children it suggested Mrs B explore breakfast and after-school club options and the support of family and friends to help manage this.
12. Mrs B was advised of her right to go to a stage 2 appeal, and she requested this. The review was carried out by the Director of Health and Adult Services. The appeal was not upheld, and in its response to Mrs B the Council said C was nearly 11 and although he had difficulties travelling he would gradually begin to need to become more independent in this, and it was not deemed unreasonable to expect a parent to accompany him on the 17 minute walking route notwithstanding the presence of other children in the family. The Council says there was no information provided to suggest that C could not walk safely for 15-20 minutes to school, particularly as it had been suggested that Mrs B could ask the school for strategies to manage this, and transition planning would be in place between primary and secondary schools.

Analysis

13. The Council’s home to school travel assistance policy applied in this case sets out a review process at which the stage 2 review is carried out by the Assistant Director of Adults and Older People’s Services. This is contrary to the statutory guidance which refers to a panel process. While councils do not have to follow the recommended model, they must take account of the statutory guidance and have a good reason for departing from it; they should be able to demonstrate good standards of decision-making and the process should be transparent, showing the rationale for decisions with reference to the evidence seen, relevant law and council policy.
14. The Council considered the school transport appeals it received on a case by case basis but accepts that while parents had an opportunity to provide written evidence and submissions in support of their appeal, they did not have the opportunity to make personal representations. That was fault.
15. The Council started a formal consultation on a new travel assistance policy in January 2019 and concluded this in March 2019. The revised policy was updated in line with statutory guidance in September 2019 and now sets out a stage 2 appeal process that includes an independent appeals panel, in line with the statutory guidance.

Agreed action

16. Responding to my enquiries on this complaint, the Council has acknowledged that Mrs B was not afforded the opportunity to make representations in person in order to appeal the decision and, given her objections to the process followed and the decision reached, it has offered to arrange a fresh appeal, to be considered at its first independent appeals panel meeting. Mrs B will have the opportunity to submit any written supporting evidence or information in advance of the meeting and information will also be gathered from C’s current school, which will be presented to the panel. Mrs B will be invited to attend the panel meeting, with a supporter should she wish, to present her views in person. The panel will hear from Mrs B and Council officers, review the information and reach a decision as to whether to uphold or reverse the decision to refuse the application for assisted travel.
17. This action, together with the revision of the Council’s policy now completed to reflect statutory guidance, will for the most part address the injustice caused to Mrs B by the identified fault in this case. I recommended that the independent appeal panel should be convened to hear Mrs B’s case within four weeks of the date of the decision on this complaint.
18. In addition, in recognition of the time and trouble Mrs B has been put to in pursuing this matter, I recommended that within four weeks of the date of the decision on this complaint the Council issues her with an apology and pays her £100.
19. The Council agreed to my recommendations.

Back to top

Final decision

20. I have completed my investigation on the basis set out above.

Back to top

Investigator's decision on behalf of the Ombudsman