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Redcar & Cleveland Council (19 006 817)

Category : Education > School transport

Decision : Upheld

Decision date : 10 Aug 2020

The Ombudsman's final decision:

Summary: Ms X complained to the Council following an incident relating to her son, F, in May 2019. She said the Council poorly managed both her complaint and her appeal against F’s home to school transport arrangements. The Council was at fault. The complaint investigation was delayed and flawed. It did not follow its school transport appeal process and delayed convening an independent panel to consider Ms X’s appeal. It meant F had unsuitable transport arrangements in place between May and October 2019. The Council agreed to pay Ms X £4210.65 to remedy the unnecessary mileage costs incurred by taking F to and from school during this period. The Council also agreed to pay Ms X a total of £1660 to recognise the distress, uncertainty, significant time and trouble and inconvenience caused by needing to take F to and from school and for its poor handling of her complaint.

The complaint

  1. Ms X complained about the Council’s handling of her complaint and appeal of her son, F’s home to school transport arrangements following an incident in May 2019. Ms X said the Council’s poor investigation of the matter meant the appeal process was delayed, and F had unsuitable home to school transport arrangements in place between May and October 2019. Ms X said the Council’s handling of the matter has caused distress, time and trouble and unnecessary financial loss.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 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)
  4. 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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How I considered this complaint

  1. I spoke to Ms X about her complaint and considered the information she provided throughout the investigation.
  2. I considered the Council’s response to my enquiry letter.
  3. I considered the outcome of the Independent Home to School Transport appeal panel.
  4. I considered the Home to school travel and transport statutory guidance for councils.
  5. Ms X and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Home to school transport

  1. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
  2. Eligible children are children of compulsory school age who:
    • cannot walk to school because of their special educational needs, disability or a mobility problem; or
    • receive free school meals; or
    • whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B)
  3. The Government recommends Councils have a two-stage appeals process for parents who wish to challenge a decision about their child's eligibility for travel support:
    • Stage one: Review by a senior officer.
    • Stage two: Review by an independent appeal panel.
  4. Government guidance says a parent has 20 working days to ask the Council to review its home to school transport decision. Within 20 working days of the parent’s written request, a senior officer should review the decision and write to the parent with the outcome of the review. This letter should include how the officer has reached their decision and the factors considered.
  5. If the parent remains dissatisfied, they have 20 working days to request escalation to stage 2. Within 40 working days of receipt of the parent’s request the panel should meet and consider both written and verbal representations from the parent(s) and the Council. The panel should notify the parent of the outcome of their review within 5 working days.
  6. The government recommends councils follow this appeal process, but they do not have to. However, as this process is set out within statutory guidance, we would expect Councils to follow it, unless there was good reason to depart from it.

The Council’s Home to School travel policies

  1. The Council’s Home to School travel policy follows the same process as the statutory guidance in relation to appeals.
  2. The Council’s ‘Guide for children, young people, parents and carers’ home to school travel states the Council will take action against any child or young person failing to meet the required behaviour standards. This includes suspending or withdrawing a place on the transport. It says all users must behave in a safe manner which does not threaten health and safety of other passengers. It says all vehicles are fitted with CCTV cameras which it will use to identify poor behaviour or damage. It says all drivers and escorts attend annual safeguarding training. It says the Council will regularly monitor the quality of the transport service it provides.
  3. The Council’s ‘Code of Practice for Drivers’ includes how drivers should report concerns. It says the driver should report all safeguarding concerns immediately to the Transport Office. If the driver experiences any problems or incidents with passengers, they should also contact the office immediately to advise of the problem and seek guidance. The Council has a separate ‘Code of Practice for Escorts’ which contains the same advice.

The Council’s corporate complaints procedure

  1. The Council’s complaints procedure has three 3 stages. Its policy says at stage 1 that where the complaint cannot be resolved quickly or informally, an officer will respond in writing within 20 working days. The officer can extend the response time by 20 working days if the matter is particularly complex.
  2. If the complainant remains unhappy, they can escalate the complaint to stage 2. Stage 2 requires an investigation by a senior officer, and they should respond to the complainant within 20 working days. Where that is not possible, the senior officer should contact the complainant and request an extension of 20 working days.
  3. At stage 3, an independent review panel will hear the complaint and will make recommendations on the matter. The Council will then write to the complainant setting out what action it intends to take. Stage 3 of the complaints process is discretionary, and the Council has the right to refuse a request but must give valid reasons.

What happened

  1. Ms X’s son, F, has autism and learning difficulties. F attends a special school which is 35 miles away from the family home. F receives home to school transport each day on a bus which is provided and paid for by the Council. The bus driver and F’s escort are employed by the Council.
  2. In May 2019 an incident happened outside F’s school on the bus. The driver had waited for another pupil who was delayed. This meant the bus did not leave the school to take F home at the usual time. This left F in a distressed state and as such, the bus driver decided to leave F at the school and left without him.
  3. Ms X called the Transport Manager to find out what had happened. They said the driver had decided jointly with school staff that the safest thing to do was leave F at the school. They said the driver left F with an appropriate staff member.
  4. Ms X complained to the Council about the incident. Ms X said the driver had abandoned F outside the school and left without him. Ms X complained the driver’s actions presented a safeguarding risk to F, and they did not contact the Council in line with policy to seek permission to leave F at the school. Ms X asked the Council to review F’s transport arrangements as she felt it was no longer suitable following this incident. Ms X also asked for a copy of the bus CCTV footage so she could review the incident.
  5. The Council responded at stage 1 of the complaint’s procedure at the end of May 2019. The Transport Manager investigated the complaint. They said they had viewed CCTV from the bus and obtained a statement from the driver about the events. The driver said he left F at the school and then immediately pulled over to ring his manager to seek permission for this action. The driver said the line to his manager was engaged. The Transport Manager said the driver decided not to remain at the school to avoid inflaming the situation.
  6. The Transport Manager said they had referred the matter to the Local Authority Designated Officer (LADO) around the safeguarding aspect of the complaint. The LADO decided the matter did not meet the criteria for further safeguarding action.
  7. The Transport manager said that as F remained at school, it did not constitute abandonment. They said that they were satisfied the decision not to transport F was appropriate and that F was left in an appropriate setting at the school. They reviewed F’s home to school travel arrangements and decided they were acceptable and did not present a risk to F. Therefore, they decided not to change the arrangements.
  8. Following the incident, Ms X withdrew F from the school transport arrangements and between her and her husband, Mr Y, started driving F to school themselves.
  9. Ms X was unhappy with the stage 1 response and submitted a subject access request for the CCTV footage. Upon viewing the footage, she decided to escalate her complaint to stage 2. Ms X said after watching the CCTV and listening to the audio herself, events did not match up to statements given by the driver and the escort. Ms X said the footage showed F became increasingly agitated when the bus did not leave. However, the escort was shown paying him no attention and instead the footage showed them browsing the internet on their mobile phone. The footage then showed the driver instruct F to leave the bus before driving away. The footage showed the driver did not liaise with the school as stated. Further CCTV footage showed the bus did not immediately pull over and therefore the driver did not call their manager as stated. Ms X said she had also spoken with the school who told her F could have travelled on the bus. Ms X said the driver and escort had acted against policy, and the stage 1 investigation was flawed. Ms X said this also meant the LADO’s decision was flawed as they did not have the correct information about what had happened.
  10. In July 2019 Ms X appealed the Council’s decision not to change F’s school transport arrangements. She said after investigating the matter herself, and considering the impact of it on F, the arrangements were not suitable, and she could no longer trust the driver and escort. The Council agreed in mid-July to send the case for the independent transport appeal panel to consider.
  11. In July 2019 the Council wrote to Ms X and said it needed an extension to respond to her stage 2 complaint. It then wrote to her again and said it would wait until the outcome of the transport appeal panel before continuing with her complaint.
  12. Ms X disagreed with the Council’s course of action. She said her complaint and the transport appeal were separate issues and both processes should run concurrently. She said the home to school transport panel was not an investigation therefore she asked the Council to respond to her complaint at stage 2 of the complaints process, as agreed.
  13. The Council responded at stage 2 in August 2019. It agreed that the stage 1 investigation was insufficient and did not look at the accuracy of both the CCTV, the driver statement or the nature of the communication with the school. The Council said however F was left in a familiar environment with school staff who were aware of the situation, therefore it did not agree it was an abandonment. It said the matter did not meet the criteria for a LADO investigation. The Council agreed the driver did not handle the matter in line with policy and accepted communication about the incident on the day was poor. The Council did not offer Ms X a remedy at this point.
  14. Ms X remained unhappy with the Council’s handling of the complaint and asked it to consider escalating it to stage 3. She said there had been unacceptable delays in both handling her complaint and her school transport appeal. Ms X asked if the Council had taken disciplinary action against the driver.
  15. The Council agreed to arrange a stage 3 independent review panel to hear Ms X’s complaints at the start of October 2019. The panel agreed the driver and escort deviated from policy and did not act in line with their duties when they left F at the school. It said the Council’s actions fell well short of reasonable expectations and its handling of the incident was inadequate. The panel said the Council did not view the actions of the driver and escort with enough seriousness and its investigation was inadequate. The panel did not agree the matter presented a safeguarding risk to F as he was left with a member of school staff.
  16. The independent home to school transport appeal panel heard Ms X’s case in October 2019. The panel found the Council failed to follow statutory guidance because it did not review F’s case at stage 1 of the appeal process. The panel said the Council provided conflicting evidence, administrative mistakes and misleading information to the parents around the matter. The panel concluded F’s transport arrangements were not suitable.
  17. Following the outcome of the home to school transport appeal panel the Council wrote to Ms X with its final complaint response and the transport panel’s findings. It apologised for the driver and escort’s behaviour and for the Council’s inadequate investigation into the matter. The Council said aspects of the driver’s training was insufficient for the route to F’s school and the also the passenger group. The Council said it would consider whether disciplinary action against the driver and escort was appropriate. The Council offered Ms X a payment of £300 to recognise the distress caused.
  18. The Council said it has already reviewed its driver and escort training to ensure all staff members are appropriately trained for the route and passengers they support. It also said it would review its home to school transport policy.
  19. Following the independent home to school transport panel’s findings, the Council agreed in November 2019 for a taxi to transport F from home to school, without an escort. This arrangement has since continued.
  20. Ms X remained unhappy and complained to the Ombudsman. She said the Council’s failings had caused her and Mr Y significant financial loss and time and trouble. Ms X said she and Mr Y had transported F to and from school, which amounted to 138 miles per day during the period the arrangement was deemed unsuitable.

My findings

  1. The Council carried out a three-stage investigation into Ms X’s complaints and upheld most of them. Therefore, I have not re-investigated Ms X’s complaints and I have relied on the findings at the stage 3 panel. I have instead summarised the faults and made recommendations to remedy the injustice those faults caused.
  2. The Council accepted the driver and escort deviated from its policy when it left F at the school in May 2019. The driver and escort should have liaised with their manager to gain permission to do this. They did not, and that was fault.
  3. The Council carried out a flawed stage 1 investigation. It did not consult CCTV and it did not properly check the statements from the driver and escort, which were inaccurate and did not include the true sequence of events. This meant the information passed to the LADO was also flawed and they did not have accurate information to base their decision on. This was fault. It caused Ms X distress and the time and trouble needed to obtain and review the CCTV footage herself and escalate the complaint to stage 2.
  4. Ms X has complained that the LADO’s decision the matter did not meet the criteria for further investigation was flawed. While it is accepted that the true events were not passed to the LADO, they based their decision on the fact that F was left at school, with a member of staff. This fact remained the same regardless of the flawed stage 1 investigation. Therefore, I find no fault in how the LADO reached this decision.
  5. The Council delayed investigating Ms X’s complaint at stage 2 because it decided to suspend its investigation until the conclusion of Ms X’s home to school transport appeal. However, the two were separate matters and should have run concurrently. The Council’s decision to suspend its complaint investigation was fault which significantly delayed the conclusion of the complaints’ process. The Council has already apologised for this and offered Ms X £300 to remedy the distress and time and trouble caused by the delay. This is a suitable remedy for this part of the complaint. The Council has already reviewed its procedures to ensure all future complaint issues related to school transport are dealt with separately to school transport appeals.
  6. The Council accepted that it did not deal with Ms X’s home to school transport appeal in line with the statutory guidance, and I have seen no good reason for the Council to depart from the guidance. There is no evidence a senior officer reviewed F’s case at stage 1. That was fault. The Council agreed to send Ms X’s case to be heard by the independent appeal panel in July 2019. However, the panel did not convene until October 2019 which was outside the 40-day timescale set out in the statutory guidance. That was fault. The delay meant F did not have suitable transport in place for the start of the school year and caused Ms X further distress and uncertainty.

Injustice to Ms X and Mr Y

  1. The independent home to school transport panel found F’s arrangement was unsuitable. This meant F had unsuitable transport in place between May and October 2019. The faults caused Ms X and Mr Y significant financial loss and time and trouble, as they provided F’s transport themselves during this time and F’s father needed unnecessary time off work.
  2. Had the Council investigated Ms X’s complaint properly at stage 1, it is likely it would have concluded the arrangement was unsuitable much earlier. The accepted faults as outlined above contributed to delay in providing F with an alternative home to school transport arrangement. Had it not been for Ms X’s tenacity in investigating the matter herself, the matter may not have progressed past stage 1 and the unsuitable transport arrangements might still be place.
  3. The remedy I have recommended below is for quantifiable financial loss incurred by Ms X and Mr Y in driving F to and from school between May and October 2019. I have calculated this remedy using the total mileage Ms X and Mr Y incurred on the 68 days F attended school at 45p per mile as per government mileage payment allowance.
  4. Mr Y needed a significant amount of unnecessary time off work which he spent taking F to and from school. F’s school is a significant distance from the family home. This not only took up a significant amount of Mr Y’s time, but it also impacted on the wider family. It impacted on Ms X and Mr Y’s other children and impacted on the general home and family life. This significant time and trouble is recognised by the remedy recommended below.

Agreed action

  1. Within one month of the final decision the Council agreed to:
    • pay Ms X and Mr Y £4210.65 to remedy the costs incurred taking F to and from school between May and October 2019 when the home to school transport arrangement in place was unsuitable.
    • pay Ms X £1360 to recognise the significant distress, uncertainty and time and trouble and inconvenience caused to the family in taking F to and from school between May and October 2019. This is calculated at a rate of £20 for each day F attended school during this period.
    • pay Ms X £300 to recognise the distress, uncertainty and time and trouble caused by its poor handling of her complaint and for the delay in convening the independent home to school transport panel.
  2. Within six months of the final decision the Council agreed to provide the Ombudsman with an update of the review of its home to school transport policy which it agreed to do following the stage 3 panel.

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Final decision

  1. I have completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman

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