Summary: Mrs X complained the Council failed to consider her son Y’s needs when it changed his school transport arrangements.
She said this caused her and her family distress and inconvenience. There was fault in 2019 when the Council did not set up an independent panel to consider school transport appeals in line with the statutory guidance. However, Mrs X did not experience an injustice because the Council has since set up an independent panel which considered and refused her appeal without fault. The Council should now identify other families or carers who were not offered an appeal to an independent panel and invite them to submit an appeal.

The complaint

1. Mrs X complained the Council did not consider her son, Y’s, special educational needs when it set up school pick up/drop off points instead of collecting him from his home.
2. She said this caused her and her family stress and inconvenience.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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)
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.

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How I considered this complaint

8. I spoke to Mrs X and discussed her view of the complaint.
9. I reviewed correspondence shared between Mrs X and the Council, Mrs X’s complaint form, Y’s Education, Health and Care (EHC) Plan and the Council’s policy on school transport.
10. I wrote to Mrs X and the Council with my draft decision and gave them an opportunity to comment. I considered their comments before I made a final decision.

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What I found

Law

11. The Education Act 1996 says councils have a duty to arrange free home to school transport for eligible children.
12. The Act defines eligible children as:
• children aged between eight and 16 years old who live more than 3 miles from their nearest suitable school; or
• children who cannot reasonably be expected to walk to school because of health and safety issues related to their special educational needs or disability.
13. In 2013 the courts confirmed councils do not necessarily have to arrange door to door school transport for an eligible child. It can use pick up points other than at the home, if councils consider the school travel arrangements are "suitable". R (M and W) v LB Hounslow [2013] EWHC 579 (Admin).

Statutory guidance

14. The Home to School Travel and Transport statutory guidance 2014 says councils should regularly review travel policies and arrangements.
15. When deciding if a child cannot reasonably be expected to walk to school because of special educational needs, disability, mobility or because the route is unsafe, councils need to consider whether the child can reasonably be expected to walk if accompanied, and if so whether the child’s parents can reasonably be expected to accompany them. 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.
16. The guidance says councils may, at their discretion, use appropriate pick up points when making travelling arrangements. For travel arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. When assessing route safety, councils should consider a range of risks to the children such as traffic speed and poor vision.
17. Guidance recommends councils implement an appeals procedure for parents who want to dispute a decision about transport arrangements. The first stage of the appeals process should be a review by a senior officer. The second stage should be a review by an independent appeal panel which did not make the original decision.

Council policy in place when Mrs X made her complaint

18. The Council’s home to school travel assistance policy in place when the events Mrs X complained about took place was to base the travel assistance provided on the child’s needs and the most cost-effective options.
19. The policy said the Council should regularly review and amend the travel assistance as the needs of the child changed. Priority was given to travel assistance measures which helped the child develop travel independence skills.
20. If a parent disagreed with a proposed change to travel assistance, the Council had a two-stage appeals process.
21. The first stage was considered by the Council’s Assistant Director. The second stage was considered by a Director from the Council.
22. The Council’s policy was updated in September 2019 and now includes an independent appeals panel at the second stage.

What happened

Background

23. Y is of secondary school age and has been diagnosed with autism.
24. His Education, Health and Care Plan (EHC Plan) states he needs advance warning of any changes to his usual routine.
25. The annual review of Y’s EHC Plan took place on March 2019. The review stated, “[Y] can use strategies to help manage uncertainties… However, when an unexpected change occurs he does struggle.”
26. Since September 2018, Y has received Council arranged transport which collected him from his home and took him to school. Y is an eligible child as he lives more than three miles from his school.

Mrs X’s complaint and appeal in 2019

27. In June 2019, the Council decided Y was suitable for a scheme which introduced collection points for children receiving assisted school transport instead of collecting them from their homes. The Council felt Y would be able to travel up to half a mile to a collection point, accompanied by a responsible adult if required. It said the aim of the scheme was to gradually develop Y’s independence.
28. The Council asked Mrs X to suggest a convenient collection point Y could travel to with an adult accompanying him and invited her to a trial run to prepare Y for the routine change, which was due to take place from September 2019.
    The Council advised it would review the new collection point on an ongoing basis.
29. Mrs X appealed the Council’s decision, saying the road the Council intended to collect Y from was unsafe and neither she nor her husband could accompany him because she had work commitments and her husband had health problems.
    She also said Y would find it difficult to adapt to a new routine.
30. The Council reviewed Mrs X’s appeal at Stage 1 in early July 2019. The Council said it had conducted a risk assessment of all proposed collection points and Y’s EHC Plan and annual review indicated he could adapt to the scheme if given notice. It said in coming to its decision it had reviewed his EHC Plan and recent annual review. The Council told Mrs X she could appeal the decision at Stage 2.
31. Mrs X escalated her appeal to Stage 2 in late July 2019 and it was considered by a Director of the Council. The Council offered Mrs X a collection point that was closer to her home but did not uphold her appeal. Mrs X referred her complaint to the Ombudsman in August 2019.
32. During our investigation, the Council confirmed the appeals process in place when Mrs X raised her complaint was not in line with the statutory guidance. The Council implemented a two-stage appeals process in late 2019 to give Mrs X and other parents the opportunity to present their appeals in person to an independent panel.

A second appeal in 2020, after Mrs X first complained to the Ombudsman

33. After complaining to the Ombudsman, the Council offered Mrs X a fresh appeal with an independent panel, in line with its updated 2019 policy. Mrs X attended the hearing in February 2020 and told the Council that escorting Y to the collection point was having a negative effect on her and her husband’s mental and physical health.
34. The panel found the Council considered Y’s needs and abilities when it decided Y was suitable for the scheme. The panel noted Mrs X’s comments but did not uphold her appeal because she did not provide evidence showing neither she nor her husband could accompany Y to the collection point 0.2 miles from their home.

My findings

35. The Council’s policy and statutory guidance allows it to consider changing travel assistance arrangements based on the child’s needs. In 2019 the Council reviewed Y’s EHC Plan and annual review and decided he could adapt to the new scheme, using a school transport pick-up point, if given notice. The Council considered Y’s needs and made its decision in line with the relevant guidance. There was no fault in the Council’s actions.
36. Statutory guidance required the Council to consider Y’s safety when proposing travel routes. The Council confirmed it conducted a risk assessment before deciding on the road to collect Y from. It also offered to work with Mrs X to find a collection point she and Y were comfortable with. These were satisfactory actions for the Council to take. There was no fault in the Council’s actions.
37. The statutory guidance states that Stage 2 of the appeals process recommends it should be reviewed by an independent panel. The Council reviewed Mrs X’s appeal at both stages in 2019 but without using an independent appeal panel. This was not in line with the statutory guidance and was fault. The Council has now published an appeals policy in line with the guidance. The Council subsequently considered Mrs X’s appeal at an independent panel in 2020 but did not uphold it. As a result, it is unlikely the independent panel would have reached a different decision if it had considered Mrs X’s appeal earlier in 2019. Therefore, she did not suffer an injustice as a result of the Council’s failure to offer her an independent appeal panel in 2019.
38. Statutory guidance says the Council should consider whether an eligible child can travel accompanied by a parent or another responsible adult unless there is a good reason not to. When the Council set up the independent appeal panel in 2020, Mrs X told the panel she and her husband’s work and health issues meant they could not continue taking Y to the collection point, but she did not provide supporting evidence. The panel considered Mrs X’s testimony and decided it was not enough to uphold her appeal. As the Council followed the correct process and considered relevant matters, there was no fault and it was entitled to make this decision.
39. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. Prior to September 2019 the Council did not give parents the opportunity to present their school transport appeals to an independent panel. It is possible some of these parents may have been disadvantaged by the Council’s failure to observe the statutory guidance.
40. As a result of our investigation the Council confirmed it has identified applicants who may have been affected by the lack of independent panel and will allow them the opportunity to have their appeals heard by the independent panel. This is an appropriate action for the Council to take.

Agreed action

41. Within three months of the date of my final decision, the Council has agreed to contact the appeal applicants it rejected in the 12 months prior to the date the Council set up the independent panel and allow them the opportunity to appeal the Council’s decision if this is something they wish to pursue.

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Final decision

42. There was fault in the Council’s actions in 2019, but as the Council held a fresh appeal in 2020, Mrs X did not experience an injustice. There may be a wider injustice to others who had appeals in 2019 and the Council has accepted my recommendations for how to remedy this. There was no fault in Mrs X’s second appeal in 2020. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman