Summary: there is fault in Stoke-on-Trent City Council’s handling of its withdrawal of home to school transport for Ms F’s son who has special educational needs and attends a special needs school. There is also fault in its handling of her appeal against this decision. These faults have caused Ms F injustice in the form of avoidable frustration, distress, uncertainty and lost opportunity. The Council will take the recommended action to recognise this now.

The complaint

1. The complainant, whom I shall refer to as Ms F, says the Council wrongly removed home to school transport provision for her son in July 2019. Ms F’s son, X, is 11 years old and has special educational needs which affect his mobility. She also says the consideration of her appeal against this decision was flawed.

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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. 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

4. I discussed the complaint with Ms F and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. Ms F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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

What should have happened

7. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances.
8. Local authorities 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. ‘Qualifying schools’ include:
• Community, foundation or voluntary schools
• Community or foundation special schools
• Non-maintained special schools
• an independent school for a child with SEN where the school is named in the EHC Plan/statement or is the nearest of two or more schools named.
11. ‘Eligible children’ are defined in Schedule 35B of the Act as:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
• 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
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit in certain circumstances.
12. The Guidance makes clear that it is for each local authority to decide whether and how to provide transport arrangements for children not eligible for free transport and whether to pay all or part of the travel expenses. Schemes may include charging for spare places on school buses used by eligible children.
13. If a school is named in an Education Health and Care Plan it does not automatically mean transport will be provided. The child still has to come into one of the categories of eligible pupil above. But the Guidance advises that eligibility for such children should be assessed on an individual basis to identify their particular 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.
14. The Council’s transport policy statement states that all applications for transport for children with special educational needs are treated on their merits. It says that the team considering the application will consider:
• The age of the child;
• Whether a walking route is appropriate;
• The nature and severity of the SEN;
• Whether suitable public transport is available; and
• Whether there are personal/family circumstances which impact the child’s ability to attend school.
15. The Council’s transport policy states that for children attending mainstream school the consideration of travel assistance is based upon distance from the home address to the school.
16. The transport policy says that provision of home to school transport will be reviewed annually. It says that if the Council decides that a child no longer an “eligible” child and that the provision will be withdrawn it will inform parents of the decision and the reasons for it and the parent is entitled to appeal the decision.
17. Local authorities are required to publish a complaints or appeals procedure as part of the transport policy statement. The Council’s transport policy states there is a two stage appeals process. At stage 1 a senior case officer reviews the original decision. At stage 2 an independent review panel considers written representations from the parent and officers within 40 days of the parent’s request and issues a written notification of the outcome within 5 days. The policy states the notification will set out:
• The nature of the decision reached;
• How the review was conducted;
• Information about other departments or agencies that were consulted as part of the process;
• What factors were considered;
• The rationale for the decision reached; and
• Information about the parent’s right to put the matter to this office.

What happened

18. X is now 11 years old and diagnosed with autism. He has an Education, Health and Care Plan that identifies his needs and the educational provision he needs to address these.
19. From September 2018 X has attended a special needs school which I will refer to as Q School. This school is named on his EHCP. No transport provision to the school is detailed in the EHCP.
20. In July 2019 the Council wrote to Ms F to say that it was withdrawing provision of home to school transport for X. The Council’s letter states that the Council had recently reviewed all the home to school transport it was providing. As a result it said it no longer considered X was eligible under the criterion “The child cannot reasonably be expected to walk to school because of their mobility problems or other health and safety concerns related to their SEN or disability. This will be assessed on a case-by-case basis”. The letter advised Ms F of her right to appeal the decision and how to do this. It did not say when the transport provision would be removed.
21. Ms F emailed the Council promptly to appeal stating “I am unable to take him due to taking a younger sibling to school. He had transport last year and all was going well for him. He is most definitely not going to be walking as he is a risk and his needs have not changed since last year. I await your response and reply to my appeal”.
22. In response the Council wrote to Ms F again in mid-August 2019 stating her appeal had been considered by its stage 1 appeals panel but that it had been unsuccessful. The letter stated “We have consulted the City Council’s Home to School Transport Policy 2019/2020 which states that the Local Authority will provide transport assistance for children aged 8 – 16 who live 3 miles or more from home to school. As X lives 1.5 miles away from school, he lives outside the statutory walking distance and does not qualify for transport assistance.”.
23. On 21 August Ms F contacted the Council again stating “Hi, I wish to appeal regarding my son’s transport, he had transport to Q School last year, and we are not sure how you expect us to get him to school because we have another sibling which we have to take to school at the same time as X goes to school, he ASD & ADHD and we can’t allow him to walk as you can imagine as he is 10 years I'm not sure what you expect us to do”.
24. The Council says this stage 2 appeal was considered by a panel of two people and that “The outcome at this stage 2 was to uphold the decision of the stage 1 appeal hearing. The decision was based on the fact that family live within the statutory distance between home and school and that mums supplementing information was that she wanted the panel to take into account that she needed to take two other children to two separate schools. The LA Travel assistance policy states that we do not take into account other sibling requirements”. It does not have any notes of the appeal panel meeting or discussion or of how the decision was reached.
25. The Council did not write to Ms F with this outcome of the appeal and says that the transport officer told Ms F by telephone in late October what the outcome of her appeal was.
26. In its comments to me the Council has said that the work of its Special Educational Needs Monitoring and Assessment Service has undergone many changes recently and says it has reviewed its processes around appeals which has resulted in improvements to its handling of these, particularly around its written responses.

Was the Council at fault and did this cause injustice?

27. There are a number of areas of fault in the Council’s handling of the withdrawal of home to school transport for X:
• The Council’s original letter advising that transport would be removed provided very little information on the grounds for withdrawal. No details of the walking route measurement for example or of the limits for this which is unreasonable given the Council’s grounds for removal seems to be distance. In addition to this however, there is no evidence of any consideration of anything other than distance and this does not comply with its policy regarding transport provision for children with SEN which states that other matters will be taken into account including the nature of the SEN and the family circumstances. If these are matters for consideration of an application for transport then they must also be matters for consideration when withdrawing this transport. This lack of information affected the appeal that Ms X could then submit. The letter does not say when the transport provision will be withdrawn;
• The response to the first stage appeal again only addresses the home to school distance measurement and, whilst it is an improvement on the decision letter in that it provides the home to school measurement, again it fails to consider the absence of consideration of X’s special educational needs or the grounds of Ms F’s appeal;
• The stage 2 consideration was delayed. It should have been completed within 40 days of the request but the Council took around two and a half months to consider it;
• There are no notes of the panel’s consideration of the appeal so there is no evidence of how the panel members considered the appeal or what they took into account before rejecting it. The information the Council has provided to me about the panel’s decision includes inaccurate information as it states that X has two siblings when he has one;
• The Council failed to write to Ms F with the outcome of the second stage appeal. It says a Council officer rang her on the same day the panel considered the appeal. It has not provided notes of this conversation so I do not know what the officer told her. The Council’s policy clearly states that it will wrote with the decision and provides details of what information this letters should include.
28. The poor handling of the withdrawal and the appeal have caused Ms F injustice in the form of frustration, distress and uncertainty in relation to the delay and the failure to write to her with the outcome of the second stage appeal. She was denied her the opportunity to have the appeal considered properly and this is particularly highlighted by the apparent absence of any consideration of X’s special educational needs or the grounds she put forward in her appeal. She has been caused avoidable time and trouble in having to come to this office in order to remedy this.

Agreed action

29. The Council will take the following action within 4 weeks of the final decision on this complaint:
• Apologise to Ms F for the faults identified;
• Pay Ms F £500 to recognise the injustice caused in the form of avoidable uncertainty, distress and lost opportunity as detailed above;
• Pay an additional £100 to recognise the avoidable time and trouble caused to Ms F in having to come to this office to have the matter addressed;
• Provide Ms F with a letter now which clearly addresses the reasons for the withdrawal of the transport and offer her the right to appeal again so that she may submit an appeal which addresses the grounds of the withdrawal;
• Promptly and properly consider any appeal Ms F may wish to submit at stage 2 of the appeal process and write to her with the outcome of this appeal. Remind her of her right to complain to this office in that letter if she is dissatisfied;
• If any appeal is upheld (ie a decision is reached that the transport should not have been withdrawn in September 2019), the Council should consider reimbursing reasonable costs incurred to Ms F of having to provide transport from September 2019 and advise Ms F that she can complain to this office if she is dissatisfied with any reimbursement offered; and
• Provide this office with details of the changes it has introduced to improve its handling of appeals as referred to in paragraph 26 above.

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Final decision

30. Fault by the Council has caused Ms F injustice as outlined in paragraphs 27 and 28 above and it will take the action detailed in paragraph 29 to recognise this.

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Investigator's decision on behalf of the Ombudsman