Summary: Mrs X complained about the Council’s decision to end her son’s entitlement to home to school transport and how it conducted her unsuccessful appeal about this. The Ombudsman has found some fault because it referred to the wrong criteria in reaching its decision. But this fault did not affect the outcome and so there was no injustice to Mrs X.

The complaint

1. Mrs X complained about the Council’s decision to withdraw her disabled son’s entitlement to home to school transport. She also complains about the way the Council and its transport appeal panel considered her fresh application.
2. In particular, she complains that:

• The Council wrongly applied a test of distance when this is not the appropriate test for a disabled child.
• The appeal panel did not take into account her family’s individual circumstances.
• The appeal panel was presented with inaccurate information.

3. Mrs X would like the Council to reinstate her son’s home to school transport.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. As part of my investigation I have:

• considered the complaint and documents provided by Mrs X;
• considered documents provided by the Council;
• considered the relevant law and statutory guidance;
• spoken to Mrs X; and
• sent a draft version of this decision to both parties and invited comments on it. No comments were received.

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What I found

7. Section 508B of the Education Act 1996 (‘The Act’) says councils must provide free school transport to eligible children. The term 'eligible' means children of compulsory school age who meet certain criteria as set out in Schedule 35B of the Act.
8. Eligible children fall into four categories:

• Children with special educational needs (SEN) or a mobility difficulty and cannot reasonably be expected to walk to school where the school is within the statutory walking distance.
• Children whose route to school is unsafe.
• Children who live outside the statutory walking distance to school (currently 2 miles of under 8 years and 3 miles if between 8-16 years).
• Children from low income families (on free school meals or in receipt of maximum working tax credit)

9. The Government has issued statutory guidance ‘Home to School travel and transport’ for local authorities’ (‘the Guidance’). Councils must have regard to the guidance when carrying out their duties. This means councils can depart from the guidance, but if they do, they must have a good reason for doing so.
10. The Guidance says eligibility under SEN / mobility grounds should ‘be assessed on an individual basis to identify their particular travel requirements’ and that statutory walking distance is not relevant for children eligible due to SEN or mobility.
11. The Guidance recommend councils have a two stage appeals process that includes:

• Stage one review by a senior officer
• Stage two review by an independent appeal panel. Panel members must be independent of the original decision-making process but do not have to be independent of the council.
• A detailed written decision at each stage setting out:
1. The nature of the decision reached
2. How the review was conducted
3. Information about other agencies consulted
4. What factors were considered and the rationale reached.

The Council’s Policy - Assistance for children of compulsory school age with a statement of special educational needs (SEN) or an Education Health and Care (EHC) plan

12. The Council’s policy states,
13. “Assistance with transport will be provided to children who live less than the statutory walking distance from school if:
1. he or she is the subject of a statement of SEN or an EHC plan;
2. the need for support is apparent from their statement or EHC plan; and
3. the child is attending the nearest qualifying school as named in the statement or EHC plan.”

The facts

14. Mrs X’s son, Child D, has special educational needs and is the subject of an ECH plan. The Council provided him with free home to school transport for six years. In March 2019, the Council informed Mrs X that it intended to withdraw this assistance when Child D moved to Year 7 in September 2019.
15. Mrs X applied to the Council to reinstate transport assistance. The Council refused her application.
16. The Council said Child D was not eligible because his school was less that three miles from home and he had “the capacity to undertake this journey, accompanied as necessary, by a responsible adult”.
17. Mrs X appealed this decision. Her application was reviewed at the first stage of the Council’s two stage appeal process. The decision letter said it was appropriate to expect a parent to accompany Child B to school and that “a walking distance of one mile that takes 20 minutes is well within this expectation”.
18. Mrs X lodged an appeal against this decision. She explained that Child D is different at home than school and that he becomes very upset at change. She also submitted a letter from her GP that repeated her concerns that Child D would not cope with public transport and that it was unsafe to walk.
19. Her appeal was considered by the Council’s home to school transport appeal panel (“the Panel”). Mrs X attended and was supported by a local councillor. Her appeal was unsuccessful. The Council wrote to her and explained why.

• Child D was not eligible by reference to both the distance criteria and his SEN.
• Panel was not convinced of the negative effect change had on Child D.
• Insufficient evidence that Child D would put himself in danger.
• There was no evidence that additional adult support was required to accompany Child D when Mr X was unavailable.
• The GP letter did not provide evidence that the change would affect child D’s well being.

20. Disappointed by this decision, Mrs X brought her complaint to the Ombudsman. She said the decision was wrong because:

• Child D had been eligible for 6 years – the Council was wrong to withdraw this.
• Incorrect distance criteria had been used.
• The Panel incorrectly decided that Child B could walk to school or take a bus. Both are strongly contested by Mrs X.
• She was sent a letter one day before the appeal saying he would get transport. This was subsequently retracted.
• Incorrect information was given about Child D being interviewed by a SEN officer

Analysis

21. The Ombudsman does not question the merits of decisions properly made. We may consider the conduct of an appeal hearing, but we are not a second appeal and we do not consider the merits of the argument afresh.
22. Instead we investigate whether there is evidence of procedural fault in the conduct of the appeal and, if so, whether that fault undermines the appeal panel’s decision. In such cases, we may ask the Council to conduct a fresh appeal with a different panel.
23. In reaching my decision I have considered the notes from the appeal hearing and the decision letter.

Decision to withdraw transport provision

24. Mrs X was told in March that the Council would no longer be providing home to school transport from September.
25. I appreciate that it would be upsetting for the affected families to receive confirmation from the Council that it had withdrawn the previously funded transport. However, there is nothing within the law or guidance which prevents councils from withdrawing transport as long as it is done properly. In this case it was because plenty of notice of the change was given to Mrs X and she was allowed to make a fresh application.

Incorrect criteria

26. The appeal decision letter refers to the policy stating children under 16 are not eligible for assistance if their nearest school is less than three miles from home. It then refers to the criteria for SEN children.
27. The clerk’s notes from the decision making recorded that the “policy had been correctly applied”. It is not clear from this statement whether this was referring to distance criteria or not.
28. Mrs X was left understandably confused about the decision making rationale throughout her application.
29. The only criteria relevant to this appeal was the one relating to SEN children. The 3 mile rule was irrelevant. This was also referred to in the original decision letter. This is fault.
30. But I can see from the notes of the Panel’s deliberations that they did not refuse the appeal on the basis of distance. The notes from the deliberations and the decision do not refer specifically to the distance criteria.
31. So, while there was some confusion about the correct criteria, this did not affect the outcome so there was no injustice to Mrs X.

Panel reached incorrect conclusions about Child D’s abilities

32. The clerk’s notes show the Panel considered what Mr and Mrs X said about Child D's abilities, the GP letter and his ECH plan. The Panel decided there was insufficient evidence to support Mrs X’s points about the risks of alternative transport arrangements, or the impact of change in his routine.
33. While I appreciate Mrs X strongly disagrees with the decision of the Panel, because it considered all of the available evidence the Ombudsman cannot interfere with this. I have not found the Council to be at fault.

Wrong letter

34. Mrs X says she received a letter the day before the hearing saying transport had been awarded. This was sent in error. While confusing for Mrs X and should not have happened, Mrs X was made aware soon after that it was a mistake and did not have any bearing on what happened at the appeal.

Actions of the SEN officer

35. There is some dispute about what happened with the SEN officer and whether she met Child D. While it is agreed that a SEN officer helped Mrs X complete the form, Mrs X says the reference to her meeting with Child D was made in the letter from the councillor who was supporting her in her appeal.
36. On the evidence before me I do not know the source of this incorrect information. I have decided not to make further enquiries about this because the clerk’s notes show Mrs X was able to explain to the Panel what had actually happened. The Panel was therefore clear on the facts. It did not take into consideration the incorrect information. Because of this there is not fault here.

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Final decision

37. While the Council was at fault when it referred to irrelevant criteria, this did not affect the decision to refuse home to school transport. There is no further role for the Ombudsman

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Investigator's decision on behalf of the Ombudsman