Summary: the Ombudsman finds there was unnecessary delay by the Council in its handling of Mr T’s school transport appeal. The Council has agreed our proposed remedy for this fault.

The complaint

1. The complainant, whom I shall refer to as Mr T, complains that the Council took too long to consider his request and appeal for school transport for his daughter. He says this significantly affected his mental health.

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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).
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).

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How I considered this complaint

5. I have discussed the complaint with the complainant and considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Legislation and Council policy

6. Section 508B(1) and schedule 35B of the Education Act 1996 requires local authorities to make home to school travel arrangements as they consider necessary for eligible children to attend their ‘qualifying school’. ‘Eligible children’ are defined as those who:
• cannot walk to school because of their special educational needs, disability or mobility problem;
• cannot walk to school safely because of the nature of the route;
• live outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children over eight); and
• are entitled to assistance on low income grounds.
7. Councils also have discretion under the 1996 Act to offer transport “where they consider it necessary to facilitate the child’s attendance at the school”.
8. The Council’s travel policy for children with special needs is set out in “Travel Assistance for Children and Young People with an EHCP.” (September 2019). This states that

“The address where a child or young person usually lives is judged to be their ordinary residence, whether this is of a short or long duration (apart from temporary or occasional absences). Where a child/young person has parents/carers living at more than one address, the address they spend the majority of their time when attending school or college shall be considered the habitual home address.

Where a child splits their time equally between addresses, transport will be assessed from the address which is registered with the school as the home address or, prior to admission, the address used on the relevant school admission application form.”

9. Where a child is not deemed eligible for travel assistance, or a parent /carer is not satisfied with the arrangements offered, the Council explains it will consider exceptional needs under its Advanced Needs/Exceptions Protocol.

Background

10. Mr T has joint custody of his children with his former partner. His daughter X has special educational needs (SEN) and an Education and Health Care Plan (EHCP). Mr T is not able to visit his ex-partner’s house due to a legal restriction. He is physically disabled, has mental health issues and has a learning difficulty.
11. Mr T’s ex partner had successfully applied for travel assistance for X because she lived more than three miles from her school and met the criteria for eligible children. The Council considered that X’s main residence was Mrs T’s house.

What happened

12. In April 2019, Mr T asked the Council to provide free home to school transport for his daughter as she lived with him every other week for four days and nights. The Council refused his request on 9 April 2019. It said that X spent the majority of her time at her mother’s. Therefore, in accordance with its policy it said X was not eligible. Mr T applied the same day on the basis that his circumstances were exceptional. He said that because his other children were at different schools it was logistically impossible for him to get X to school on time. She would be extremely late. He would also be late for work and could lose his job. He said the Council had suggested his daughter stayed at her mother’s on school days, but in his view treating her differently would be discriminating against her due to her disability. He said his own disability made it difficult and his mental health would be affected due to the stress of getting his daughter to school on time.
13. The Council’s Partnership Resources Forum (PRF) considered the request according to the Council’s policy at the time. On 1 May 2019 the PRF decided it would not agree to Mr T’s request. However, it did not notify Mr T within 5 working days as it should have done. It wrote on 14 May 2019. The letter did not explain what grounds raised by Mr T it considered or how it considered exceptional circumstances. The Council said the SEND travel assistance policy had been correctly applied. It advised Mr T that he could appeal at the final stage of its process to the School Transport Case Review Members Meeting. This “Member’s Panel” is made up of elected Council members.
14. Mr T appealed on 28 May 2019. As the Council had advised him that the next stage was the Members Panel, he would reasonably have expected this to be arranged. However, the Council had changed its appeals process on 7 May 2019 because the SEND transport team underwent an organisational restructure. The Council says that, “as part of this restructure responsibility for eligibility decisions on SEND transport was passed [to the] Admissions & Transport team and staff in the SEND travel assistance team were transferred to that team.”
15. The Council also explains that because of the restructure the appeals process changed, with the introduction of a transport case review at stage one. The Council says it decided Mr T’s appeal should be considered by the SEND Transport case review at stage one. It says this was because the new decision makers had had no prior involvement with the case and wanted to maintain consistency by ensuring that the case was considered in line with other cases considered at that stage. The Council says it felt that this would not disadvantage Mr T as it would allow for a second opportunity for the case to be considered, and Mr T still had his opportunity to progress his case to the Members Panel.
16. The Council’s transport case review panel did not consider the matter until 6 July 2019 and did not inform Mr T of its decision until 16 July. The timescales the Council should have followed are that the review should take place within 20 working days with the decision letter sent within 5 working days, so it took significantly longer on both counts. The Council said that it considered Mr T’s circumstances were not exceptional and it should not depart from its policy which was that the Council can only provide free school transport to one address, which was generally the address that the child lived at most of the time.
17. Mr T appealed further on 26 July to the Members Panel. The Panel should consider the appeal within 40 working days, so by 23 September.
18. On 27 September 2019 the Members Panel upheld Mr T’s appeal based on his exceptional circumstances. The Council advised him on 2 October 2019. The Panel’s letter said that the Council had applied its policy correctly but having considered Mr T’s grounds and supporting evidence it decided that it should make an exception and award free transport for X on the days she was at Mr T’s home.
19. The Council provided travel for X by 1 October 2019, within one working day of the decision. However, Mr T says that for 6 weeks he had to arrange to take his daughter to school with great difficulty. He had other children to take to different schools and this meant his daughter was at least 20 minutes late each day. This caused Mr T and his daughter significant stress and anxiety. Mr T said it led to him self harming and an attempt to take his own life.

Analysis

20. The Council has explained it reorganised its SEND travel assistance team and Admissions and Transport Team in May 2019. I consider this led to delays which disadvantaged Mr T because the appeals process was extended. The Council appears to have overlapped the old and the new process meaning Mr T had to go through an extra stage, the transport case review. While I understand the reasons the Council gave about seeking consistency, it does not appear that it considered the impact of the delays on Mr T.
21. I note the Council says that if it had not considered the matter at transport case review stage and had instead passed the appeal of 28 May 2019 to the Members Panel, the first date for the panel would have been 18 July 2019 so transport would not have been put in place until the beginning of the September term. It therefore says Mr T was not disadvantaged. I do not agree with this because Mr T would have had a decision 5 weeks earlier and would not have had to transport X himself during September.
22. The Council has timescales it should adhere to regarding appeals. It should make a decision within 20 working days of the transport case review request and the partnership resource forum request. The Members Panel should make a decision within 40 working days. The Council must notify the decisions within five working days. But at each stage the Council appears to have taken the maximum time and sometimes longer. It was significantly late in informing Mr T of the decisions.
23. I consider the Council’s delays in paragraphs 20-22 were avoidable and caused Mr T significant difficulty and distress. The impact on him was greater due to his circumstances. Therefore, I have recommended suitable remedies.
24. Mr T says the Council should have taken account of his shared residency order. In his view this meant the Council should treat him equally when considering school transport. I note Mr T’s view, but I do not find the Council at fault in its early decision making here, because its policy explains how it will consider residency when a child lives at two different addresses. In Mr T’s case the Council noted X did not spend the majority of her time at his address.
25. Mr T says the Council did not take into account that he was subject to domestic violence. He considers this was discriminatory. The Council replied while Mr T did not refer to domestic violence in his grounds of appeal, it was aware of this due to the supporting information, and took it into account. I have not found evidence of fault here, as in the early stages the Council has not referred to any grounds, so it is not possible to say what it took into account or not. However, it agreed Mr T’s grounds were exceptional at the final stage. While it did not refer to domestic violence, its decision was in his favour having considered all the information.

Agreed action

26. I recommended, and the Council agreed, within 6 weeks of my decision it will
• apologise to Mr T for its delays in progressing his appeals.
• pay Mr T £150 as a remedy due to the impact of the delays on his mental health while he was waiting for the Council to consider his appeals.
• remind officers they must notify decisions within 5 working days.

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Final decision

I have found fault by the Council. I have completed my investigation and closed the complaint on the basis of the remedies agreed.

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Investigator's decision on behalf of the Ombudsman