Summary: The Council applied the wrong tests when deciding an application for home-to-school transport, which is fault. It has agreed to review its decision in light of this. Until the review is complete, it is not possible to decide whether the fault caused an injustice to the complainant. However, the Council has also agreed to review its handling of other recent similar applications, to identify any where it has made the same errors.

The complaint

1. The complainant, to whom I will refer as Miss C, says the Council has wrongly refused her application for home-to-school transport for her son.

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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. 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)
4. We may decide not to start or continue with an investigation if we believe it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I reviewed Miss C’s application and appeal paperwork, including the Council’s decision letters, and wrote to the Council.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. Miss C has a son, to whom I will refer as D. He has learning difficulties and is subject to an Education, Health and Care (EHC) plan. Section I of the EHC plan names a mainstream school with specialist provision, which D has been attending since September 2019.
8. In April 2019, Miss C applied to the Council for home-to-school transport. She said D was not able to safely use public transport himself, and that, although she had access to a car, she would not necessarily be available to drive him to and from school because of her working patterns. She noted in the application form she was in receipt of some benefits but did not know if D was eligible for free school meals.
9. The Council wrote to Miss C on 22 May. It explained the extended rights criteria for school transport applications, but said it had not been able to establish Miss C was eligible. It said it refused her application because she had no primary school age children to take to school, had access to a car, and that neither she nor D had significant mobility issues.
10. The Council noted D’s primary school had raised concerns about his ability to travel independently, but consider it was reasonable to expect either Miss C or D’s father (who lived separately) to accompany him to and from school.
11. Miss C submitted a stage 1 appeal on 6 June. She explained that, for D to get to school by public transport, he would need to cross several major roads and change buses twice. His conditions meant he could no do so safely, because he had little awareness of safety and needed constant supervision and assurance from adults.
12. Miss C explained D’s father had only taken him to primary occasionally, did not drive, and could not be relied upon to take him to school regularly. Miss C said she worked as a carer, which involved early starts and late finishes, with occasional overnight shifts, and her childminder also did not drive and could not take D to school. Miss C also explained it was not correct to say D had no significant mobility issues.
13. In support of her application, Miss C submitted another letter from D’s teacher at primary school, which said relying on D to travel independently would be “at best impractical and at worst dangerous”.
14. The Council sent its decision letter to Miss C on 3 July. It explained it was refusing the appeal because D was not going to be attending the nearest suitable school, because Miss C lived within the three-mile statutory walking distance to the school, and because she did not qualify under the extended criteria or under any exceptional circumstances.
15. The Council said it had considered the supporting letter from D’s primary school, and also Miss C’s comments about her working patterns and D’s ability to travel independently. However, the Council reiterated he was not attending the nearest suitable school, and said parents’ working patterns were not considered an exceptional circumstance.
16. Miss C submitted a stage 2 appeal on 16 July. She said she had sought advice from a legal support centre, which had advised her the ‘nearer suitable school’ element should not be considered for a child with a named placement on an EHC plan. She also pointed out had in fact applied for the nearer school originally, but D was not offered a place there and had instead been offered the named school.
17. Miss C reiterated the points she had made about her availability, and that of D’s father, and also about D’s own ability to travel independently. She also submitted a supporting letter from D’s GP, which said D would be “extremely vulnerable and [a] risk to himself and others” if he had to travel independently. Miss C pointed out the Education Act 1996 states a child must be transported safely to school, in a matter which prevents them arriving stressed, and by using the safest route.
18. The Council sent its decision letter to Miss C on 19 July. It explained the appeal had been considered by an independent panel on 17 July, which had considered the evidence she had submitted.
19. The Council said the panel had noted D’s EHC plan was issued on the basis of “moderate learning difficulties”, and that he had not been accessing free transport to his primary school because of its proximity to home.
20. The panel had also noted that D was not going to be attending the nearest school to home, despite there being suitable ones closer. It acknowledged Miss C raised about the Education Act 1996, but said “the interpretation of this” was that it was only the local authority’s responsibility to ensure a child’s attendance at school if he or she was attending the nearest suitable one.
21. Miss C made a complaint to the Ombudsman on 11 September.

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Legislative background

Home-to-school transport statutory guidance

22. The Home-to-school travel and transport statutory guidance 2014 sets out the criteria under which local authorities should consider applications for free transport.
23. A child or young person is eligible for free transport if they:

• attend the nearest suitable school; and
• the school is more than two miles away from home, for a child under 8, or three miles away from home, for a child or young person over 8 (‘statutory walking distance’); or
• it is not reasonable to expect the child to walk to school, because there is no safe walking route, or because they have special educational needs, disabilities or mobility problems.

24. For a child entitled to free school meals, or whose parent(s) receives the maximum level of working tax credit, the statutory walking distance is two miles until the age of 11, between two and six miles between the ages of 11 and 16, and between 2 and 15 miles for the nearest qualifying school preferred for reasons of religion or belief.
25. At paragraph 16, the statutory guidance says:

… local authorities are required to … make transport arrangements for all children who cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs (SEN) or disability. 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.

26. At paragraph 34, it says:

As a general guide, transport arrangements should not require a child to make

several changes on public transport resulting in an unreasonably long journey time. Best practice suggests that the maximum each way length of journey for a child of primary school age to be 45 minutes and for secondary school age 75 minutes, but these should be regarded as the maximum. For children with SEN and/or disabilities, journeys may be more complex and a shorter journey time, although desirable, may not always be possible.

Special Educational Need and Disability (SEND) Code of Practice

27. At paragraph 9.214 (page 206), the SEND Code of Practice says:

The parents’ or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the local authority can name the nearer school or college if it considers it to be appropriate for meeting the child or young person’s SEN. If the parents prefer the school or college that is further away, the local authority may agree to this but is able to ask the parents to provide some or all of the transport funding.

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Analysis

28. In the majority of cases, local authorities decide applications for free home-to-school transport on the basis of two factors – that the child is attending their nearest suitable school, and that this school is over the statutory walking distance.
29. However, the statutory guidance says specifically that local authorities should not apply the normal walking distance rules, where a child has disabilities or mobility problems which affect their ability to walk. Instead, their application should be decided on a case-by-case basis, taking into account the child’s individual abilities.
30. The SEND Code of Practice also says, for a child with an EHC plan, if the local authority considers there is a nearer suitable school, this should be named on the plan. If only one establishment is named on the plan, this means it is the only suitable school for transport purposes.
31. The Council has entirely failed to apply these tests correctly to Miss C’s application. D has one school named on his plan – the one he is now attending – and so, in the formal sense, there is no other school which should be considered suitable.
32. It may be there is another, closer school which could accommodate him, but it is inconsistent with the SEND Code of Practice for the Council to rely on this as a factor to reject the application. This remains true, regardless of whether his attendance at his current school was a matter of parental preference.
33. The Council has also referred to the statutory walking distance of three miles for a child of D’s age. Again, this is incorrect. D has a number of established disabilities, and so, according to the statutory guidance, his ability to walk to school should be considered on an individual basis, not with reference to the statutory walking distance.
34. The statutory guidance also says local authorities should consider the length and complexity of the route in determining its suitability, especially for a child with SEN or disabilities. Miss C referred to D needing to change bus twice and cross a number of major roads en route to school, but I see no consideration of this in the Council’s various decision letters.
35. So, on these counts, I find significant fault in the Council’s handling of Miss C’s application.
36. Even accepting this, I cannot say the Council should have approved Miss C’s application. It should not have considered whether there was a nearer suitable school, and it should have properly considered D’s particular abilities and needs – but it remains a matter of professional judgement whether these made him eligible for free transport.
37. This brings me to a related point. In support of her application, Miss C submitted letters from two sources – D’s teacher at primary school, and his GP. Both set out very clearly their concerns about his ability to travel independently, and said, to allow him to do so would be “impractical”, “dangerous”, and create a risk both to D and others.
38. How much weight should be placed on this evidence is, again, a matter of professional judgement. But the letters are from two professionals working in highly relevant fields, who should have detailed knowledge of D and his abilities; and both are very clear that expecting him to travel independently is not appropriate.
39. This being the case, I would expect to see the Council give close scrutiny to this evidence, and, if minded not to accept it, give a detailed explanation for this. But it has does none of those things – it acknowledged the teacher's letters, but did not consider them in any meaningful sense, and worse, I can see no reference to the GP’s letter at all.
40. This is a further, significant, point of fault here.
41. Unfortunately, it is not possible for me to accurately assess whether Miss C has suffered an injustice, on the current evidence.
42. At the beginning of my investigation, I wrote to the Council and highlighted its application of the wrong tests to Miss C’s application. After further correspondence, it said it recognised this, and agreed to review the application via a fresh appeal, taking account of the correct tests, and giving proper scrutiny to the supporting evidence. This is positive, and is what I would recommend if the Council had not already agreed to do it.
43. Miss C has explained that, since D started school in September, she has either been driving him to and from school herself, when she is able, or paying for a taxi for him.
44. If the Council’s review of her application determines he should have been granted free school transport, this means Miss C’s efforts and expenses to get him to school in the meantime represent an injustice.
45. However, as I have said, it remains a matter of professional judgement whether D should be eligible, and this is not a decision the Ombudsman can make on the Council’s behalf. So I must accept the fact the Council could, even after a proper review, maintain its original decision.
46. For this reason, I cannot currently say Miss C has suffered a significant injustice because of the Council’s faults here. If the Council maintains its original decision upon review, then she has not lost out on a service it should have provided.
47. The Council has also said it will review its processes and procedures, to ensure decision-makers understand and apply the correct tests in future applications. Again, this is positive, and there is no further recommendation for to make here.
48. But I remain concerned the Council may have made similar errors in other cases. This concern is reinforced by the Council’s (unprompted) recognition it should review and update its own guidance.
49. This being the case, the Council should take urgent steps to review the decisions it has made on recent similar applications.

Agreed action

50. Within two months of the date of my final decision, the Council has agreed to review its handling of applications for home-to-school transport for the 2019/20 academic year, for children up to the age of 16, where the child is subject to an EHC plan. In any case where it has rejected the application, it will ensure it has:

• not relied on the ‘nearer similar provision’ test, where there is only one establishment named on the plan; nor
• made its decision on the basis of statutory walking distances, rather than the child’s individual walking ability; and
• has given proper scrutiny to any relevant supporting evidence.

51. Where it identifies cases which have not been properly considered, it will immediately review its decision. If it concludes it should have accepted the application when made, it will then write to the applicant and offer to provide free transport for their child(ren).

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Final decision

52. I have completed my investigation with a finding of fault which did not cause injustice.
53. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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Investigator's decision on behalf of the Ombudsman