Summary: Ms B complains about the way the Council considered her application for home to school transport for her son who has special educational needs and mobility difficulties. The Ombudsman finds the Council was at fault because its appeal procedure does not comply with Government guidance. To remedy the injustice caused, the Council has agreed to apologise to Ms B and offer her a fresh appeal with a new panel, including the opportunity to attend the panel meeting and made verbal representations.

The complaint

1. Ms B complains about the way the Council considered her application for home to school transport for her son, C, who has special educational needs and mobility difficulties. She says the Council’s refusal to provide transport means her partner has to take time off work to take C to school.

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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 have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.
5. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Duty to provide free home to school transport

6. The Education Act 1996 says councils must provide free home to school transport for eligible children of statutory school age to qualifying schools.
7. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance; or
• receive free school meals, or whose parents receive the maximum Working Tax Credit.
8. The nearest qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.
9. A child with special educational needs may have a statement or education, health and care plan (EHCP). The statement or plan sets out the child’s needs and what arrangements should be made to meet them.
10. The Council is responsible for making sure that all the arrangements specified in the EHCP are put in place.
11. The Council’s home to school transport policy states:

“For pupils aged 5-16 with a statement of SEN or an education and health care plan (EHCP) or registered disability to qualify for travel assistance, the following must apply:

• ordinarily residing in the Shropshire Council authoritative area and of compulsory school age (5-16)
• registered at their nearest catchment school or designated school
• can’t reasonably be expected to walk to school because of associated health and safety issues relating to their individual special educational needs or disability

Travel assistance won’t be considered if a parent carer selects a placement at a school (including a special school) which isn’t their nearest or catchment school, or designated as appropriate by us.”

The appeal process

12. The Government issued statutory guidance in 2014, ‘Home to school travel and transport guidance’ (‘the guidance’) which recommends Councils have a two stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support:

• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.

13. The guidance says a parent can challenge a decision on the home to school travel application on the basis of entitlement, distance measurement, route safety and consideration of exceptional circumstances. The parent can challenge the officer’s decision and request a review by an appeal panel.
14. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.

Key facts

15. Ms B’s son, C, has autism and has an EHCP. He was attending School X which was his catchment area school but bullying, together with the school’s ability to adequately support him, became a concern.
16. C’s EHCP was updated in August 2018. It named School X but stated his parents were considering a change in placement. C was moved into Tuition, Medical and Behaviour Support Service (TMBSS) as a temporary measure.
17. In October 2018 there was a meeting at TMBSS. Representatives of School X were present together with the Council’s special educational needs (SEN) officer who confirmed C needed a new start in another mainstream school. The SEN team put forward three alternative schools which it considered suitable to meet C’s needs. It was agreed the SEN officer would send consultation papers to these schools, following the consultation period, C’s parents would decide which school they were happy with and C would not return to School X.
18. One of the schools failed to respond to Ms B and another of the school’s (School Z) said it could not meet C’s needs so Ms B felt the third school (School Y) was her last resort and chose this school.
19. C began attending School Y in January 2019.
20. In February 2019 Ms B applied for home to school transport for C. The Council refused the application on the grounds that the decision to move C to School Y was parental preference so it was not the Council’s responsibility to provide transport. The Council’s view was that there are other schools closer to C’s home that could potentially have met his needs. It says that, if requested, the SEN team would have supported Ms B with making enquiries and with trying to facilitate a place at the school which did not respond to her.
21. In March 2019 Ms B appealed against the refusal of travel assistance. She said only one of the three schools suggested by the SEN team confirmed they could meet C’s needs so she accepted a place at that school. She said the SEN team was happy to proceed on this basis and transport was never mentioned. She also said that, in various meetings in the run-up to C’s transition to the school, it was verbally agreed that transport would be funded and she was given the choice whether to take him herself or for a taxi service to be provided. She says she confirmed that she would like a taxi service because her partner works full time and she does not drive.
22. Ms B’s appeal was considered at stage 1 by an officer. She explained that free school transport is granted to students with an EHCP where the student is attending their nearest catchment secondary school or a specialist placement identified by the Council. She said there were schools closer than School Y which could meet C’s needs. She also referred to a mediation agreement from 2018 which showed it was agreed that a potential placement at another school outside the catchment area (School Z) would be classed as parental preference and Ms B would be responsible for transporting C to school. The officer stated that, although C was not placed as School Z, the principle also applied to his placement at School Y and he would only qualify for free school transport if Ms B could show that none of the schools closer to her home address were able to meet his needs.
23. Ms B asked for her appeal to be considered at stage 2 of the Council’s procedure. The transport appeal panel considered the appeal in May 2019.
24. The notes of the appeal show the Council agreed School X was no longer suitable for C because it could not adequately meet his needs. But the SEN team considered there were other schools closer to home which could meet his needs. The panel noted that the notes of the mediation meeting in May 2018 stated it would be the parents’ responsibility to transport C to school if he moved to School Z. The panel also noted the SEN team would have provided further assistance to the parents if they had been aware that they had not received a response from one of the suggested schools.
25. The panel decided there were no grounds to provide transport to School Y. Its view was that, under the Council’s transport policy, the decision to move C to School Y was one of parental preference so it was Ms B’s responsibility to transport C to and from school. The clerk to the appeals panel wrote to Ms B with the panel’s decision.

Analysis

26. It is not the Ombudsman’s role to decide whether someone should receive free transport to school. We can only consider if there was fault in how the Council reached its decision.
27. The guidance recommends local authorities adopt a two-stage appeals process with stage 1 being a review by a senior officer and stage 2 being a review by an independent appeal panel.
28. The Council’s policy states that appeals should be made in writing. It states that a stage 1 appeal will be considered by a senior officer who will review the original decision together with any information provided by the parent/carer in their appeal. If stage 1 is unsuccessful, the parents can request that an independent appeal panel considers written representations.
29. I find the Council’s appeal process does not meet the requirements set out in the statutory guidance which states that the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case.
30. The guidance says parents should be able to present their case and there are good reasons for this including: transparency; natural justice and the opportunity for all parties to ask questions.
31. The status of the guidance is a material consideration. It is statutory guidance, not simply an explanatory document or informal advice. So, it has a significant status and councils have a duty to have regard to it when formulating their policy. It is open to councils to depart from statutory guidance, but the courts have said they can do so only if they have cogent reasons for doing so. The Council has provided no such reasons.
32. It is also important to note the Government’s expressed intent in formulating the current guidance in the way it did. It specifically signalled an intent to move away from the broad discretion that councils previously enjoyed in relation to appeals and to provide clear guidance to promote a “consistent approach”.
33. We would expect the Council to follow the two-stage appeals process set out in the statutory school transport guidance for all transport appeals unless it has good reason not to. Any departure from the guidance must provide parents at least the same opportunities to present their case and for independent consideration of their appeal.
34. Ms B was not given the opportunity to attend the hearing to put her arguments to the panel in person. This was fault and caused Ms B a significant injustice. She will never know whether the outcome may have been different if she had been given the opportunity to attend the hearing and present her arguments verbally.

Agreed action

35. In recognition of the injustice caused to Ms B, the Council has agreed that, within one month, it will:
• apologise to Ms B;
• review its school transport appeal procedure to ensure it meets the requirements of statutory guidance including provision for parents to attend the hearing and make verbal representations; and
• offer Ms B a fresh appeal with a new panel, including the opportunity to attend the panel meeting and make verbal representations.

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Final decision

36. I uphold Ms B’s complaint.
37. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman