Summary: Mrs X complained about the Council’s decision to refuse her application for home to school transport for her disabled son. The Ombudsman has found the Council to be at fault because it did not properly consider his disability and applied the wrong legal test. To remedy this, the Council has agreed to reconsider the application, apologise to Mrs X and review its policy to ensure compliance with the statutory guidance.

The complaint

1. Mrs X complains the Council failed to properly consider her application for home to school transport.
2. In particular, she says the Council incorrectly used distance criteria when making its decision and did not properly consider her son’s disability.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 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;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance;
• considered the Council’s policy; and
• sent a draft version of this decision to both parties and invited comments that have been taken into consideration.

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What I found

The law

7. The law (Education Act 1996, section 508B) says councils must provide free home to school transport for ‘eligible’ children. Eligible children are children of compulsory school age who:

• live beyond the statutory walking distance from school. This is three miles for children over eight years old who attend their nearest qualifying school.
• 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 special educational needs and/or disability.

8. The statutory guidance says when determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - statutory guidance for local authorities 2014, paragraph 17).

The Council’s policy

9. Relevant parts of the Council’s policy are set out below.
10. “Pupils aged 4 to 16 with a disability – where a pupil has a permanent or temporary disability so they cannot walk even short distances to school, the Council will make suitable travel arrangements for the duration of that disability”.
11. “Travel arrangements will be agreed for pupils with an EHC plan where:

• A pupil lives further than the statutory distance between home and school and has an EHC plan i.e. under 8 years old and over 2 miles from home to school …..AND/OR
• The LEA has determined the name of the school and type of provision and this meets the criteria for distances above AND/OR
• A pupil has an EHC plan for a severe medical or physical condition and there is detailed written advice from appropriate medical personnel”.

“NOTE – no dispensation will be made for parents who are working at the time their children travel to school. They will be expected to make arrangements for someone else to accompany their child or take them to school”.

“Exceptional circumstances will be considered on a case by case basis.”

What happened

12. At the relevant time, Mrs X’s son, D was four years old. He had an EHCP. He was due to attend a special school in September 2019. In readiness for this, Mrs X applied to the Council for home to school transport. On the application form she said she was unable to accompany D to school because she had to take her older son to a different school at the same time. She said D was unable to walk to school because of his learning disability.
13. Her request for support was refused. Mrs X appealed this decision.
14. Her stage one appeal was also refused for the following reasons:
1. The distance from D’s home to school was 1.2 miles which was less than the statutory distance.
2. The proposed route was deemed to be safe.
3. D could be taken on the bus.
15. Mrs X appealed and her this was considered by the Council’s Home to School Transport Appeal Panel (“the Panel”) in September 2019.
16. In support of her application Mrs X said:

• The length of the journey was not the only problem. D was able to travel in a buggy for short periods of time of up to ten minutes if his mood was good. On other occasions he would often break free and could break his buggy.
• D has no sense of danger and cannot restrain himself. This could cause problems for other bus passengers. D’s school had agreed that bus travel was not suitable.
• D is non-verbal and struggled to communicate his needs and wishes.
• Neither D nor his brother can travel unaccompanied.
• Sometimes D requires two people to restrain him. This made it problematic if only one parent could accompany him.
• Her other son also demonstrates autistic behaviours.

17. Her appeal was again unsuccessful. The reasons for this were set out in the decision letter and are summarised below:

• The application did not comply with the Council’s policy – that transport will be provided where the child has an EHCP and lives over two miles from school.
• A safe walking route of 1.6 miles was available to take both siblings schools.
• D’s medical condition did not mean that Mrs X could not transport him to and from school.
• No exceptional circumstances existed and other options (e.g. bus) were available.
• Parents working commitments cannot be taken into consideration.

18. Unhappy with this decision, Mrs X brought her complaint to the Ombudsman. She was concerned that the Council had not properly considered her circumstances and had used incorrect distance criteria.

Council’s response to the Ombudsman’s enquiries

19. In response to the Ombudsman’s initial enquiries about the reference to distance criteria within the Council’s decision making, the Council made the following comments:

“Whilst the Councils Transport Policy does contain distance criteria it also contains an additional item that is taken into consideration when decisions are being made for SEN and that is;

A pupil has a EHC plan for a severe medical or physical condition and there is detailed written advice from appropriate medical personnel

Should the EHC Plan and appropriate medical advice show that transport would be required then this will be provided regardless of the distance from home to school.”

Analysis

20. In response to the Ombudsman’s initial enquiries, the Council provided a copy of the Clerk’s handwritten note from the Panel hearing. Unfortunately, this was illegible. The Council was asked to provide a typed version, but it has been unable to do so and has explained the decision letter provides all the relevant information. I have therefore relied solely on this letter in reaching my decision.
21. By law, the Council has a duty (as opposed to a discretion) to provide transport assistance for eligible children.
22. Eligible children are those who cannot reasonably expected to walk to school because of their mobility problems of because of associated health and safety issues relating to their SEN or disability. The guidance makes it clear that statutory walking distances should not be considered when assessing transport needs in such cases.
23. The Ombudsman expects councils to follow statutory guidance unless there are good reasons for not doing so.
24. It is clear, from the evidence I have seen, that the statutory walking distance was considered at all stages of the decision making process. The stage two decision letter stated, “The Panel noted that a safe route from your home to school is available and that the distance is below the statutory maximum”.
25. I have also noted that the only part of the Council’s policy quoted within the decision letter is the paragraph setting out that transport will only be agreed for pupils with an EHCP where the pupil lives over 2 miles away from school.
26. Fundamental to the decision was the Council’s policy, which clearly included distance criteria in relation to children with an EHCP, contrary to the statutory guidance. The Council’s rationale for this was that transport could still be provided if there was medical evidence of a “severe medical or physical condition”.
27. I do not consider this additional criterion corrects the policy. The statutory test is that decisions about eligibility should be based on “being able to walk”. The Council’s policy changed the test to being determined either by distance or a “severe medical or physical condition” – neither of which are supported by the relevant legislation. This has the effect of making it far more difficult than was intended for an applicant’s child to be assessed as an “eligible child”. This is fault.
28. I have also identified fault in the Panel’s assessment of Mrs X’s circumstances and application of its policy.
29. Part of Mrs X’s difficulty was that she had an older sibling to take to a different school at the same time as D and that D’s behaviour can be difficult control, even with both parents present.
30. The Council’s policy states that transport will be provided for disabled children “where they cannot walk even short distances to school”.
31. In the Council’s written submission to the Panel the case officer wrote, “both children could be accompanied on foot with D being taken in his buggy”. Mrs X told the Panel that D was often unwilling to use the buggy and could become difficult to restrain alone.
32. I have seen no evidence that the Panel gave any consideration to whether it was appropriate for D, who was by that time 5 years old, to travel to school by buggy, as opposed to walking. This was particularly relevant when the statutory test relates to “ability to walk”.
33. In support of its decision, the Panel relied upon other options being available, one of which was use of the local bus service. Mrs X told the Panel D’s school had agreed that bus travel was unsuitable because of his challenging behaviour. There is no evidence this was considered by the Panel.
34. Similarly, I have seen no evidence that consideration was given to Mrs X saying her father was no longer able to assist with transport and because it could take two people to restrain D. This would make it difficult for her husband to assist with school transport for both their children.
35. I would expect to see consideration having been given to this information. As I have seen no evidence of this, I have decided there was fault when the Panel reached its decision.
36. This procedural fault has caused an injustice to Mrs X as she has been left not knowing what the Council’s decision would have been if her application had been considered properly.

Conclusion

37. The law says the Ombudsman cannot question the merits of a decision that is taken properly. As I have found fault in the process the Council followed, it brings into question the Council’s decision. This fault may have affected the outcome of the original decision and the appeal. This does not mean I can say D is an eligible child by virtue of his special educational needs or disability, as that is for the Council to decide. The Council needs to come to a view about whether D can walk the distance to school, either by himself or when accompanied.

Agreed action

38. To remedy the injustice identified in this decision, the Council has agreed to take the following action within one month of the date of my final decision:
1. Apologise to Mrs X for the fault I have identified.
2. Reconsider D’s case using the correct criteria. Mrs X will be invited to provide any additional evidence to support her application prior to any decision being made.
3. If the Council decides to provide transport, it will reimburse Mrs X the reasonable costs of transporting D to and from school since September 2019.
4. Review its policy and procedures to ensure the correct criteria are applied in future in similar cases.
5. Arrange training for both officers and panel members on the revised policy to ensure it is properly understood and applied in future.

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Final decision

39. I have found the Council to be at fault when making its decision about eligibility for home to school transport for Mrs X’s disabled son. To remedy this the Council has agreed to reconsider the application, apologise to Mrs X and review its policy.

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Investigator's decision on behalf of the Ombudsman