Summary: Miss L complained about the Council’s decision to refuse her request for transport to school for her son, M, who has an Education, Health and Care Plan naming the school. There is evidence of fault and the Council has agreed to reimburse her mileage, pay for M’s lost education provision and to make a payment to acknowledge her time and trouble.

The complaint

1. The complainant, whom I shall call Miss L complains about the Council’s decision to refuse her request for transport to school for her son, M, who has special educational needs (SEN). Miss L also complains about the appeal panel hearing. She says the Panel was aware why she had moved some distance away from where she previously lived but asked her to go through it again. Miss L found this very distressing.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
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. I considered the information Miss L provided with her complaint and assessed the Council’s responses to enquiries. I have referred to appropriate legislation and statutory guidance here. I also spoke to her on the telephone. I sent Miss L and the Council a copy of my draft decision and took the comments they made into account before issuing my decision.

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What I found

Background

7. Under Sections 508B and schedule 35B of the Education Act 1996, Councils have a duty to provide free school transport for ‘eligible children’. In order to be considered ‘eligible’ one of the criteria is that a child aged 8-16 has to live more than three miles away from their closest available school. Three miles is the ‘statutory walking distance’ to a school.
8. The SEN and Disability Code of Practice 2015 sets out the considerations for a child with an Education, Health and Care Plan (EHCP). It says that if a parent’s preferred school is further away from the child’s home than another school that can meet the child’s special educational needs a Council can then name the nearer school if that would be compatible with the efficient use of resources. Alternatively, a Council can name the parents’ preferred school with the condition that the parents agree to pay all or part of the transport costs. Unless the EHCP says otherwise, the named school would be the child’s ‘nearest suitable school’ and the Council has a duty to arrange transport to it.

This complaint

9. M is of compulsory school age. He has an Education, Health and Care Plan (EHCP), which sets out his needs.
10. M’s EHCP names his current school. This school is his ‘nearest suitable school’. There are no grounds for the Council to fail to provide transport for M to attend given he lives more than 3 miles away from it i.e. he does not live within the statutory walking distance. Its failure to provide transport is fault.
11. M has held a bus pass since 23 January but he did not previously have this. In addition, M was out of school from 17 December until 23 January, which is also due to the Council’s failure to provide transport. This is fault and M missed education because of it. Miss L had made it clear M could not attend school because she was unable to provide transport at that point; this would have been a defence against prosecution for M’s non-attendance, as the statutory ‘Home-to-school travel and transport guidance’ (2014) makes clear. Miss L says that because of the costs of getting her son to school, she was unable to keep up her payments on her car, which was repossessed. I do not have any evidence to suggest providing school transport was the sole reason for repossession so I cannot find the Council at fault for this.
12. There is no evidence the Council considered whether the school was M’s nearest available school because of it being in his EHCP and this is fault. Its first response of 2 July 2019 makes no reference to M having SEN. The second response of 13 December 2019 says ‘Home to school transport is provided where a secondary aged child has been placed at the nearest suitable school…and the shortest walking distance from home to that school is more than three miles’. It then goes on to consider Miss L, and M’s, case under extended rights (because of low income), which do not apply here because M’s EHCP names the school. This is fault.
13. When Miss L went to the appeal, she was asked to explain why she and M had moved some distance from where they previously lived. This caused Miss L immense distress as the Council was already aware of why she had moved. However, I would expect the panel to want to understand the reasoning for this. The Council says it did not have information from her that it could present to the panel, which is why it relied on her telling the panel. I cannot find it at fault for this reason.
14. The Council has reviewed 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 has an EHCP. Where it identified cases which had not been properly considered, it reviewed the decision. If it then concludes it should have accepted the application when made, it has told me it will then write to the applicant and offer to provide free transport for their child. It should also backdate mileage allowance where appropriate if parents have been taking their child to school because the Council, acting with fault, has not.

Agreed action

15. The Council will pay the appropriate mileage allowance to Ms L for taking M to school from September 2019 until 17 December 2019 to remedy its fault in failing to provide this beforehand. It is asked to do so within two months of the date of my decision.
16. Ms L was caused time and trouble having to ask the Council for transport through a number of officers and going to appeals, which should not have been necessary under the circumstances. The Council will make a payment of £100 for her time and trouble and should do so within two months of the date of my decision.
17. The Council should apologise to Ms L and M for M being out of school from 17 December 2019 until 23 January 2020. It should make a payment of £200 for this missed provision within two months of the date of my decision.
18. As well as ‘writ(ing) to the applicant and offer(ing) to provide free transport for their child’, in cases where free transport has not been granted, when it should have been, the Council has backdated mileage allowance where parents have wrongly been asked to take their child to school. There is no further action for the Council to take.
19. The Council should ensure that staff who make transport decisions are properly trained on SEN transport considerations. It is asked to tell me what action it will take, or has taken, to achieve this within three months of the date of my decision.

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Final decision

20. There was evidence of fault leading to injustice and the Council has agreed to the remedy.

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Investigator's decision on behalf of the Ombudsman