Summary: Miss X complained about the Council’s decision to refuse to provide free home to school transport for her son, Z. The Council did not correctly follow its school transport appeal policy at stage one. However, this did not cause Miss X significant injustice as she was able to make her case to the stage two appeal committee which correctly considered her evidence and decided not to uphold her appeal. The Council has agreed to carry out actions to prevent injustice to others that could be caused by the identified fault.

The complaint

1. Miss X complains about the Council’s decision to refuse to provide free home to school transport for her son Z. She says the Council has not properly considered Z’s circumstances and need to travel to that school.

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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. 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 considered Miss X’s complaint to the Ombudsman, correspondence from the Council and records it made of the school transport appeal.
5. I considered Government statutory guidance – Home to school travel and transport, July 2014
6. I gave the Council and Miss X the opportunity to comment on my draft decision. I considered any comments before making this final decision.

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What I found

What should happen

7. Councils have to provide free home to school transport for eligible children of compulsory school age to attend their “qualifying school”. The relevant qualifying school is the nearest school with places available that provides education the council considers appropriate to the child.
8. Councils should have complaints and appeals procedures to deal with school transport issues. The Government recommends a two-stage procedure with a stage one review by a senior officer.
9. After that stage the council should write to the parent with a detailed written notification of the outcome. This should include what factors were considered and why the decision was reached. The Stage two review is by an independent appeal panel.

This Council’s policy

10. This council’s school transport appeal process has two stages. At stage one the policy says two senior officers consider the request. They decide to uphold or overturn the appeal, or to suggest an alternative. If the Council does not uphold the appeal at this stage, it explains how to appeal to its second stage.
11. At stage two an appeals committee considers evidence, allowing parents to attend. The appeals committee considers whether the case has been correctly considered, following the Council’s policy. In exceptional cases it can decide to award free transport outside that policy.
12. The council says if someone is unhappy with the outcome of this final decision it can escalate to the Ombudsman.

Background

13. Miss X decided to take her son Z out of school 1 because of problems he was experiencing there and concerns about his welfare. Z has autism and Miss X said school 1 was not able to meet his needs. He had been excluded from school for several short periods of time. The school was satisfied it could meet Z’s needs.
14. Miss X got a place for Z at school 2, starting a year behind his normal year group. Miss X says this placement has worked out well so far. Miss X lives outside school 2’s catchment area.
15. She applied to the Council for free transport to take Z from home to school 2. She said school 2 was smaller and had more expertise working with autistic children.
16. The Council replied to say it was not able to provide free transport because Z was not attending his nearest qualifying school (school 1). It explained how to appeal including providing evidence to show any exceptional circumstances.
17. Miss X appealed the decision in July 2019. Her appeal referred to the difficulties Z had at school 1 including his exclusions and how much better he was finding the small classes at school 2. She also explained why taking Z to school 2 was difficult for her.
18. The Council considered her application at the first stage of its appeal process. It wrote to Miss X in August to say a senior officer had considered evidence provided and decided not to uphold the appeal. It said this was because Z was not attending his local school. The Council wrote inviting Miss X to attend the second stage appeal committee meeting. It gave Miss X the chance to add more supporting evidence.
19. The appeal committee met in September 2019. It considered a Council report that said Miss X’s request was based on her preference for school 2. The report summarised Miss X’s reason as being her concerns about how school 1 had treated Z, including by excluding him. The report recommended the appeal committee not uphold the appeal because Z was not attending the nearest suitable school and school 2 was parental preference.
20. The appeal committee considered what Miss X said at the meeting, including her reference to a diagnosis of autism in 2018.
21. Notes of the committee discussion of the appeal show that it considered Ms X’s concerns:
• Her reasons for moving Z to school 2 and that in her view, school 1 could not meet Z’s needs. He had been very unhappy there.
• The reasons for Z’s exclusions from school 1 and his autism diagnosis
• The difficulty for her taking Z to school 2.
22. Notes of the Committee’s discussion show it reconsidered the facts of the case and decided that, on a majority basis, not to uphold the appeal.
23. The Council wrote to Miss X explaining the panel had considered:
• The distance from the family home to school 1 and school 2.
• The reasons Z had been taken out of school 1 and that Miss X felt it had failed in its duty of care.
• Z’s positive progress at school 2.
• The difficulty for Miss X taking Z to school 2, and reliance on family and friends. The difficulty of walking from home to school 2.
• Z’s diagnosis of autism and the Council’s decisions not to give Z an Education, Health and Care Plan because school 1 could meet his needs.
24. The letter said that the Panel, taking account of evidence, decided the appeal be not upheld because:
• The Council’s home to school transport policy had been correctly applied in Z’s case.
• On balance, and by majority decision, there were not exceptional circumstances presented, either social or medical for departure from that policy. The family had decided to move Z to school 2 and should be responsible for his transport there.
25. Miss X complained to the Ombudsman. She said she thought the Council had not properly considered the impact on Z’s mental health and wellbeing if he had stayed at school 1. She provided supportive letters from school 2 and her GP surgery written after the appeal.

My findings

26. We are not an appeal body for school transport complaints. We cannot overturn council decisions about school transport. Our role is to consider whether the Council properly followed the necessary process to consider Miss X’s application, and appeal, to make its decision.
27. The Council considered Miss X’s application including the evidence she provided at that time. Having rejected that application, it considered her appeal at stage one, giving her the opportunity to provide any more evidence.
28. The Council did not correctly follow its policy at stage one for two senior officers to consider that appeal. Its letter of response refers to a single senior officer carrying out the review. Although Government guidance only suggests review by a single officer, the Council should have followed its policy or given reasons why could not.
29. The stage one letter also did not give the detailed, written explanation for what factors the Council considered expected by statutory guidance. It did not show the Council had considered the arguments Miss X put forward to justify her application.
30. However, these faults did not cause Miss X significant injustice. This is because the stage 2 appeal committee gave her the opportunity to present her case, including referring to the autism diagnosis and the difficulties caused by the situation. She was able to describe the problems with school 1 and the benefits the move to school 2 had brought. The committee considered relevant factors and decided, on balance, they did not justify upholding her appeal. This was a decision the committee was entitled to come to, having properly considered relevant evidence.

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Agreed action

31. To remedy the potential for the identified faults to cause others injustice, the Council has agreed that within one month of my final decision it will review its stage one appeal process to:
• Either ensure two senior officers carry out stage one reviews, or amend the policy to state reviews will be by a single senior officer.
• Ensure stage one review letters give a detailed written notification of the outcome including what factors were considered and the rationale for the decision reached.

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Final decision

32. I have completed my investigation finding there was fault in the Council’s actions but this did not cause significant injustice to Miss X. The Council has agreed actions to prevent the identified fault causing injustice to others.

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Investigator's decision on behalf of the Ombudsman