Summary: Mrs C complained about the Council’s decision to remove free school transport for her children when their needs have not changed. The Council failed to apply its policy correctly which meant it wrongly said Mrs C’s children did not qualify for transport assistance. The Council also failed to keep proper records of its decisions and failed to follow its appeal policy and Government guidance. Those errors meant Mrs C’s children missed more than five months of education as they could not get to school and it caused Mrs C significant distress and time and trouble. Payment to Mrs C, a payment to be used for the children’s education, training for officers dealing with school transport applications and a review of its policy is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained the Council:
• refused to provide school transport for her two children when their needs have not changed and they received school transport previously;
• failed to provide the school transport her children needed when it changed its decision; and
• refused to consider her complaint.

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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)
4. 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)
5. 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.

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mrs C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs C 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

Background

8. Both of Mrs C’s children have special educational needs. The children received free school transport until 2018 when the Council decided they were not eligible as they lived within the statutory walking distance of the school. Mrs C appealed that decision and received transport assistance for the academic year 2018-19. At the end of the academic year the Council again told Mrs C her children were not entitled to transport assistance.
9. Mrs C appealed that decision. In response the Council told Mrs C the appeal had been unsuccessful due to distance. The letter refusing the appeal did not set out the Council’s consideration of the points Mrs C raised in her appeal.
10. Mrs C asked for her appeal to go to stage two. Instead of arranging a panel an individual officer considered the appeal in October 2019. The Council agreed to provide travel assistance due to the children’s needs. The Council then decided to offer Mrs C transport assistance of £15.38 per day. Mrs C raised concerns about that because she said the amount would not be enough for her to pay a taxi to take her children to and from school.
11. The Council wrote to Mrs C again in December 2019, refusing to provide group transport. The Council said it had refused that as Mrs C’s children lived within statutory walking distance from the school, could walk by a safe route and would be expected to be accompanied by their parents. The Council again offered £15.38 as a daily personal budget. As Mrs C could not afford to send her children to school on suitable transport with that amount her children continued to not attend school.
12. In March 2020 the Council identified it had used Google Maps to calculate the home to school distance for Mrs C’s children rather than the method used by school admissions. When the Council used the method used by school admissions it identified Mrs C’s children lived outside the statutory walking distance to school. The Council therefore awarded transport assistance. Mrs C’s children began attending school on 16 March 2020 until schools were closed due to COVID-19.
13. The Council has arranged transport assistance from September 2020, although there was some confusion before the start of term about the transport arranged.

Council policy

14. The Council’s home to school travel assistance policy refers to the statutory duty to provide suitable travel arrangements for eligible children. It says eligible children are those who meet any or more of the following criteria:
• unable to travel any distance to school even if accompanied due to their special educational needs or disability;
• those who live outside the statutory walking distance from home to school which is three miles for children aged between 8 and 16 with mileage calculated using a safe walking route;
• those that live within walking distance but, due to the nature of the route, cannot reasonably be expected to walk to school; and
• those whose parents receive the maximum working tax credit or are eligible for or claiming free school meals based on income. Mileage is then reduced to a minimum of two miles.
15. The Council’s policy says travel arrangements provided under this duty must be provided free of charge. The duty applies to children who attend their nearest appropriate school.
16. The Council’s policy says it has a discretionary power to provide travel assistance for a child who is not otherwise eligible.
17. The Council’s policy says the walking distance is measured by the shortest available walking route which may take into account public footpaths where they are available. It says the shortest available walking route is one where a child, accompanied as necessary by a responsible adult or parent, can walk safely. It says routes can only be considered hazardous if it is hazardous for both an adult and child to walk together. The policy says all distances between children’s homes and schools are measured using the Council’s GIS system so all children are assessed consistently.
18. The policy says parents are entitled to appeal against decisions to refuse their application for free or subsidised travel assistance for a child. It says at stage one a senior casework officer will review the original decision and send the parent a detailed written notification of the outcome of the review. The policy says the notification will set out the nature of the decision reached, how the review was conducted, detail about other departments or agencies consulted as part of the process, what factors the Council considered and the rationale for the decision reached.
19. The Council’s policy says a stage two appeal is considered by an independent appeal panel. That panel will consider written representations from both the parent and officers involved in the case. The same requirements in relation to notification of the outcome are required as in a stage one appeal.

Government guidance

20. The Government has set out a recommended two stage review and appeals process for parents who wish to challenge a decision about their child’s eligibility for travel support:
• Stage one: Review by a senior officer.
• Stage two: Review by an independent appeal panel which will consider written and verbal representations.
21. Although these are only recommendations, they are based on statutory guidance. The intention was to ensure a consistent approach across all areas and to provide a completely impartial second stage. Therefore, the Council would need good reason to divert from them.

Analysis

22. There has been significant confusion in the Council's handling of this case. Overall the Council's record-keeping and communications with Mrs C have not been clear or complete. That has caused significant distress to Mrs C. I am particularly concerned about the way the Council approached its determination of whether Mrs C's children are entitled to school transport. It has only now become clear in 2020 the Council was using a different mapping tool to calculate home to school distances for school transport compared with the mapping tool used by school admissions. What that means, in effect, is school admissions allocated places at schools based on one method of calculating the distance between home and school but then school transport used a different method of calculating the distance to decide whether to award school transport. That, in itself, is fault. I am concerned it took the Council until 2020 realise its error.
23. I am also concerned the Council relied on Google Maps to calculate the route between Mrs C’s home and the school allocated to her children. I do not consider that was in accordance with the Council’s home to school travel assistance policy. That policy makes clear mileage is calculated using a safe walking route. It should have been clear to the Council Google Maps would not necessarily identify a safe walking route. The policy also says all distances between children's homes and schools are measured using the Council's GIS system. Failure to follow that in this case is fault.
24. I am satisfied if the school transport department had followed its policy and used the same mapping tool as school admissions, as it should have done, Mrs C's children would have received school transport throughout. That is because they live more than three miles from the school. Failure to carry out that process properly has therefore caused Mrs C significant distress. It has also left her children unable to attend school between September 2019 and March 2020 because her children could not travel alone, she could not escort them due to her medical condition and the personal budget awarded by the Council in December 2019 was not enough to get her children to school safely. That is a significant injustice.
25. There were also many other errors in this case. That included:
• failure to properly consider Mrs C's arguments at the stage one appeal;
• failure to keep a documentary record of the stage one appeal consideration and decision;
• failure to address in the stage one decision the arguments Mrs C put forward in support of her appeal;
• failure to arrange a stage two panel. It was not acceptable for a single officer to decide to award a personal budget in December 2019 and avoid the stage two panel when a personal budget is not what Mrs C had asked for. That was a breach of the Council's procedure and Government guidance as a stage two panel should have taken place at which Mrs C could put her arguments for school transport and the type of school transport in person;
• failure to document the reason for awarding group transport in 2020 which meant at the start of the September 2020 school year officers could not identify what had been agreed in the absence of the officer that made the decision; and
• failure to consider whether it was cheaper to include the children in group transport than offering Mrs C a personal budget until 2020.
26. Those faults are significant and raise concerns about the way the Council approaches decisions about school transport. In this case though, the main fault concerns the Council's failure to use the same mapping tool as school admissions and that referred to in its policy when calculating home to school distances. Had the Council completed that process correctly Mrs C would not have had to appeal and the further faults identified in the bullet points above would not have occurred as those processes would not have been needed.
27. As remedy for the complaint I recommended the Council pay Mrs C £750 to reflect her significant distress and the time and trouble she had to go to pursuing her complaint. For Mrs C’s children, I consider they have lost out on education between September 2019 and March 2020 because of the Council failing to award school transport when it should have done. The Ombudsman normally recommends an amount between £200 and £600 for each month of missed education. Our guidance identifies children with special educational needs and those that received no education at all as being circumstances where the amount is more likely £600 per month. In this case both Mrs C’s children have special educational needs and neither received any education between September 2019 and March 2020. I therefore recommended the Council pay £600 per month for each child for that period. Taking into account school holidays and the date from which the Council made school transport available this equates to 5.5 months. I therefore recommended the Council make available £6,600 for the two children (£3,300 each) to be used for their education. The Council should liaise with Mrs C to agree how those amounts can be used to benefit her children's education. I recommended that amount having considered the personal budget offered by the Council. I consider a financial award suitable despite that offer given Mrs C could not identify transport for her children which cost no more than £15.38 per day, because the Council knew Mrs C could not escort her children to school herself due to her medical situation and because if the Council had handled the case correctly it would have awarded school transport from September 2019.
28. I also recommended the Council carry out training for officers in its school transport department to ensure they are aware of the process for when a parent appeals and of how to calculate distances between home and school when considering applications for school transport. That training should ensure those officers know how to check whether a child receives free school meals given this affects the distance used from home to school. The training should address the need to keep full records of decision making so a third party can identify the decision and the reasons for it.
29. As the Council has been using a different mapping tool for deciding whether to award school transport until 2020 it should reconsider cases refused transport assistance on distance grounds from the start of September 2019. That is to ensure other families have not missed out on transport due to an incorrect calculation of distance between home and school. The Council has agreed to all my recommendations.
30. Mrs C also says the Council failed to consider the complaint she put in following the removal of transport assistance in 2019. It is clear Mrs B put in two letters in September 2019. The first was her letter of appeal. The second was a letter of complaint. The Council did not deal with that as a complaint and instead dealt with Mrs C’s appeal. I do not criticise the Council for doing that given the complaint was challenging the merits of the decision to refuse transport assistance. So, the Council was not wrong to treat it as an appeal.

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Agreed action

31. Within one month of my decision the Council should:
• apologise to Mrs C for the faults identified in this statement;
• pay Mrs C £750 to reflect her distress and time and trouble pursuing the complaint; and
• allocate Mrs C’s children £3,300 each to be used for their education and arrange a meeting with Mrs C to discuss how to use that money to make up for their lost education.
32. Within two months of my decision the Council should:
• carry out training for officers dealing with school transport applications and appeals which should cover:
1. the process for when a parent appeals;
2. how to calculate distances between home and school when considering applications for school transport; and
3. how to check whether a child receives free school meals given this affects the relevant distance from home to school.
• send a memo to officers dealing with school transport applications and appeals to ensure they know to keep full records, detailing decision-making; and
• review its home to school travel assistance policy to ensure the section relating to transport appeals reflects Government guidance that parents should be able to present their case verbally as well as in writing.
33. The Council should also check cases where it has refused transport assistance due to the calculation of distance from home to school since September 2019 to see whether there are other cases it has refused on distance grounds based on Google Maps which would otherwise have been approved.

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Final decision

34. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman