Summary: Ms B complains that the Council wrongly refused to provide free home to school transport for her son, C, after he changed schools but, instead, agreed to provide a free bus pass. Ms B says travelling on public transport and walking through busy streets causes C distress and anxiety because he has autism, ADHD and learning difficulties. The Ombudsman finds fault in the way the Council considered Ms B’s appeal. 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 make verbal representations.

The complaint

1. Ms B complains that the Council has wrongly refused to provide free home to school transport for her son, C, after he changed schools but, instead, agreed to provide him with a free bus pass. Ms B says that travelling on public transport and walking to the bus stop through busy streets causes C distress and anxiety because he has ADHD, autism and learning difficulties. Ms B also says the Council has not taken proper account of her family circumstances and, as a result, she is unable to get both her children to school on time placing her under a great deal of stress.

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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. 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

3. I have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided.

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What I found

Legal and administrative background

4. The Education Act 1996 says councils must provide free home to school transport for eligible children of statutory school age to qualifying schools.
5. 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.
6. 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.
7. 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.

8. 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.
9. 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

10. Ms B applied for free home to school transport for her son, C, to attend a secondary school, School X. At the time he was receiving specialist transport to his primary school because he has autism, ADHD and learning difficulties.
11. The Council agreed to provide C a free travel pass to use on public transport. It wrote to Ms B explaining this and said it expected a parent to accompany him on the journey to and from school.
12. Ms B appealed against the Council’s decision. She explained this was a lengthy journey involving two buses and a walk across the city centre at rush-hour. C has sensory needs and cannot deal with busy, noisy places. She said he becomes stressed and lashes out, shouts and swears. She said that, after such a stressful journey to school, C would not be able to engage in education. He would also worry about the return journey during the day and this could impact his attendance at school.
13. The stage 1 appeal was considered by an officer. She completed a form which stated that, although C had an education health care plan (EHCP), School X was not named on the plan. The officer stated it was the parents’ choice to send C to School X and a closer school could have met his needs. She decided the journey was reasonable and there was no reason why one of C’s parents could not take him to school on public transport as neither of them were working. She dismissed the appeal and wrote to Ms B confirming her decision.
14. Ms B asked for her appeal to be escalated to stage 2. She explained C’s medical condition, the time it would take to travel on public transport and the cost of a bus pass for herself to accompany C to school every day. The appeal was considered by the Education Awards (Review) Sub-committee.
15. Ms B was not invited to attend the appeal hearing. A Council officer outlined the reasons for the decision not to grant travel assistance and the circumstances put forward by Ms B in support of her appeal. The sub-committee considered these points and dismissed the appeal. It decided the reasons put forward by Ms B were not sufficient to justify an exception being made to the Council’s policy. The sub-committee considered a bus pass was sufficient and it was parental choice to send C to School X and there was a nearer school that could meet his needs. C could be supported by one of his parents to and from school each day. The Council wrote to Ms B confirming the outcome.

Analysis

16. 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.

Appeal process

17. 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.
18. The Council’s policy in force at the time of Ms B’s application stated that a stage 1 appeal would be considered by a senior officer and, if stage 1 was unsuccessful, the decision could be reviewed by an independent appeal panel. However, it did not allow parents the opportunity to attend the hearing and make verbal representations. The Council changed its policy in June 2019 and now does allow parents the opportunity to attend and make verbal representations.
19. I find the appeal process in place at the time of Ms B’s application failed to 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.
20. 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. Ms B was not given the opportunity to attend the hearing to put her arguments to the panel in person. This was fault.
21. Officer X was present at the panel hearing and presented the Council’s case verbally to the panel. This was procedurally unfair as both parties should be given equal opportunity to present their case and to respond to arguments presented by the other side. A decision maker must be impartial and avoid the appearance of bias. Allowing Officer X to put forward verbal arguments to the panel when Ms B was denied this opportunity was fault.
22. Ms B 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. This causes her a significant injustice.

Consideration of Ms B’s appeal

23. The notes prepared by the officer for the panel state, “as identified in stage 1 there is a closer named school in EHCP which would reduce the journey significantly”. The minutes of the stage 2 hearing also state that School X is not named on the child’s EHCP. This is incorrect. The EHCP considered by the officer at stage 1 and the panel at stage 2 was dated October 2016 and was clearly out of date because it referred to C’s primary school. Ms B’s application was for transport to C’s secondary school which he was due to start in September. The up to date EHCP dated February 2019 named School X. Ms B’s appeal was considered several months after this so the Council should have obtained an up-to-date copy of the plan before reaching a decision on the appeal. Failure to do so was fault and meant the stage 1 and stage 2 appeals were decided on inaccurate information.
24. In addition, there is no evidence as to how the sub- committee considered the impact of the journey on C in view of his autism. There is no mention of the fact that he was previously receiving specialised transport to primary school because of this and why this was no longer considered necessary. The notes of the hearing simply state that his medical condition was noted.
25. There is also no evidence that the subcommittee considered Ms B’s argument that she could not afford to buy a bus pass to accompany C to school.
26. Failure to specifically consider these points was fault and caused Ms B a significant injustice because she is left with uncertainty as to whether her arguments were properly considered.

Decision letters

27. I find the stage 1 decision letter is inadequate. It simply states that the Council dismissed the application because “the additional information you provided did not warrant a change in the original decision”. It does not explain why the officer came to this view or how she considered Ms B’s arguments, particularly her argument that C was unable to travel safely on public transport and walk through busy streets.
28. The stage 2 decision letter set out the factors considered by the sub-committee and its decision that there were no exceptional circumstances to justify a departure from the Council’s policy. But it does not explain why the sub- committee decided C’s sensory issues did not amount to exceptional circumstances. The appellant’s arguments should be addressed in the decision letter. Failure to do so was fault and caused Ms B further injustice because she is unable to understand the reasons for the decision.

Agreed action

29. To remedy the injustice caused to Ms B, the Council has agreed that, within one month of this decision, it will:
• apologise to Ms B for the faults identified above;
• offer Ms B a fresh appeal with a new panel, including the opportunity to attend the panel meeting and make verbal representations; and
• issue a reminder to officers that decision letters must clearly communicate the reasons for the decision to the appellant.

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Final decision

30. I find there was fault in the way the Council handled Ms B’s appeal for free home to school transport for her son.
31. 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