Summary: Mrs X complained about the way the Council considered her application and appeal for home to school transport for her son, Y, who has special educational needs. The Council was at fault as it failed to properly consider whether Y could reasonably be expected to walk to school because of his special educational needs, disability or mobility. It has agreed to carry out a fresh assessment of need and issue a fresh decision.

The complaint

1. Mrs X complains about the way the Council considered her application and appeal for home to school transport for her son, Y, who has special educational needs. In particular, she says it failed to take his individual circumstances into account or to seek additional information regarding his ability to walk to school. Mrs X says Y will miss out on education because of this.

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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. 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. 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

5. I have considered the information provided by Mrs X on the telephone and in writing. I have considered the Council’s response to my enquiries.
6. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching my final decision.

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What I found

7. Under the Education Act 1996 councils have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances. They have discretion to provide transport for children who are not entitled to free transport. They may charge for this transport.
8. Councils must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
9. The relevant ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have.’
10. Eligible children include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs (SEN), disability or mobility problem. For children with SEN, eligibility should be assessed on an individual basis to identify their particular transport requirements. If a school is named unconditionally in a child’s education, health and care plan (EHC plan) then it is the child’s nearest suitable school.
11. The home to school travel and transport statutory guidance (July 2014) says ‘for arrangements to be suitable they must also be safe and reasonably stress free, to enable a child to arrive at school ready for a day of study’.

The Council’s home to school transport policy

12. The Council’s home to school transport policy sets out that ‘a child of compulsory school age with special educational needs, a disability or mobility problems who cannot reasonably be expected to walk to school, will receive free school transport, regardless of distance’.
13. For those with SEN, the Council’s policy says eligibility is assessed on an individual basis, which includes the following:
• The child must be attending the nearest appropriate school as determined by the Special Educational Needs (SEN) service.
• By reason of their SEN, a disability or mobility problem (including temporary medical conditions) the child cannot reasonably be expected to walk to school
• Eligibility will be assessed on an individual basis and any evidence submitted e.g. from a medical practitioner will be taken into consideration.
14. Under its discretionary powers the Council may offer a spare place on a contract vehicle to a child who is not entitled to free transport assistance. It will be withdrawn if it becomes clear that it is needed by an entitled child or if re-tendering or re-planning changes the route or reduces the number of concessionary seats. The Council charges for this at a flat rate of £600 a year (reviewed annually) for journeys of up to 5 miles.
15. The Council’s appeal process for those wishing to challenge a home to school transport decision comprises a review by a senior officer. There may then be a further appeal to an Independent Appeal Panel who will consider written and verbal representations from the parents and officers involved in the case. It will confirm the outcome in writing.

What happened

16. Mr and Mrs X applied for home to school transport, to start from September 2019, for their son Y. Y has special educational needs (SEN) and Attention Deficit Hyperactivity Disorder (ADHD), a mental health disorder that can cause above normal levels of hyperactive and impulsive behaviours. Y has an Education and Health Care (EHC) Plan. Y lives 2.5 miles from the school named in his EHC plan and he is over the age of 8.
17. The Council refused the application for home to school transport as it considered the journey to school was a safe walking route and he lived less than three miles from the school. It did not agree to transport assistance as an exception to policy.
18. Mr and Mrs X appealed against the decision. They said it was impossible for Y to walk safely to school as he has no sense of danger, anxiety and was impulsive. He had tried the bus but was unable to use this due to anxiety and cycling was too dangerous. Mrs X said she could only take him to school on certain days due to her work commitments. Mrs X said this would have a huge impact on his attendance.
19. A senior officer reviewed the application and wrote to Mr and Mrs X in October 2019 refusing the appeal. Under its discretionary powers it offered Y a bus pass.
20. Mr and Mrs X appealed to the independent appeal panel. They provided copies of medical reports and a letter from Y’s school in support of the appeal. A letter from the Child and Adolescent Mental Health Services said Y ‘has a very high level of impulsivity levels and poor concentration. Due to this [Y] can be a danger to himself in situations that involve crossing roads and having to be careful of traffic. It went on to say that Y would not be able to manage a 2.5 mile journey unsupervised. It noted Y’s current school attendance was 72% and had recently reduced further to 57.6%. His high levels of anxiety meant he struggled with using the bus. It stated he would benefit greatly from a taxi and his attendance would dramatically increase.
21. The appeal panel heard the appeal in November 2019. During the appeal, the Council offered Y a place in a shared taxi as the taxi’s route could be altered to collect him and drop him home.
22. At the appeal Mr and Mrs X explained Y was impulsive with no sense of danger or consequence. They also considered sharing a taxi was not an option. They said Y did not go to school when Mrs X did not take him. They said he was granted a bus pass but was too anxious to use the bus. The panel asked what it was about his special educational needs that meant he would require transport. Mrs X said the walking route was too far. The panel asked about the impact if it did not provide transport. Mrs X explained this would have a significant impact on his attendance as she could only take him on limited days. She said it would be catastrophic to his education.
23. The notes of the panel’s deliberations record a panel member said in reality if they did not provide transport he will not access education at all. One member stated Y could not be expected to walk while another said road safety was not an issue. The notes record the Chair said ‘walking or busy bus – not suitable for him’. The panel were not certain whether a taxi would work out for Y. They noted Y’s interaction with other pupils was positive and recommended a place in a shared taxi on a discretionary basis with his parents paying £600 a year.
24. The Council wrote to Mr and Mrs X with the appeal decision three days after the appeal. The letter said the Council had correctly applied its policy when it first considered the application and it was entitled to decline the appeal at stage 1. It said Y lived 2.5 miles distance from school. ‘The journey has been deemed a safe walking route and [Y] therefore falls outside the rules that would entitle him to home to school transport as he lives under three miles from the school.’ It stated it had reviewed the evidence and concluded ‘there were no evidential reasons to show [Y] was not capable of walking to school’. The panel noted the evidence Mrs X provided and agreed to offer Y access to a shared taxi, at an annual charge of £600, as set out in the Council’s home to school transport policy.
25. Mrs X complained to the Ombudsman. She complained the Council had not carried out an individual assessment or requested information from the school or health service about Y’s ability to get to school.

Findings

26. The Ombudsman does not question the merits of decisions properly made. We consider the conduct of an appeal hearing but we are not a second appeal and do not consider the merits of the argument afresh. Our role is to consider whether there is evidence of procedural fault in the conduct of the application process or appeal and if so whether this undermines the appeal decision. If we find fault, we may recommend a fresh decision/appeal.
27. The statutory guidance says local authorities should not apply the normal walking distance rules where a child has disabilities or mobility problems which affect their ability to walk. Instead, their application should be on a case by case basis, taking into account the child’s individual abilities.
28. Y has special educational needs (SEN) and so the home to school distance was irrelevant. The Council refused Y’s application based on the home to school distance. It repeatedly referred to the statutory walking distance in assessing Y’s application for home to school transport. This is fault. According to the statutory guidance and the Council’s own policy, the Council should have considered Y’s ability to walk to school, on an individual basis, to identify his particular difficulties and transport requirements.
29. Mrs X provided evidence from medical professionals and Y’s school in support of her appeal and there is no reference to any consideration of this in the notes of the appeal panel. This is fault.
30. The notes of the appeal hearing are confusing. They do not show the panel considered, on the evidence available, whether Y could reasonably be expected to walk to school because of his special educational needs, disability or mobility. The notes show a panel member said road safety was not an issue, one said he could not be expected to walk while another noted walking was not suitable for him.
31. Y is receiving home to school transport as the Council has awarded Y a place in a shared taxi on a discretionary basis. The panel took the view Y could share a taxi and from the notes of the panel, there was no fault in the way it reached this view. However, as the place in a shared taxi was awarded on a discretionary basis, the Council is charging for this. If the panel considered Y could not walk to and from school because of his disability or SEN he would be an ‘eligible’ child and the cost would be free.
32. The Ombudsman cannot decide whether Y should receive home to school transport. That is a decision for the Council to make. However, the Council has not used the correct criteria to assess Y’s application. In addition, there was fault in the appeal because the notes of the appeal appear contradictory about whether Y should be an eligible child.

Agreed action

33. The Council has agreed, within two months of the date of this final decision, to reconsider Y’s application for home to school transport, taking into consideration the evidence Mrs X has provided. If it decides Y should receive transport it will refund any payments/cancel any charges made for Y’s home to school transport. If the decision is not to provide free transport, Mrs X will be given her right of appeal in line with the Council’s policy.
34. Within two months, the Council has agreed to remind its staff of the need to carry out an individual assessment, in line with the statutory guidance, when dealing with applications for home to school transport made on SEN/mobility grounds.

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Final decision

35. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman