Summary: Ms A complained the Council failed to consider relevant information when it refused to provide her daughter with transport to and from school. There was fault by the Council because the appeal process was not in line with statutory guidance. However, this fault did not cause an injustice to Ms A.

The complaint

1. Ms A complained the Council refused to provide school transport for her daughter, B. Ms A said the Council wrongly referred to statutory distance which is not relevant to children with disabilities, it failed to consider B’s needs and it did not consider whether it was reasonable for her to accompany B to school.
2. Ms A says this caused her distress because she has not been provided with the support she believes she is entitled to.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether the Council’s decision is right or wrong simply because the complainant disagrees with it. We must consider if 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

6. I considered all the information provided by Ms A about her complaint. I also considered the information the Council provided, including its Home to School Transport Policy.
7. I shared my draft decision with Ms A and the Council and I invited them to comment on it.

Back to top

What I found

Legal and administrative background

8. Section 508B of the Education Act 1996 places a duty on councils to ensure that suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school.
9. Schedule 35B says councils have a duty to make transport arrangements for all children who cannot be reasonably expected to walk to school because of mobility problems or because of associated health and safety issues related to their special educational needs (SEN). Eligibility for such children should be assessed on an individual basis to identify their transport requirements.
10. The Government issued statutory guidance in 2014, ‘Home to school travel and transport 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 one: review by a senior officer;
• Stage two: review by an independent appeal panel.

11. The guidance says the independent appeal panel should consider written and verbal representation 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.

Background

12. B has Down’s syndrome and learning difficulties. She has an EHC plan. The EHC plan says she has little sense of danger and no road safety awareness, she finds climbing stairs difficult, she cannot access the community without 1:1 support and she struggles with attention and concentration.
13. B started secondary school in September 2019.

What happened

14. In March 2019, Ms A applied for school transport for B who was due to start secondary school in September. The application was based on the fact B had an EHC plan and learning difficulties.
15. The Council rejected the application in April 2019. It said B did not meet the statutory walking distance required for it to provide school transport.
16. In May 2019, Ms A lodged an appeal on the basis that:

• B has Down’s syndrome, urinary incontinence, and challenging behaviour. B also has an EHC plan and was going to be attending the nearest appropriate qualifying school. Therefore, B met the eligibility for school transport under Section 35B of the Education Act 1996 for assistance;
• B was unable to walk to school due to her mobility issues and could not walk for any length of time without complaining of aches and pains;
• The school was 0.8 miles away from home and the nature of the route was steep and had a major intersection with traffic lights;
• B’s behaviour meant none of her friends and family could look after her; and
• B’s urinary incontinence meant she needed access to a toilet quickly which meant walking or waiting for a bus would make her condition worse.

17. Ms A also included a letter from her GP in support of her appeal.
18. The Council rejected the appeal in June 2019 on the basis that:

• B’s SEN and the mobility issues did not prevent her from being able to safely walk to school with the help of an adult;
• B was already walking 0.5 miles to her primary school and the distance to the secondary school would be 0.8 miles which was a difference of 0.3 miles. It also said it would be in B’s interest to improve her mobility by walking to school;
• It would expect a responsible adult to accompany B if Ms A felt the route was unsuitable for B to travel independently. It felt that with the correct strategies in place, B would be able to make the journey to school. The school could help with this;
• It did not feel the lack of other adults able to look after B was an exceptional circumstance. It was up to Ms A to ensure there was support in place from another responsible adult; and
• It could not provide transport on the basis B was urinary incontinent. This was because using shared transport would not be any quicker than walking to school and would not address the issue.

19. In July 2019 Ms A escalated her appeal to stage two. The basis of her stage two appeal was that it was not reasonable for the Council to expect her to get travel strategies from the school. She also said the Council had ignored her health problems and that she was already socially isolated. As a result, she had no one else who could help with B’s care.
20. The Council responded in August 2019 and acknowledged B’s exceptional needs. However, it considered it had applied its policy correctly. It also said its position that B could walk to school with an adult was reasonable and it could not find any exceptional reasons to offer home to school transport.

Back to top

Analysis

21. It is not the Ombudsman’s role to decide whether a Council should provide school transport for a child. We can only consider if there was fault in how the Council reached its decision.
22. The Council’s policy applied in this case sets out a review process at which the stage two review is carried out by the Assistant Director of Adult and Older People’s services. In Ms A’s case, the stage two review was carried out by the Director of Health and Adult Services. This is contrary to the statutory guidance which sets out an independent panel process. The Ombudsman expects councils to follow the statutory guidance unless they have good reasons to depart from it.
23. The Council has previously accepted in another Ombudsman investigation about a similar matter it was fault where parents did not have an opportunity to make verbal representations during the appeal process. It was not able to produce good reasons for departing from the statutory guidance in that case and has not done so here either.
24. The Council started a formal consultation on a new travel assistance policy in January 2019 and concluded this in March 2019. The revised policy was updated in September 2019 and now sets out a stage two appeal process that includes an independent appeals panel, in line with the statutory guidance. I am satisfied this addresses the fault identified in this case and I do not intend to recommend any further changes.
25. The Education Act 1996 says usual transport requirements should not be considered when assessing transport needs of eligible children due to SEN. Therefore, the Council’s initial decision to reject Ms A’s application based on B not meeting the statutory walking distance was fault.
26. While I have identified fault in the Council’s appeal process and the initial decision letter it sent to Ms A, I am not satisfied this has caused her an injustice. The Council’s stage one appeal decision letter is comprehensive and it considers B’s needs and whether it would be reasonable for Ms A to accompany B to school. The fact that the Council decided there were no exceptional reasons to provide transport for B does not mean the decision was wrong. The Council was clear in its response when it said B’s SEN did not prevent her from walking to school in the company of an adult.
27. The Education Act 1996 does not automatically place an obligation on the Council to provide transport for a child with SEN. Instead, it says eligibility for such children must be decided on a case by case basis. The Council only becomes obligated to provide transport if the child cannot be reasonably expected to safely walk to school or be accompanied as necessary.
28. The Council had sight of the EHC plan and the letter from B’s GP but still decided that it would not be unreasonable for B to walk to school if she was accompanied.
29. I recognise B’s EHC plan acknowledges she has mobility problems and challenging behaviour. However, it also acknowledges she needs encouragement to walk as much as possible. The journey to school is approximately a 15-minute walk. The Council recognised this in its stage one response where it said it would be in B’s interests to improve her mobility by walking to school. The Council also made it clear the journey using school transport would not be quicker.
30. Ms A says the Council failed to consider her medical conditions and the fact she is socially isolated which means she would struggle if she could not take her daughter to school. However, parents are ultimately responsible for ensuring their child attends school. The Council did not consider Ms A’s medical condition to be exceptional enough to provide school transport.
31. The evidence shows the Council considered Ms A’s case in detail and it provided reasons in line with the Education Act 1996 why B should not be provided with school transport. It is therefore unlikely that had Ms A been able to present her case verbally to an independent panel, it would have come to a different view. I cannot therefore conclude Ms B has suffered injustice because of the identified failings in the Council’s appeal process.

Back to top

Final decision

32. I have completed my investigation. The Council was at fault because its appeal process was not in line with statutory guidance. However, this fault did not cause an injustice to Ms A.

Back to top

Investigator's decision on behalf of the Ombudsman