• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mr and Mrs B complain the Council refused their application for assistance with school transport for their daughter, X. They consider the Council did not properly consider her needs and the family’s circumstances. The decision meant X could not go to school. There was fault in the Council’s handling of the appeal. The Council has reviewed the decision and is providing transport. It will apologise and make a payment to Mr and Mrs B. It has also reviewed how it handles appeals.

The complaint

1. Mr and Mrs B complain the Council refused their application for assistance with school transport for their daughter, X. They consider the Council did not properly consider her needs and the family’s circumstances. The decision meant X could not go to school.

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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)

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How I considered this complaint

4. I considered the complaint and documents provided by Mr and Mrs B and spoke to them. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr and Mrs B and the Council and considered their comments.
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.

Summary of the relevant law and guidance

6. We expect councils to publish policies and follow their policies when considering requests for post-16 transport. Policies must comply with the law and statutory guidance. Councils should consider the individual circumstances of each case and not blindly apply blanket policies or make assumptions. Councils must decide what transport arrangements are necessary and make arrangements they consider necessary for all post-16 learners.
7. The Education Act 1996 and the statutory guidance list a number of factors to which councils must have regard when considering what arrangements are necessary, including the needs of those who could not attend if no arrangements are made, young people in rural areas, cost, and special educational need. We expect to see evidence councils have considered all these factors and can give reasons for their decisions.
8. If a council decides transport is not necessary, we expect it to be able to demonstrate, in line with statutory guidance, that there is a safe, affordable way for the learner to attend sixth form/college and to have choice in what they study.

The Council’s policy

9. The Council’s policy states that parents are expected to accompany their children to school or college where necessary until they turn 18 unless there is a good reason why it is not reasonable to expect them to do so. It says the vast majority of young people do not receive or require travel support from the Council and, unless the circumstances are exceptional, the only category of young persons of sixth form age the Council will consider providing travel assistance for are those with an Education Health and Care Plan, a disability or learning difficulties.
10. The Council’s policy on appeals, which is dated May 2019, follows the recommended process. The first stage is a review by a senior officer. The second stage is a panel of three officers independent of the original decision maker which will consider written and verbal representations.

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What I found

11. Mr and Mrs B’s daughter, X, was 16 and due to start at the sixth form of the school she was attending in September 2019. X has an education health and care plan (EHCP) and it is accepted she would not be able to travel on her own.
12. Mr and Mrs B have four younger children, two of which were at school, one who was starting at nursery in September and a baby. Mr B worked fulltime but working various and unpredictable hours. Their view was that they would be unable to transport X to school so applied for assistance with school transport.
13. The Council rejected the application because it did not consider the reasons presented were exceptional enough. Mr and Mrs B appealed. They said that they could not rely on Mr B being able to take X to school and in support provided an email from his employer saying he did not have fixed contract hours and could be called out at any time. They also provided a letter from their doctor saying X would not be able to travel independently.
14. The Council rejected the appeal. Its file notes show that this was because it required further information/evidence of Mr B’s work commitments. The officer noted that she had told Mr B that in a phone call.
15. Mr and Mrs B appealed at the next stage. The Council again rejected it because no evidence has been supplied about Mr B’s employment. The Council also noted there was a before and after school club at two of the schools so if Mr B was not available Mrs B could still get the children to and from school.

Analysis

16. When a council is rejecting an application it should provide reasons for the decision. The decision letter did not give any detail of the reasons for the rejection other than the circumstances were not exceptional enough. The letter giving the decision on the stage one appeal also gives no reasoning or explanation of the decision. This is fault – Mr and Mrs B should have had a clear explanation of why their application and appeal were unsuccessful. However I note the reviewing officer had spoken to Mr B to explain more about what was needed.
17. The statutory guidance and the Council’s own policy provides for the stage two appeal to be considered by a panel of three officers who have not been involved in the decision. And that the applicant will be able to make written and verbal representations. The Council has commented that appeals for applications for transport received before 1 June 2019 were heard by councillors and parents were not invited to attend. This is not in accordance with the Council’s own policy, or the statutory guidance, and is fault.
18. In response to the draft of this decision the Council reviewed the case and decided to award transport from September 2020. I consider that is the decision the Council would have come to had it considered it properly in 2019. I therefore consider there should be a payment to Mr and Mrs B to reflect the loss of transport for the 2019/2020 school year.

Agreed action

19. The Council will, within a month of this decision, apologise for the faults in the handling of the appeal and pay £500 to Mr and Mrs B.
20. The Council has confirmed that appeals are now considered in accordance with its policy and statutory guidance and appellants are able to appear in person. And that reasons are given for the decisions made.

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Final decision

21. There was fault in the Council’s handling of the appeal. It will apologise and make a payment to Mr and Mrs B.

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Investigator's decision on behalf of the Ombudsman

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