The Ombudsman's final decision:
Summary: Mrs S has complained about the way the Council responded to her request for school transport for her son, T, who has an Education and Health Care Plan and attends an out-of-borough school. The Ombudsman has found fault in the way the Council considered Mrs S’s response to the refusal of her school transport application. We consider that the actions already taken and proposed by the Council, together with the further agreed actions represent a suitable remedy for the injustice to Mrs S and T.
- Mrs S complains that the Council wrongly refused free school transport for her son in September 2019, and there were multiple failings in the way the Council dealt with her application. This has caused considerable stress, inconvenience, and expense.
- She complains that when preparing T’s Education, Health and Care Plan in 2017, the Council should have obtained advice from an Educational Psychologist and named the school as the nearest suitable school.
- She also says she could not appeal against the naming of the school as “parental preference” because the Council failed to issue decisions after the last two Annual Reviews.
What I have investigated
- I have investigated Mrs S’s complaint about the way the Council considered her application for school transport for T, and the failure to issue decisions after T’s latest Annual Reviews. The final section of this statement sets out matters that I have not investigated.
The Ombudsman’s role and powers
- 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)
- 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)
- The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34T, as amended)
- Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).
How I considered this complaint
- I have considered Mrs S’s written complaint and spoken with her and her adviser. I have made enquiries of the Council and considered the Council’s response and Mrs S’s comments on that response. I have taken into consideration the relevant law and guidance and the Council’s Home to school travel assistance policy for children and young people. I have also sent Mrs S and the Council a draft decision and considered their comments.
What I found
Legal and administrative background
The law and the statutory guidance about school transport
- As set out in the Education Act 1996, councils must make arrangements to provide suitable free school transport to those “eligible” children of statutory school age who:
- attend their nearest suitable school and live further than the statutory walking distance - this is two miles for children aged less than eight years old and three miles between eight and 16;
- live within walking distance but cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs or disability;
- are entitled to free school meals or whose parents are in receipt of the maximum Working Tax Credit if: their nearest suitable school is more than two miles away (if they are aged eight to eleven); the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief;
- live within walking distance of the school but cannot reasonably be expected to walk to school because the route is deemed unsafe to walk. (Education Act 1996 section 508B and Schedule 35B)
- The Government issued statutory guidance on home to school transport in July 2014. This advises that eligibility for children with an Education, Health and Care Plan (EHCP) and/or disability should be assessed on an individual basis to identify their particular transport requirements. The usual transport requirements should not be considered when assessing their transport needs.
Transport for children with Special Educational Needs (SEN)
- A child with special educational needs may have an EHCP. This sets out the child’s needs and the necessary arrangements to meet them. The EHCP is set out in sections. The Ombudsman cannot direct changes to the sections about education or name a different school (Section I). Only the SEN Tribunal can do this.
- If a school is named in Section I of an EHCP, it does not automatically mean that transport will be provided. The child still has to come into one of the categories of eligible pupil above. Provided that any relevant conditions are met, and the child is attending the “nearest suitable school”, they will qualify for free transport,
- However, where the parents’ preferred school is further away than the school the Council considers the most suitable, it is entitled to name the closer school if the cost of transport to the parents’ preferred school is significantly higher. In such cases, the Council has to name both schools in section I of the EHCP and specify the condition that the parents will pay for the transport. The parents’ preferred school named in Section I would then be regarded as “parental preference”.
The Council’s policy
- The Council’s Home to school travel assistance policy for children and young people sets out the basis on which it will provide transport. The policy includes the following provisions:
- “Students may be eligible for travel assistance… due to… the impact of the student’s special educational needs and disabilities on their ability to travel safely independently or with supervision.”
- “If the student has an education, health and care plan, the view of the education, health and care plan panel will be taken into account on the student’s need for travel assistance.”
- “Applications for travel assistance will take into account the following before providing travel assistance…
- Whether the student can be accompanied on their travel to school and whether the parent/guardian can reasonably be expected to accompany the student…
- The most efficient use of the local authority’s resources.
- Whether the school placement was made on parental/guardian preference and there is another suitable qualifying school (see appendix for details point 1.7) located closer or via a safer route to the home address.”
- “Travel assistance will be provided for the stated time and will be given no longer than one academic year…”
- “For students with an education, health and care plan, a review of travel arrangements will be undertaken in line with the Annual Reviews of the plan.”
- “Changes identified in a student’s needs or circumstances may lead to changes in the type of assistance provided or the discontinuing of assistance.”
- Mr and Mrs S have two children, one of whom, T, has a diagnosis of Autism Spectrum Disorder (ASD) and Sensory Processing Disorder. T was issued a Statement of Special Educational Needs in 2010. He previously attended a primary school within the borough (School 1) where he received specialist support.
- While T was in Year 5 at School 1, Mr and Mrs S discussed T’s needs with professionals involved with his care and education. As a result of those discussions, they did not consider that there was a primary or secondary school in the borough which could properly meet T’s needs. Instead, they considered that his needs could better be met at a specialist school for children of both primary and secondary school age outside the borough (School 2). They therefore asked the Council to agree for T to attend School 2, starting in Year 6 in September 2017, while still of primary age. In her request, Mrs S stated, “I am fully prepared to drive [T] to [School 2] and will not be asking for transport”.
- The Council carried out an EHCP needs assessment for T and agreed to name School 2 as “parental preference”. Section I of the EHCP stated,
“[T’s] needs are being met by [School 1] with specialist input, the LA are agreeing to name [School 2] as it is parental preference, therefore parent will be responsible for transport. If at any time the parent is no longer able to transport [T], he will be placed in a suitable provision in borough.”
- T started attending School 2 in September 2017. Mrs S was able to take T to school, with the support of her parents who lived with the family.
- Following the secondary transfer consultation, T was also offered a secondary place at School 2 in January 2018. At this stage, no amendment to the EHCP was needed, so there was no right of appeal.
- The Annual Review of T’s needs was then undertaken in February 2018. His EHCP was amended in August 2018 and sent to Mr and Mrs S. The wording in section I on the named school remained unchanged. The Council received no comments so it finalised the EHCP in September 2018. At this stage, following the amendment and issue of the EHCP, there was a right of appeal to SEND.
- A further Annual Review was undertaken in March 2019 but, due to an administrative error, T’s EHCP was not updated.
- In September 2019, Mrs S applied for transport for T to School 2 on the basis of a “change in circumstances with work and health”. She explained that her parents used to help her with transport and financial assistance but sadly both had died during the previous year. She explained that her husband worked full-time in London and could not take T to school.
- She said that, due to T's autism and other problems, the only way to get him to School 2 was by car. She said that T attended a private breakfast club in the grounds of School 2 but he was now too old to be eligible to continue using the club. As the school did not open until 8.45am, she would be unable to get T to school and then get to work on time. She also could not afford to further reduce her hours.
- She explained that when T had started at School 2, no other children from the borough were attending, but that was no longer the case. She felt that the Council could therefore provide transport for T at no further cost. She explained the difficulty that this was causing the family.
- The EHCP Panel declined Mrs S’s request for transport. It said the school placement was regarded as parental preference and the parents had been advised of this before the placement was made. However, as the Council was transporting another child who lives nearby, it was willing to allow T to share the taxi with a contribution of £1,000 a year towards the costs.
- Mrs S complained to the Council. She said it should not have refused transport on grounds of parental preference, as there was no school within the borough that could meet his needs, and that this had been the case since 2017. She said that the Council had not taken into account the specific concerns that she had raised and she could not afford the £1,000 charge.
- The Council responded to her complaint through the first stage of its complaint procedures. It said the placement was parental preference and there was a nearer suitable school at the time of placement at School 2. It said there was no time limit on the breakfast club and suggested that Mrs S could request flexible hours. It said that the full cost of transport was £19,000 per year and, having considered Mrs S’s personal circumstances, it had offered T transport for a contribution of £1,000 per year. It considered that it had followed the correct process and did not uphold her complaint.
- Mrs S complained again. She raised concerns about the way the Council had considered the original placement under the EHCP. She said the placement should never have been regarded as parental preference and that the EHCP still referred to his former primary school as being suitable to meet his needs. She explained why the breakfast club was unsuitable and that she could not vary her working hours further. She also felt that the proposed £1,000 charge did not reflect the actual cost to the Council. She asked the Council to consider this either as a Stage 2 complaint or to put her concerns to the Transport Appeals Panel.
- The Transport Appeals Panel considered her appeal in late November 2019. It concluded that T was not eligible under the usual policy because the placement was parental preference. However, it regarded the passing of both grandparents as exceptional circumstances, such that it would be appropriate to provide travel assistance for the remainder of the current school year. The Council declined to escalate Mrs S’s complaint as it considered the matter to have been resolved.
- Mrs S asked the Council for a timeline for when transport would start so that she could prepare T for the change. She followed up two weeks later as she had heard nothing and term would soon end. The Council confirmed the transport arrangements just before the end of term, to begin in January 2020. Since then, the Council has provided T a taxi to and from school.
- Mrs S then complained to the Ombudsman. In the meantime, T’s Annual Review was held in March 2020. T’s attendance at School 2 and the complaint to the Ombudsman were then put on hold during the COVID-19 lockdown.
- Following receipt of the Ombudsman complaint, the Council apologised for:
- failing to amend T’s 2019 EHCP;
- the delay in processing T’s 2020 Annual Review and reviewing his 2020 EHCP;
- any distress caused to T by the delay putting transport arrangements in place; and
- the delays and service failings experienced by Mrs S.
- It explained that:
- it had prioritised finalising the 2020 Annual Review, and updated Section I of the EHCP such that School 2 was no longer named as parental preference;
- due to the COVID-19 situation, all transport arrangements would automatically roll over for the 2020/21 school year; and
- it would prioritise T to see an Educational Psychologist during the 2020/21 academic year.
- It offered a payment of £250 for Mrs S’s time and trouble and to refund Mrs S’s travel expenses from September 2019 to January 2020.
- It also undertook the following procedural changes:
- it reminded officers to advise unsuccessful applicants of their right to appeal against the refusal of school transport;
- it established and filled a new post of Transport Assessment Officer to provide a single point of contact for parents; and
- it reviewed its working practices and put in place a new process to track when EHCP Annual Reviews are due.
- Mrs S has set out her concerns about the Council’s actions in some detail. However, it is not for the Ombudsman to answer all the questions that Mr S may have. Rather, the Ombudsman’s task is to consider what fault there has been and what action, if any, is appropriate to remedy any injustice.
Handling of transport application in 2019
- Mrs S says that, when the Council refused her September 2019 transport application, it:
- relied on an out-of-date EHCP which said that T’s needs could be met at his mainstream primary school with specialist input despite him being of secondary school age;
- gave no consideration to the headteacher’s statements in the last two Annual Reviews that T’s needs cannot be met at a mainstream school;
- did not identify “…another suitable qualifying school… located closer”, at which it considered T’s needs could be met;
- did not take into account that she had already substantially changed her working hours and patterns and could not realistically make further changes without risking losing her job;
- ignored the fact that she was only seeking transport for T in the mornings and provided no justification for the proposed annual cost of £1,000 for T to share an existing taxi service;
- delayed in granting her an appeal against the refusal of transport;
- delayed in setting up the agreed transport arrangements following her appeal, which meant that T did not have the chance to get used to the change during term-time; and
- seemingly pre-judged its decision on T’s 2020/21 application by suggesting that the onus was on her to make alternative arrangements before September 2020.
- I see no reason to question the Council’s decision to refuse transport on the basis of what was stated in the EHCP. Although Section I of the EHCP had not been updated and still referred to the previous primary school, it also said that T’s needs could be met through suitable provision in the borough, which would include secondary provision. I consider that the Council was entitled to refuse transport unless the wording of Section I of the EHCP was changed or the Council considered that there were exceptional reasons to disapply its policy.
- I note that, although the Council did not agree to provide free transport, it did exercise discretion to offer T a place in the existing taxi, and to provide a taxi even if the other child was not attending on a particular day. Mrs S has questioned the proposed charge of £1,000 which she does not consider reflects the additional cost to the Council – it has since suggested that the additional cost would be £3,000 per annum. But, as this was a discretionary offer, it was for the Council to determine what charge to make for that service.
- However, when Mrs S sought to challenge the refusal of transport, the Council should have put the request to the Transport Appeals Panel. Not doing so was fault. Had it done so, the Panel could have reached its decision to exercise discretion and put in place transport arrangements earlier. This would have spared Mrs S anxiety and inconvenience, and would have meant an easier transition to the new arrangements for T.
- In response, the Council has already offered to reimburse Mrs S’s costs from September and pay her £250 for her time and trouble. This seems to me a proportionate response in respect of the injustice to Mrs S. However, the delay putting the agreed arrangements in place also caused T disruption and stress. I consider that an additional payment of £100 would be an appropriate remedy for the injustice caused to T, and the Council has agreed to this.
- As to the Transport Appeal Panel’s suggestion that Mrs S should explore options for transport during the 2019/20 academic year, I see no fault here. At that stage transport was offered on a discretionary basis and, as with all transport applications, a new application would normally need to be made each year.
Failure to issue decision letters after Annual Reviews
- Mrs S has complained that the Council failed to issue a decision letter following T’s last two Annual Reviews, which meant that she could not appeal against the naming of his current school as parental preference.
- The Council was at fault in not issuing a decision letter after the 2019 Annual Review and in delaying its decision after the 2020 Annual Review.
- Had the Council issued a decision letter following the 2019 Annual Review, it is possible that it would have updated Section I of the EHCP to name School 2 or that Mrs S would have appealed. So, T might have been eligible for transport when Mrs S applied in September 2019. However, I cannot say with certainty what would have happened.
- In any event, the Council has apologised and changed the wording of Section I to name School 2. It has also agreed a financial remedy and reimbursed Mrs S.
- In addition to the steps already agreed and taken by the Council in paragraph 33 above, the Council has agreed, within one month of the decision date on this complaint, to:
- write and apologise to Mrs S and T for the failings in its handling of T’s school transport application and the delays in dealing with his Annual Reviews; and
- pay Mrs S a further £100 on T’s behalf as a remedy for the avoidable distress resulting from the delayed transport provision which meant that he had to adjust both to the new term and transport arrangements at the same time.
- I have closed my investigation into Mrs S’s complaint as I consider that the above agreed actions, together with those already agreed and/or carried out, represent a suitable remedy for the injustice caused to Mrs S and T.
Parts of the complaint that I did not investigate
- Mrs S says the professionals involved in T’s education and care recommended that he should attend School 2 because it was the nearest suitable school that could meet his needs. She considers that, based on the professional evidence, the Council should not have named the school as "parental preference" in his EHCP. Had that been the case, T would have been eligible for transport from the outset even though, given his age and needs at that time, Mrs S would have still transported him herself with the assistance of her parents.
- It is not for the Ombudsman to determine what school is named in Section I or whether that school should be regarded as parental preference. That is a matter which could be appealed to SEND and Mrs S could have appealed if she felt that the EHCP should have stated that School 2 was the nearest suitable school for T.
- Mrs S says there was no adequate or recent involvement by an Educational Psychologist in the preparation of the EHCP in 2017. She was unaware at the time of the implications of this. She feels that this was a breach of the regulations and guidance and, had an Educational Psychologist been involved, it would have been clear that School 2 was the nearest suitable school.
- In preparing an EHCP, the regulations require that the local authority to seek a range of advice including “psychological advice and information from an educational psychologist”. However, the statutory guidance also says that “the local authority must not seek further advice if such advice has already been provided (for any purpose)”, and the parties involved agree that the advice is sufficient to inform the assessment.
- The Council says its usual practice is to involve and Educational Psychologist in the preparation of the EHCP but, based on earlier contributions from Educational Psychologists, it felt that there was sufficient information to prepare the EHCP.
- It seems to me there is a degree of latitude as to when to seek advice and what advice to seek. I note that all parties agreed the EHCP in 2017 and Mrs S could have complained at the time had she felt that the Educational Psychologist input was insufficient. Given this, and since the Council has agreed to the involvement of an Educational Psychologist in the 2020/21 academic year, I see no grounds for the Ombudsman to pursue this aspect of her complaint further.
Investigator's decision on behalf of the Ombudsman