Summary: The complainant, Mrs Y, says the Council’s Home to School Transport policy is unclear and poorly worded. As a result, she was unaware that her two children, who both have Special Educational Needs (SEN), were eligible for transport assistance. The Ombudsman finds no fault with the policies in question. When read in full, the policies provide enough information to allow parents to enquire about, or apply for, transport assistance.

The complaint

1. The complainant, whom I will call Mrs Y, complains the Council’s Home to School Transport policy is unclear and poorly worded. As a result, she was unaware that her two children, who both have Special Educational Needs (SEN), were eligible for transport assistance.
2. Mrs Y applied in September 2019 and the Council confirmed eligibility and provided transport assistance from the point of application. However, Mrs Y seeks backdated payments to cover the period from when her sons’ Education, Health and Care Plans (EHCPs) were first issued.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. During my investigation I discussed the complaint with Mrs Y, made enquiries of the Council and considered its response. I also consulted the relevant policies, law and guidance around SEN transport eligibility.
6. Before making a final decision, I issued a draft decision and invited comments from Mrs Y and the Council, which I considered in full.

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What I found

School transport eligibility

7. The law says 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.
8. 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’.
9. ‘Qualifying schools’ include:
• Community, foundation or voluntary schools
• Community or foundation special schools
• Non-maintained special schools
• City technology colleges, academies and free schools
• an independent school for a child with SEN where the school is named in the EHC Plan/statement or is the nearest of two or more schools named.
10. ‘Eligible children’ are defined in Schedule 35B of the Education Act as:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if:
• cases where the nearest suitable school is beyond two miles (for children over eight and under 11);
• cases where the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
• cases where the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.

Eligibility for those with Special Educational Needs (SEN)

11. If a school is named in an Education Health and Care Plan (EHCP) it does not automatically mean transport will be provided. However, the Department for Education (DfE) ‘Home to School Travel and Transport’ statutory guidance advises that eligibility for such children should be assessed on an individual basis to identify their specific transport requirements. Usual transport requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to SEN and/or disability.

The Council’s policies

12. The introductory paragraph of the Council’s ‘Home to School Travel and Transport Policy’ (October 2016), which the Council says was in force at the time of Mrs Y’s sons starting school, includes the following advice:

“A separate document sets out additional provision made for children and young people with Special Educational Needs and Disabilities (SEND) who need to attend a special unit or school”.

13. The ‘Home to School Transport’ policy goes on to outline the eligibility criteria:

“Free transport will be provided for pupils living more than 2 miles (below the age of 8) or 3 miles (for 8-16 years) from, and attending, their qualifying school”

“For distances below those described above, transport will not be provided, as the route is considered to be within the statutory walking distance. These distances are measured by the shortest available walking route (from home address to nearest school gate) using our Geographical Information System, taking account of public footpaths, along which a child, accompanied as necessary, can walk reasonably safely”

14. The policy explains: “In certain other instances, there may be circumstances that mean pupils may be provided with transport. These are described below.” One of the examples given, is:

“Some children may be unable to walk to school, even if is only a short distance. In some cases, travel assistance may be considered if all other possible solutions (such as making arrangements with another parent) have already been explored. To qualify for help, the child must be attending their qualifying school. Medical evidence from a consultant or GP will need to be presented to confirm the child’s medical condition means that they cannot walk the necessary distance to school”.

15. The flow chart at the end of the policy advises applicants to contact the Council’s Inclusion Team if the child they wish to apply for has a statement of special educational needs (now known as an EHCP).
16. The Council’s supplementary policy entitled: ‘Travel assistance for children with Special Educational Needs or Disabilities’ says:

“Where the distance to the appropriate school is less than the distances specified above and / or when a child has no statement of SEN or EHCP, travel assistance will be considered, taking into account the individual circumstances and the travel needs of children with significant sensory, physical, medical or behavioural difficulties that prevent them from getting to school even when accompanied by a parent or carer. In such instances, travel assistance will be considered using supporting written evidence, within the preceding 12 months, from a range of sources that describes the child as having:

• Long term severely restricted independent mobility, due to a physical disability.
• Long term severely restricted mobility due to a medical condition resulting in persistent pain or extreme fatigue.
• A sensory impairment resulting in severely restricted mobility.
• Severe behavioural emotional and / or social difficulties in comparison with other children of their age. This may be linked with cognitive ability or be as a result of a specific development disorder”.

What happened

17. Mrs Y has two sons with SEN. I will refer to her sons as B and C. B is Mrs Y’s eldest son and received his EHCP in September 2016. C received his EHCP in April 2018. Both B and C receive education in a specialist setting, as per the provision named in their EHCPs.
18. The school is less than two miles from Mrs Y’s home address. She did not apply for help with transport costs when B and C received their EHCPs. This is because Mrs Y says the Council’s main transport policy suggested that B and C would not be eligible for any support due to their close proximity to their school. She says this is misleading.
19. Mrs Y says she has tried to walk to school with B and C on several occasions, but it is not safe. Despite trying different routes to school, Mrs Y says B and C experience great distress which is further exacerbated by the busy roads which they have to walk along. Mrs Y says B and C will sometimes try to run into the road, or throw themselves to the ground when crossing the road. As a result, she says it is unsafe for them to walk to their named school.
20. On 12 September 2019 Mrs Y applied to the Council for home to school transport assistance. After assessing her applications, the Council decided that both B and C were eligible for funded transport because it was not possible for them to safely walk to school. The Council agreed to pay Mrs Y’s reasonable travel expenses.
21. Mrs Y asked for the Council to backdate payments to the point when both boys started school (September 2016 for B, and April 2018 for C). The Council refused and said that Mrs Y was only eligible from the date she applied for assistance. Mrs Y said the Council should have told her in 2016 of her potential eligibility and the wording in its policy was misleading and deterred her from applying.
22. Mrs Y complained to the Council in November 2019. The Council did not uphold her complaint. It said:
• The Council’s SEND panel considered Mrs Y’s application and obtained legal advice in October 2019. The Council decided B and C were eligible, due to their difficulty walking to school, and transport payments were backdated to 12 September 2019.
• The Education Act (1996) states that travel arrangements can be made by the Council, but only with the consent of the parent. The Council was not aware of Mrs Y’s difficulties in getting B and C safely to school until she notified them in September 2019. This is when she provided consent.
• The Council’s policy allows for parents to apply for transport under ‘special circumstances’ even when the journey is less than two miles. However, the Council is considering whether to review the policy wording because of Mrs Y’s complaint.
• Any review would not remove the requirement for applicants to notify the Council of their need for travel support via an application for transport assistance. An application is always needed to properly assess eligibility.
• Following its review, the Council decided the policy is clear on pages four and five that parents are invited to make further enquiries about entitlement if their children have significant needs affecting their ability to walk to school. The policy therefore remains unchanged.
• The Council accepts there is some learning and will review the policy again once the statutory government guidance is updated. The Council will also publish a list of ‘Frequently Asked Questions’ to further assist parents.
23. Dissatisfied with the Council’s response to her complaint, Mrs Y approached the Ombudsman.

Was there fault in the Council’s actions causing injustice to Mrs Y?

24. Mrs Y says the Council’s policy is misleading. As a result, Mrs Y says she was deterred from applying for B and C’s transport when they started school. Mrs Y says the wording of the policy is fault causing her injustice in the form of avoidable transport costs which she has paid since 2016. Mrs Y seeks repayment of those costs.
25. When read in isolation, the section of policy quoted in paragraph 13 of this statement suggests that B and C would not be eligible to receive help with the cost of their transport to and from school. However, the policy makes clear that in “certain instances” those with mobility needs, special educational needs or with an EHCP may be eligible for transport assistance outside of the usual eligibility criteria. As the statutory guidance makes clear, eligibility under these grounds is subject to an assessment by the Council to establish the child’s individual needs.
26. The home to school transport policy also highlights in the introductory paragraph that there is a separate SEN transport policy which should be read in conjunction with the policy. The wording in the SEN transport policy is clear that children who struggle to walk to school may be eligible and should apply for their individual circumstances to be assessed.
27. In my view, there was adequate information within both policies to prompt Mrs Y to apply for B and C before they started school. I therefore find no fault with the wording of the policies.
28. I understand both policies are overdue for review. The Council says the consultation for the review has been affected by the COVID-19 pandemic. The Council should ensure the policies are reviewed without delay now that most schools have re-opened.
29. As part of my enquiries, I also asked the Council to explain what information its officers gave to Mrs Y when she went through the EHCP process for B and C. The Council says the officer dealing with B and C’s case did not specifically advise Mrs Y to make enquiries about transport. The Council does however say officers routinely direct parents and carers to its ‘Local Offer’ which contains information about home to school transport. Mrs Y disputes this.
30. Following the complaint made by Mrs Y, the Council says its officers now routinely advise parents to make enquiries about transport if they live less than three miles from their child’s school, but may have difficulty walking due to the child’s needs.
31. I cannot say it was maladministration for the officer not to have advised Mrs Y to make transport enquiries for B and C. The responsibility for making an application lies with the parent or carer. In this case, I consider the published information was clear enough for Mrs Y to have made an informed decision to apply for B and C.

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Final decision

32. I have completed my investigation with a finding of no fault for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman