Summary: Miss B says the Council failed to properly consider her application for transport assistance for her daughter. The Council failed to follow its own policy and Government guidance when considering Miss B’s appeal. That means Miss B cannot be satisfied the Council properly considered her appeal. A further appeal and review of the Council’s travel assistance policy is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Miss B, complained the Council failed to properly consider her application for transport assistance for her daughter. Miss B says this has caused her and her daughter stress and has affected her daughter’s academic performance and mental health.

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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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
5. Miss B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

6. Miss B’s daughter has ADHD and diabetes. Miss B applied for travel assistance for her daughter in June 2019. Miss B said her daughter could not manage public transport due to her ADHD and could not walk unaccompanied to school. The Council declined Miss B’s application as it did not consider her daughter met the eligibility criteria. Miss B appealed that decision. A senior officer in the Council’s special educational needs (SEN) department considered the appeal and refused it. The Council’s letter refusing the appeal told Miss B it had refused the appeal as her daughter did not meet the eligibility criteria in the Council’s published policy.

The Council’s home to school travel assistance policy

7. The policy says the local authority has a duty and powers to make particular travel arrangements for children with special educational needs and disabilities to facilitate their attendance at an appropriate education provision. This is in line with the Education act 1996 as amended in section 77 of the Education and Inspections Act 2006.
8. The policy refers to the law on minimum walking distances for pupils to be eligible for travel assistance from the local authority. It says the statutory walking distance for pupils to be eligible for assistance is beyond three miles for those aged between 8 and 16. The policy says the decision on whether to provide travel assistance is made by the travel care and support officer based on the evidence provided and application of the Council’s policy.
9. The policy says where the parent/carer wishes to challenge the decision they can submit a request for a review..
10. The appeals process section of the policy says appeals must be made in writing, explaining why parents feel the policy has not been applied correctly. It says parents can supply new evidence in support of the appeal.
11. The policy in place at the time says appeals are considered by the SEN panel which will be chaired by a senior SEN manager and also contains representatives from education, health, social care and schools. It says the panel will consider all the evidence. It says parents/carers will be notified of the appeal decision within 21 working days.

Government guidance

12. The Government has set out a recommended two stage review and appeals 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 which will consider written and verbal representations.
13. Although these are only recommendations, they are based on statutory guidance. The intention was to ensure a consistent approach across all areas and to provide a completely impartial second stage. Therefore, the Council would need good reason to divert from them.
14. At both stages, the Council should send the parent a detailed written explanation of the outcome, which should include:
• the nature of the decision reached;
• how the review was conducted;
• information about other departments and/or agencies that were consulted as part of the process;
• what factors were considered;
• the rationale for the decision reached; and
• information about the parent’s right to escalate their case to either stage two or to put the matter to the Local Government Ombudsman.

Analysis

15. The Council says Miss B’s daughter does not meet the criteria for home to school travel assistance. The Council says that is because Miss B’s daughter does not live more than three miles from her school, does not have an education, health and care plan and the Council has no medical information to suggest Miss B’s daughter cannot travel to school, accompanied as necessary, due to her ADHD and diabetes. In contrast Miss B says her daughter’s ADHD means she is not safe to travel on public transport and cannot walk unaccompanied to school.
16. It is not the Ombudsman’s role to decide whether Miss B’s daughter qualifies for travel assistance. Instead, the Ombudsman’s role is to decide whether the Council has considered Miss B’s case properly and applied its policy and Government guidance. I have concerns on both fronts in this case. As I said in paragraph 11, the Council’s policy says it will refer appeals to the SEN panel. In this case though the SEN panel did not consider the case. Instead, the Council’s response to the appeal says a senior officer within the Council’s special educational needs department considered the appeal and decided Miss B’s daughter did not meet the eligibility criteria. That is not in accordance with the Council’s policy and is fault.
17. I am also concerned there is no evidence the officer that considered the appeal considered the evidence Miss B provided. I say that because I note the letter refusing the appeal gave no explanation for why the appeal had not succeeded, other than referring to Miss B’s daughter not meeting the eligibility criteria. The decision did not explain why the officer considering the appeal did not consider the evidence Miss B had provided enough to warrant travel assistance. Failure to properly explain the decision is fault. To be clear though, if the letter had explained the decision properly the Council would remain at fault because it did not follow its appeals procedure.
18. I am also concerned the wording of the Council’s policy suggests those appealing do not have an opportunity to attend the SEN panel to present their case. That is not in accordance with the Government guidance I refer to in paragraph 12. The Ombudsman would expect the Council to follow Government guidance unless it had good reason not to do so. I have seen no evidence to suggest the Council has properly considered the statutory guidance issued by Government when framing its appeals policy or in considering this appeal. Failure to follow Government guidance is fault. As the Council has not followed its own policy or Government guidance and there is no evidence it considered the reasons and evidence Miss B put forward in support of her appeal she cannot be satisfied the Council has considered her daughter’s case properly.
19. In those circumstances I recommended the Council hold a further appeal for Miss B, with Miss B given the opportunity to present her case in person, should she wish to do so. I also recommended the Council review the appeals section of its home to school travel assistance policy to ensure its policy reflects Government guidance. The Council has agreed to my recommendations.

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Agreed action

20. Within one month of my decision the Council should arrange for the SEN panel to hear Miss B’s transport appeal. The Council should put in place measures to allow Miss B to present her appeal in person, should she wish to do that.
21. Within two months of my decision the Council should review its travel assistance policy on appeals to ensure it complies with Government guidance and should remind officers in the Education Department the SEN panel should consider school transport appeals.

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Final decision

22. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman