Summary: Miss B complains the Council has refused to provide home to school travel assistance for her child, who has special educational needs. We uphold the complaint, finding the Council cannot show it properly considered information provided to it by Miss B in January 2020. This has caused uncertainty and put Miss B to unnecessary time and trouble. At the end of this statement we recommend action the Council should take to remedy this injustice, including considering Miss B’s application afresh.

The complaint

1. I have called the complainant ‘Miss B’. She complains the Council has refused her child (who I will call ‘C’) assistance with home to school transport. Miss B says the Council cited an irrelevant factor in its decision to refuse assistance. Miss B says it also ignored evidence she provided in support of C’s needs.
2. Miss B says as a result she has incurred expenses paying for taxis to transport C to and from school. Miss B considers it should be the Council’s responsibility to pay for this or arrange equivalent transport.

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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. 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)
5. 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)
6. 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.

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How I considered this complaint

7. Before issuing this decision statement I considered:

• Miss B’s written complaint and any supporting information she provided. I also spoke to her by telephone.
• Information provided by the Council in reply to my enquiries.
• A previous investigation undertaken by the Ombudsman which considered a complaint the Council had unreasonably refused assistance for home to school transport for C (decided in December 2019).
• Relevant law, government guidance and local policy.
• Comments made by Miss B and the Council in response to a draft decision statement where I set out my proposed findings.

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What I found

Relevant Law and Statutory Guidance

8. In certain circumstances the Council must provide free home to school transport for pupils of compulsory school age (5-16) (s508B and Schedule 35B of the Education Act 1996 as amended). The law says the Council must make suitable travel arrangements as it considers necessary for ‘eligible children’ to attend their ‘qualifying school’. The Council must provide this transport free of charge.
9. Schedule 35B of the Act defines ‘eligible children’ as including:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs (SEN), disability or mobility problem.
10. 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”.
11. Statutory guidance published by the Government (Home to school travel and transport guidance – July 2014) says the Council should assess eligibility for transport because of SEN, disability or a mobility problem on an individual basis. The Council should not consider the usual transport requirements (for example, the statutory walking distances) when assessing the transport needs of children with SEN and/or disability.

Council policy

12. Section 4.2.1. of the Council’s SEN Transport Policy says the Council will provide transport assistance where the pupil has an Education Health and Care plan (EHCP) and the child:

• has been assessed as requiring transport assistance to access their specialist provision and/or;
• the Council has determined and named the provision in the EHCP as being the nearest available appropriate provision that is able to meet the child’s needs and/or;
• the child’s health needs are such that upon written medical advice, (date within the last twelve months) travel assistance is necessary to access their specialist provision.

13. Section 4.4.1 of the policy says the Council will not provide assistance “where parents choose a school which is not the nearest suitable provision which the Council considers appropriate to meet the needs of the child”.
14. If the Council refuses home to school travel assistance then it offers a two stage appeal process.

Previous Ombudsman Investigation

15. In December 2019 we issued a decision which considered the Council’s decision to refuse assistance with home to school transport for C from September 2018 (when C began attending secondary school). Miss B’s request for assistance had gone to a Stage 2 appeal in February 2019. We found the appeal panel took its decision with fault as it took several irrelevant considerations into account in its decision. This included a failure to consider the school attended by C, and named on an EHCP, as the relevant ‘qualifying school’ for home to school transport purposes.
16. The Council had wrongly cited the presence of another school, closer to Miss B’s home, as a factor in its decision. It implied it could not consider funding travel assistance for C because of Miss B expressing a parental preference for the school named on C’s EHCP.
17. However, despite this and other faults, we considered the Council had considered the ‘material issue’ at the crux of C’s appeal reasonably. This referred to how the Council had considered whether C’s difficulty walking meant they could not reasonably be expected to walk to school. We considered the Council had approached this question properly. It had noted that Miss B had provided evidence from a podiatrist which suggested C’s difficulty walking may be short term and helped by special insoles. We considered it reasonable for the Council to refer to this in its decision.
18. We also noted that in August 2019 the Council had offered to consider again C’s potential eligibility for assistance with home to school transport. Earlier that month Miss B had met with the Director of Children’s Services and told them that C’s insoles had not helped in improving their mobility. The Council said that if Miss B provided supporting evidence from C’s podiatrist that it would reconsider their case without the need for Miss B to go through the full application and appeal process again.
19. I note at the August 2019 meeting, Miss B had also referred to C having limited eyesight. In its letter to her of the same month the Council also offered to consider any evidence she provided for that.
20. We told Miss B that if she provided further evidence to the Council, and remained dissatisfied after it responded to that, we would consider a fresh complaint from her. We would do this without automatically expecting Miss B to go through the appeal process referred to at paragraph 14.

Events since August 2019

21. In January 2020 Miss B submitted a fresh application for home to school transport assistance for C. Miss B cited three reasons in the application why she considered C needed this help. She referred to C having:

• global development delays and poor cognition skills;
• mobility difficulties; on the form Miss B said C “falls often and cannot walk” and that they had “poor balance”.
• poor vision.

22. Miss B provided supporting evidence in support of her application:

• an email from the School SENCO (Special Educational Needs Co-ordinator). This said C is an “extremely vulnerable student with very weak cognition and learning skills; emotionally too [C] presents as much younger child. [C] would not currently be able to negotiate public transport on [their] own";
• a letter from her GP. This discussed C’s mobility difficulties. It said: “orthopedics in conjunction with podiatrists have been trying to help [C] chronic lower limb pain by way of custom made orthoses [insoles] but have not been very successful”. The letter said C’s ”walking and ability to exercise” was “severely reduced”;
• a letter from a consultant ophthalmic surgeon. This described various eye conditions C has. It said that with glasses, C would meet the standard for driving and so is not considered partially sighted. However, with their development delay and “highly myopic presentation” the surgeon said C “may well need assistance when travelling to and from school”.

23. The Council sent a decision to Miss B later in January 2020. This noted it had previously refused assistance for Miss B with home to school transport, including at appeal. It noted the previous Ombudsman decision had faulted the process followed by the Council but not the decision. It said the Council had considered the letters provided by the GP and ophthalmic surgeon. But that it considered C remained ineligible for transport assistance.
24. In giving its reasons, the Council went on to say that C “is educated at [..] School which is a mainstream secondary school 2.4 miles from the home address. The nearest mainstream school is [another] School which is 0.4 miles from the home address. You have made a preference for [the first] School and therefore in accordance with section 4.4.1 of the SEN Transport policy, [C] would not be eligible”.
25. The letter offered Miss B a right of appeal. But she chose to complain directly to this office in line with the advice we previously gave and which I referred to at paragraph 20.
26. In August 2020 Miss B made a further application for home to school transport assistance for C, to coincide with the start of the next academic year. I am not aware the Council has determined this application.
27. In reply to my enquiries the Council says that it recognises its response to the January 2020 application was confusing. However, it defends the continuing refusal of assistance for C’s home to school transport noting:

• Miss B has not provided any further evidence from the podiatrist as it suggested in August 2019;
• that evidence contained within an Annual Review of C’s EHCP suggests that C has not attended podiatrist appointments since 2018;
• that it has no evidence C’s mobility difficulties hamper their access to a full curriculum at school where they move around the school buildings;

My findings

28. I find fault in the letter sent to Miss B in January 2020. The Council cited an irrelevant consideration in giving its reasons for not providing C with assistance to travel from home to school. ‘Parental preference’ is not relevant where a child has an EHCP that names a school. As the law, the Council’s own policy and our previous decision all make clear the school C attends is the ‘qualifying school’ for any consideration of whether C should receive such assistance. This is because it is the school named on C’s EHCP.
29. The Council recognises its error here. But stands by its decision for the reasons summarised in paragraph 27. It considers a decision in those terms would be administratively sound. So, it considers no injustice arises from its fault.
30. I cannot agree. I recognise that all the factors listed in paragraph 27 are potentially relevant to a decision on home to school transport for C. However, these reasons do not engage directly with the evidence Miss B provided in January 2020. It is not enough the Council recognises receiving letters from C’s GP and consultant ophthalmic surgeon. It must consider what those letters contain and decide what weight to give to the information they contain about C’s ongoing walking difficulties and eye conditions.
31. In addition, the Council should also be able to show what account it has taken of the views of the school SENCO. I consider that correspondence is also relevant to a decision on home to school transport for C. I also note here a statement that appears in C’s EHCP which says they have “a limited awareness of the risk associated engaging with strangers” and are “particularly vulnerable when accessing the community”. Miss B specifically referred to C’s global development delay and cognitive skills in her application. The Council must consider this matter too.
32. Because there is no evidence the Council has considered these matters properly, I cannot say it would have made the same decision in January 2020 further to such consideration. Although, that is not to say I find Miss B’s case would necessarily have succeeded either. Without the Council taking a decision that properly weighs the evidence in front of it, all I can find is there is uncertainty about what outcome should have resulted. We regard this an injustice as it is a form of distress. I also find the poor decision has put Miss B to unnecessary time and trouble in making a further complaint.
33. The Council has said that it accepts these findings. It has agreed to make a fresh decision on Miss B’s January 2020 application (which can be merged with her August 2020 application). This will carry a fresh right of appeal. I note we previously supported an approach which suggested Miss B did not need to follow the usual appeal route. This was because at that time, the Council’s offer to reconsider hinged on Miss B providing evidence directly leading on from her conversation with its Director. But I no longer think this appropriate. First, because Miss B chose to take a different route in submitting a fresh application. Second, because the evidence Miss B has provided goes beyond that foreseen in August 2019. I note here that no previous consideration of C’s potential need for travel assistance has considered their eye conditions or global development delay as potential reasons for such help.
34. It is right the Council now properly considers these matters. If it does not change its decision an appeal will allow both for the submission of fresh evidence and scrutiny of the position of both Miss B and that of the relevant Council service. Although I also consider that given the time now elapsed since Miss B first contacted the Council for help, any appeal should progress directly to Stage 2.

Agreed action

35. To remedy the injustice identified at paragraph 32 the Council has agreed that within 20 working days of this decision it will:
1. provide a written apology to Miss B accepting the findings of this investigation;
2. pay Miss B £200 in recognition of the distress and time and trouble resulting;
3. issue a fresh decision on Miss B’s applications made in January 2020 and August 2020 (they can be treated as one application) or begin any further enquiries it considers necessary to arrive at a fresh decision; in the event of a further refusal the decision will carry rights of appeal and give a commitment any appeal can progress immediately to Stage 2 of the Council’s procedure should it be made;
4. if either a decision or appeal go in Miss B’s favour the Council should invite from Miss B evidence of her costs on transporting C to school from 20 January 2020 onward and consider reimbursement of the same.
36. In the event Miss B is unhappy with the outcome of any appeal at 35c) or decision at 35d) then she will be signposted back to this office for consideration of a further complaint.

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Final decision

37. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Miss B. The Council has agreed action that will remedy Miss B’s injustice and provide a fair outcome to her complaint. Consequently, I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman