London Borough of Sutton (19 019 635)

Category : Education > School transport

Decision : Upheld

Decision date : 09 Feb 2021

The Ombudsman's final decision:

Summary: Ms X complained that the Council agreed to help with home to school transport costs for her daughter but delayed in doing so and failed to respond to her emails. She said it also failed to fully respond to her complaint and put in place reasonable adjustments in view of her autism. Ms X suffered distress and inconvenience because of the Council’s failings. Her daughter also suffered distress and was unable to attend her autistic school. The Council has agreed to apologise to Ms X and make a payment in recognition of the injustice caused.

The complaint

  1. Ms X complains that the Council:
    • agreed to provide assistance with costs for home to school transport for her daughter, Y, in October 2019 but delayed in providing this;
    • failed to respond to her emails;
    • failed to fully respond to her complaint; and
    • failed to put in place reasonable adjustments in view of her autism.
  1. Ms X says she suffered distress and inconvenience because of these failings. She says she had to give up her job so she could take Y to and from school resulting in lost income, paid a term's fees for her autistic school which she could not attend and incurred legal costs. Ms X says Y suffered distress, missed classes at the autistic school because she could not get there and ultimately lost her place at the school.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have considered all the information provided by Ms X, made enquiries of the Council and considered its comments and the documents it provided.
  2. Ms X 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

Legal and administrative background

Duty to provide free home to school transport

  1. The Education Act 1996 says councils must provide free home to school transport for eligible children of statutory school age to qualifying schools.
  2. Eligible children are children of compulsory school age who:
    • cannot walk to school because of their special educational needs, disability or a mobility problem; or
    • live beyond the statutory walking distance; or
    • receive free school meals, or whose parents receive the maximum working tax credit.
    • The nearest qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.
  3. The law and guidance say that, provided parental consent has been obtained by the council, as an alternative arrangement to meet its duty to make travel arrangements, it may pay the parent a mileage allowance to drive their child to school. This would be in place of the council arranging a taxi to transport the child.

Education Health Care Plan

  1. An Education Health Care Plan (EHCP) sets out any special educational needs a child has and the provision a local authority must put in place to help them.
  2. A parent can request a plan by contacting their local authority and requesting an assessment. If the local authority decides not to carry out an assessment, the parent can challenge this decision by appealing to the Special Educational Needs and Disability (SEND) Tribunal.

Reasonable adjustments

  1. The Equality Act 2010 says an individual or organisation that provides a service to the public, such as a council, must not treat someone worse just because of one or more “protected characteristics”. Protected characteristics include disabilities.
  2. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable it must make them.

Key facts

  1. On 1 October 2019 Ms X applied for transport assistance in the form of mileage allowance for taking her daughter, Y, to school. Y has autism spectrum disorder and Asperger’s but did not have an education health care plan (EHCP) at the time.
  2. The Council sent an email to Ms X on 4 October 2019 agreeing to support Y with home to school travel. A few days later Ms X returned parental mileage claim forms and the travel assistance team confirmed the forms had been forwarded for approval.
  3. The following day Ms X asked that a taxi service be deducted from her personal mileage budget on Monday afternoons to take Y from school to a specialist autism school to complete her Duke of Edinburgh award. This would allow Ms X to finish work on time instead of leaving early to collect Y.
  4. Ms X says an officer telephoned her confirming her mileage claim would be paid during October half term and that the Council would provide a taxi every Monday afternoon. The Council says it had no duty to agree to this request but did consider whether there were existing routes on Council arranged transport which could accommodate Y. However, there were no immediate options available.
  5. Ms X says she told the Council Y would lose her place at the autism school if the taxi was not organised soon.
  6. On 21 October 2019 Ms X cancelled Y’s place at the autism school and informed the travel assistance team.
  7. On 2 November 2019 Ms X requested transport for Y from school to home on Monday afternoons starting on 11 November 2019. She later changed this to 18 November 2019.
  8. The travel assistance team arranged for an afternoon taxi from school to home from 18 November 2019. But on 11 November 2019 the special educational needs (SEN) service informed the team that there was an issue about whether Y actually lived in the Council’s area and about the fact that she did not have an EHCP, both of which could affect her eligibility for home to school transport. The Council put transport arrangements on hold while these issues were resolved.
  9. The following day an officer telephoned Ms X explaining the situation. Ms X sent proof of her address to the SEN team and the travel assistance team and asked whether the taxi could be reinstated for 18 November. She also chased up the mileage payments outstanding since October.
  10. On 17 November 2019 the Special Educational Needs Transport Advisory Service (SENTAS) wrote to the Council on Ms X’s behalf. It said the Council had asked Ms X for proof of address but she had already provided this twice. It had also asked her to complete a form for payment of the mileage allowance but this had been completed and sent to the Council by email on 9 October 2019.
  11. The following day the travel assistance team confirmed to the SEN service that Y was eligible for travel assistance. However, no arrangements were put in place.
  12. On 11 December 2019 Ms X contacted the travel assistance team stating that, because of the delay in arranging the taxi and paying her mileage allowance, she was removing her agreement to provide home to school transport for Y via a mileage allowance. So, the Council was required to put in place daily transport for Y by an approved contractor.
  13. On 15 December 2019 Ms B complained that she had still not received the mileage allowance and about the Council’s failure to arrange a taxi for Y for Mondays.
  14. On 18 December 2019 the SEND Tribunal agreed Ms X’s request for an education health care needs assessment (EHCNA).
  15. The Transport Manager responded to Ms X’s complaint at stage 1 of the Council’s complaints procedure on 20 December 2019.
  16. On 23 December 2019 the travel assistance team informed Ms B that new transport arrangements by taxi would begin at the start of the January 2020 term.
  17. The same day Ms X submitted a stage 2 complaint. The Council responded on 16 January 2020.
  18. Ms X escalated her complaint at stage 3 on 19 January 2020. The Council responded on 5 February 2020. Ms X remained dissatisfied and complained to the Ombudsman.

Analysis

Delay in paying mileage allowance

  1. The Council agreed to pay Ms X a mileage allowance in October 2019. Ms X transported Y to and from school between October and December 2019. Payments for the backdated travel assistance were not made until January 2020. This delay was fault.
  2. The Council says the delay was partly caused by queries about Y’s eligibility for home to school transport because she did not have an EHCP at the time of the request and it was uncertain whether she lived in its area.
  3. Ms X says the Council was aware before she applied for transport that Y did not have an EHCP and, in any event, an EHCP is not a requirement for transport to school. She also says she had provided proof of her address on 15 August 2019.
  4. Concerns about Y’s eligibility for transport were not raised until 11 November 2019 and were resolved by 18 November 2019. So, I do not consider this was a major contributory factor in the delay in paying Ms X’s mileage claim. In any event, the Council should have properly checked Y’s application for eligibility at the outset.
  5. The Council accepts the delay in payment caused Ms X distress. It has apologised for this and offered to pay her £50. It also accepts the delay may have restricted her ability to make alternative taxi arrangements for Y to continue attending the autism school and has agreed to refund the cost of the term’s placement in recognition of faults in the service Ms X received. It has also agreed to review its systems to ensure it actions requests more promptly in future.

Delay in providing transport

  1. Ms X requested transport by taxi on Monday afternoons on 8 October 2019. The Council was not required to agree to this request but did try to accommodate it. However, no immediate options were available and it failed to communicate this to Ms X.
  2. Having heard nothing further, Ms X told the Council she had cancelled the Monday after-school arrangement and requested a taxi to take Y from school to home instead from 18 November. The Council made the arrangements but the SEN team then queried Y’s eligibility for transport so the arrangements were put on hold. Once the query was resolved the Council failed to reinstate the arrangements. This was fault and caused Ms X a significant injustice as she had to leave work early on Mondays to collect Y from school. In any event, the Council should have checked Y’s eligibility for transport at the outset which would have avoided the arrangements being put on hold.
  3. As a result of the delay in arranging a taxi for Monday afternoons, Ms X withdrew her agreement to a mileage allowance on 11 December 2019. The Council was then under a duty to provide transport for Y on a daily basis. It arranged a taxi for the beginning of term in January 2020. This was in accordance with the timescales set out in the Council’s policy as Y’s school term ended on 17 December 2019 so there are no grounds to criticise this.
  4. Ms B says that, because of the lack of transport, she had to give up her job so she could take Y to and from school. I have seen no evidence to support this assertion.

Failure to respond to emails

  1. Ms X says the Council failed to communicate with her so she was unaware what was happening. She says she could not understand the lack of communication and the confusion and distress caused her to suffer autistic meltdowns. Ms X says she finds it difficult to process information during a telephone call and it takes a huge mental effort for her to make a call, but she felt she had no choice but to telephone the Council because it was not responding to her emails. She says officers refused to speak to her which was upsetting and confusing.
  2. The Council accepts it could have communicated better with Ms X to keep her informed of the process, the reasons for its decisions and the reasons for the delay. It has apologised for the distress and inconvenience caused.
  3. The Council says officers did speak to Ms X by telephone but records of these conversations were not routinely kept. This was fault. The Council accepts it needs to maintain better records of telephone communications and says it has made improvements to achieve this.
  4. The Council has offered to pay Ms B £200 in recognition of the time and trouble she was put to in chasing responses and ultimately making a complaint. It has also refunded the fee Ms X incurred in arranging for SENTAS to represent her in making her complaint.
  5. I am satisfied the Council’s actions represent a satisfactory remedy for the injustice caused by failing to communicate with Ms X.

Failure to fully respond Ms X’s complaint

  1. Ms X says the Council used various strategies to obstruct her right to access the complaints process including inventing extra sections and new criteria which were not specified in its complaints policy.
  2. Ms X complained about the school transport team’s lack of action and communication on 15 December 2019. The team manager responded on 20 December 2019 apologising for the delay in contacting her and confirming that transport had been authorised to start in January. He also confirmed that mileage allowance would be paid for the autumn term as originally agreed. At the end of the letter he stated, “If you are unhappy with the response to this complaint, you may escalate it to stage 1 of our complaints process”. This was confusing because Ms X’s complaint of 15 December was a stage 1 complaint.
  3. Ms X responded requesting that her complaint be escalated to stage 2 of the complaints process. The service director responded on 21 December 2019 explaining the complaint could only be escalated on the grounds that elements of it had not been addressed or that Ms X was dissatisfied with the response. He also went on to address some of the points Ms X raised.
  4. On 23 December 2019 Ms X sent an email stating she was not happy with the stage 1 response or the stage 2 response. She asked to escalate the complaint to stage 3.
  5. The service director responded explaining that the manager’s email of 20 December 2019 was the stage 1 response but his own email of 21 December was not a stage 2 response. It was simply an acknowledgement of her email and an offer to investigate one aspect of the complaint further. He confirmed that, as Ms X was not satisfied with the manager’s response, he would ensure her complaint was escalated to stage 2 of the complaints procedure and she should receive a response by 16 January.
  6. The Council issued a stage 2 response on 16 January 2020.
  7. Ms X responded on 19 January 2020 stating she wanted to escalate the complaint to stage 3. The Council acknowledged her request the following day and confirmed that her complaint would be escalated to stage 3.
  8. On 6 February 2020 Ms X sent two emails asking why her complaint was not being dealt with under the statutory Children Act complaint procedure and asking for it to be escalated to stage 2 of the statutory procedure. The service director responded explaining that the complaint was being dealt with under the Council’s complaints procedure as it is outside the statutory complaints process.
  9. On 3 March 2020 the Council issued a stage 3 response.
  10. I find no fault in the way the Council responded to Ms X’s complaint. It responded at all three stages of its complaints procedure and addressed all the issues raised by Ms X. The service director’s email of 21 December 2019 caused some confusion because Ms X thought this was the Council’s stage 2 response to her complaint. But there are no grounds to criticise this. The service director was simply attempting to help resolve some of the issues she raised.
  11. Ms X says her complaint should have been considered through the Children Act statutory complaints procedure. This is not correct. There is no requirement to use the statutory procedure for complaints about school transport.

Failure to put in place reasonable adjustments

  1. Ms X is autistic and needs time to process information. She struggles with auditory information and finds it easier to communicate in writing. She does not like telephone calls or face-to-face meetings. Ms X says she repeatedly told the team she was unable to process information in a face-to-face setting yet it made no accommodation for this in its dealings with her.
  2. Ms X has a right to go to court if she believes the Council has discriminated against her by not making reasonable adjustments. Only a court can determine whether the Council has unlawfully discriminated against Ms X. But we can decide whether it acted with fault in the way it dealt with Ms X and her request for reasonable adjustments.
  3. The Council says that, as Ms X expressed a preference for email communication, this became the primary method of communication. It says officers offered to meet with her but she declined because of her needs and this decision was respected. It says telephone conversations were held where necessary but accepts best practice would have be to follow up each of these telephone calls with an email repeating the information.
  4. Ms X requested reasonable adjustments because of her autism in emails dated 14 and 16 November 2019. She made further requests on 14 January and 6 February 2020.
  5. I find the Council failed to put in place reasonable adjustments to accommodate Ms X’s needs. It sent some communications by email but also continued to communicate with her by telephone.
  6. At stage 2 of the complaints process the Head of Finance and Corporate Services sent an email to Ms X saying it would be helpful to talk to her about her complaint and asking whether she would be able to talk on the phone briefly. Ms X responded stating “I would prefer to have all communication in writing. I am autistic and I sometimes struggle with audial processing”. The officer acted appropriately by responding in writing.
  7. However, in the stage 3 response the service director said Ms X “did not wish to meet” the stage 2 investigator and “did not feel the need to meet with myself to discuss the content of your complaint”. He went on to say, “I hope we can meet to discuss things in the future”. These comments did not take account of the fact that Ms X had already explained that she finds it difficult to process information in a face-to-face setting. Ms X found the service director’s comments extremely upsetting.
  8. I find the service director’s comments in the stage 3 response were inappropriate and insensitive and caused Ms X distress. The Council has apologised for this. It says the offer of a meeting was made out of courtesy as it reflects a standard part of its complaints procedure. However, the whole point of reasonable adjustments is that the Council must adjust its normal procedures to accommodate the disabled person’s needs.
  9. The Equality Act 2010 requires public sector organisations to proactively consider whether adjustments are needed and, if the adjustments requested are reasonable, it must make them.
  10. In addition, councils are required to follow statutory guidance implementing the Adult Autism Strategy. The guidance says councils should provide general autism awareness to all frontline staff in contact with adults with autism so they understand how to make reasonable adjustments in their behaviour and communication.
  11. I am not satisfied the Council had due regard to its obligations under the Equality Act and that was fault. The failure to consider Ms X’s need for adjustments caused her distress.

Agreed action

  1. In addition to the remedy it has already offered, the Council has agreed to:
    • apologise to Ms X and Y for the distress and inconvenience caused by its delay in arranging a taxi to take Y home from school on Monday afternoons;
    • apologise to Ms X for the distress and frustration caused by its failure to put in place reasonable adjustments and for the additional distress caused by the service director’s comments;
    • pay Ms X a further £200; and
    • review the way in which it considers requests for reasonable adjustments, and makes decisions, to ensure that staff are providing reasonable adjustments where appropriate.
  2. The Council should complete the first three actions within one month and the fourth action within three months of the date of this decision.

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Final decision

  1. I find the Council was at fault in that it:
    • delayed in making agreed mileage payments to Ms X;
    • delayed in arranging a taxi to take Y home from school on Monday afternoons from 18 November 2019;
    • failed to respond to Ms X’s emails and
    • failed to put in place reasonable adjustments for Ms X.
  2. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman

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