• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mrs B complains that the Council did not properly consider her application for school transport for her son D, who has Special Educational Needs. The Ombudsman has found fault in the way the Council considered D’s application. The Council has already exercised discretion to provide transport from the start of the calendar year. It has also agreed to the Ombudsman’s recommendation that it reimburse Mrs B’s transport costs for D from the start of the school year, amend its policy and remind officers of the correct test for deciding whether to provide transport.

The complaint

1. Mrs B complains that the Council did not properly consider her application for school transport for her son, D, to the secondary school named in his EHCP and her appeal against the refusal of transport.

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The Ombudsman’s role and powers

1. 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)
2. 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)
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

1. I have considered Mrs B’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses together with the appeal papers. I have considered the Council’s Home to School Education Transport Policy and the Department for Education’s Home to school travel and transport guidance. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Relevant law and guidance

Special Educational Needs

1. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

Suitable transport for eligible children

1. 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 for children eight and above.
   • are from a low-income family, defined as receiving free school meals or in receipt of the maximum Working Tax Credit. These children are entitled to free school transport if their nearest suitable school is more than two miles away if they are aged eight to eleven.
   • 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. Eligibility for such children should be assessed on an individual basis to identify their particular 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 special educational needs and/or disability. (Education Act 1996 section 508B and Schedule 35B)
2. Councils also have discretion to make provision for non-eligible children where they consider it “necessary” to facilitate the child’s attendance at school. (Education Act 1996 section 508C)

Statutory Guidance

1. The Government also issued statutory guidance in July 2014 to local education authorities on home to school transport. This says:
   • When determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
   • The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 18)
   • For a council’s school transport arrangements to be suitable they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 35)

The Council’s policy

1. The Council's 2019/20 policy on school transport set out how it considered whether to award free transport to children with SEN, disabilities, or mobility issues. In considering where a child was eligible under the statutory criteria, the main relevant sections of the policy were as follows:

“Criteria for agreeing home-school travel arrangements for pupils with an EHC plan

General points…

1. • Special Educational Needs travel arrangements must be reconsidered as part of the pupils’ annual review process.

Travel arrangements will be agreed for pupils with an EHC plan where:

1. • A pupil lives further than the statutory distance between home and school and has an EHC plan i.e.; under 8 years old and over 2 miles from home to school OR over 8 years old and over 3 miles from home to school AND/OR
   • The LEA has determined the name of the school and type of provision and this meets the criteria for distances above AND/OR
   • A pupil has a[n] EHC plan for a severe medical or physical condition and there is detailed written advice from appropriate medical personnel

Travel arrangements will not be allocated where…

1. • the pupil is not attending their local mainstream school, or the nearest suitable special provision, and the school is one of parental preference;

Note: No dispensation will be made for parents/carers who are working at the time their children travel to school. They will be expected to make arrangements for someone else to accompany their child or to take them to school.”

1. If a child is not eligible under the statutory criteria, the Council will also consider whether there are grounds to exercise discretion to provide transport. The relevant section of the policy says:

“Exceptional circumstances:

The Council will consider exceptional circumstances on a case by case basis and some examples of where the Council may exercise its discretion to provide free home to school travel arrangements are as follows:

Where there are two or more children of primary age in a family (living at the same address) and where for one child the authority has determined special provision making it impossible for the parent to make arrangements…”

What happened

1. Mr and Mrs B have four children. C is the eldest. Their second son, D, has an EHCP and was at the same primary school as his sister, E. D was due to move to secondary school in September 2020. Their youngest son, F, was three years old at the time of these events and also had an EHCP.
2. D’s EHCP explained that he has difficulties with communication, learning and some aspects of personal independence and life skills. The EHCP noted that “Mum shared that at home [D] can become emotional, upset and lash out violently at his siblings”, and that “an Early Help Assessment was put in to place for [D] following behavioural issues and physical violence between himself and his siblings”. It noted that “Mum shared that [D] has no awareness of danger and she would not be comfortable allowing him out alone”. It also noted that D was co-operative with adults and peers and did not display behavioural challenges in school.
3. In respect of D’s independence, the EHCP sought the following outcome: “By the end of Year 8, D independently completes daily living tasks and is able to keep himself safe when accessing community facilities”. To achieve this, members of school staff would support D with “safely accessing the wider community [and the] use and understanding of public transport”.
4. Mrs B applied for transport for D. Her application only referred to having two other children.
5. The Council refused the application. It said the home to school distance was 2.5 miles, and so under the statutory 3-mile distance for children aged 8 and above. It had considered the application with reference to D’s EHCP and found no mobility or learning difficulties which would prevent D travelling to school with parental support. It also noted that there were two parents at home, so a parent could accompany D to and from school. It asked Mrs B to “please note that our policy states that no dispensation will be made for parents/carers who are working at the time their children travel to school”.
6. Mrs B asked for a review of the decision. She said she had to take D’s sister, E, to primary school and her younger brother, F, to a separate nursery. The officer noted the comments in the EHCP but refused transport on review because Mrs B and her husband were both at home and one could accompany D and the other E to school. There were also breakfast and after-school clubs available and Mrs B could first drop off F at nursery and then E at primary school before walking with D to secondary school. This would involve a total journey time for D of 1 hour and 20 minutes each morning and afternoon, including both walking time and the time to settle the younger children.
7. Mrs B appealed again. Her appeal was heard by an independent panel.
8. Mrs B explained that her youngest son, F, had been diagnosed with Autistic Spectrum Disorder (ASD). In order to help his transition to primary school, she had moved him to the same primary school as his siblings. She also provided a letter from the Council’s SEND co-ordinator which explained that D had difficulties managing his emotions and with sleep, and this impacted on his concentration during the day. If he had to get up early for a long walk to school, this might therefore impact on his learning. D also had no sense of danger and so could walk off or into the road if unaccompanied.
9. The Council’s presenting officer set out the Council’s case. He explained that there was no automatic entitlement for D on distance and age grounds. He said the Council did not have to automatically consider F’s ASD diagnosis as he was below primary school age. He said that E could attend breakfast and after school clubs at a cost of £8 a day which would allow D to be accompanied to school. There was also nothing in the EHCP to suggest that D could not walk, if accompanied, and that F could accompany his brother in a buggy as required. The officer noted that, under the Council’s policy, no dispensation would be made for parents who work.
10. The clerk’s notes show that Mrs B was able to put her case. She explained that the cost of breakfast / after school clubs would be £40 a week this year and £80 next year - this would be difficult for them to find as their income was low, and their children were on pupil premium. She explained that D had behavioural problems at home and a long walk to school would impact on his learning.
11. After Mrs B and the presenting officer withdrew, the panel discussed the merits of the appeal. Members unanimously refused the appeal.
12. The clerk wrote to Mrs B and explained that the panel had assessed D’s application on an individual basis and considered that the Council’s policy had been correctly applied. Members considered that D could walk to school if accompanied. They “regretted that they could not establish exceptional circumstances that would permit them to uphold your appeal. They could not take into account the circumstances of D's younger brother because he is not of statutory school age. They were also unable to take into account the fact that your partner works and is unable to assist with transport as the Council’s policy makes it clear that no allowances will be made for circumstances such as these”.
13. Mrs B complained to the Ombudsman who wrote to the Council. The Council considered that the overall decision to refuse transport was correct. However, it accepted that one parent walking all three children to school could be challenging. It felt that, when considering whether there were exceptional circumstances, the Stage 2 Panel could have asked further questions about reasonable adjustments that could be made to allow both parents to carry out the school runs.
14. Given this, the Council decided to implement the exceptional circumstances clause within its policy and to grant transport for D for the remainder of this school year. This would allow the parents time to consider any alternative arrangements that could be put in place to allow to assist with the school run.
15. The Council said that, if the parents had done everything possible to make reasonable adjustments to the working day, and could provide evidence of this, the Council would re-assess whether to apply the exceptional circumstances clause for the new academic year starting September 2021.

My assessment

1. The Council has a two-stage process to consider appeals as recommended by the statutory guidance. It appears that Mrs B was given appropriate opportunities to put forward her case both in writing and orally to the panel.
2. However, in order for the review and appeal to have been properly considered, the correct test, as set out in the statutory guidance, had to be applied. The Council also had to give due consideration to any relevant evidence.
3. The test for eligibility in the case of children with SEN is set out in full in paragraphs 7 and 9 above. In brief, councils must assess cases individually and consider whether a child can reasonably be expected to walk to school due to problems associated with their SEN/disability.
4. It appears that the panel accepted that D could not walk safely to school if unaccompanied. However, it also had to consider if D whether it was reasonable to expect his parents to accompany him taking into account a range of factors such as whether one would normally expect a child of that age to be accompanied.
5. The Council’s 2019/20 policy says that it will provide transport for eligible children with an EHCP under the statutory criteria where “A pupil has a EHC plan for a severe medical or physical condition and there is detailed written advice from appropriate medical personnel”. This has been amended in the latest policy to read: “the pupil has a condition which would prevent them from walking to school and there is detailed written advice from appropriate medical personnel to corroborate this”.
6. However, both the 2019/20 and 2020/21 policies say that that the Council will make no dispensation for parents who are working at the time that their children travel to school.
7. I note that the presenting officer emphasised this latter point to the panel and the panel referred to this when considering D’s eligibility. This was fault. When considering eligibility under the statutory criteria, the Council must consider whether it would be reasonable to expect parents to accompany the child. Applying a blanket restriction on parents who are working is inconsistent with what the guidance requires.
8. The presenting officer also explained to the panel that, under the Council’s policy, it did not have to take into account D’s younger brother, F, as he was of pre-school age. This restriction is in the “exceptional circumstances” section of both the 2019/20 and 2020/21 policies.
9. The Council was entitled to include this in its discretionary criteria because it is for the Council to decide how to exercise its decision.
10. But the presenting officer’s advice was incorrect in respect of the statutory criteria. When considering D’s eligibility under the statutory criteria, any arrangements that the parents might have to make for F might affect whether they could reasonably be expected to accompany D. The notes show that the panel wrongly excluded F’s situation from the decision-making process when considering D’s eligibility.
11. The clerk’s notes also make no reference to the panel considering whether a child of D’s age would normally be expected to be accompanied. The panel was required to consider this but did not do so. This was fault.
12. Lastly, I note that Mrs B and the SEND co-ordinator also raised concerns that the distance that D would have to walk to school would mean that he would not arrive at school in a fit state to study. This was mentioned during the panel hearing but was not considered as part of the decision-making process. This was fault.
13. The Council has already agreed to provide transport from the start of 2021 because it did not ask what adjustments Mr and Mrs B might have made to be able to accompany their children to school. Given this, the failure to properly consider D’s application under the statutory criteria and Mrs B’s time and trouble, I also do not consider it reasonable for Mrs B to be asked to pay for D’s transport for the first term of the 2020/21 school year.
14. The Council should also review its policy in light of my findings above.

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Agreed action

1. The Council has agreed to the Ombudsman’s recommendations that, within one month of the decision date on this complaint, it:
   • reimburse the costs that Mrs B incurred in getting D to school in the autumn term;

and within three months:

1. • review its policy to ensure that it refers to the correct test when considering its statutory duty to provide transport in the case of children with SEN; and
   • remind officers and panel members of the correct test.

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Final decision

1. I have closed my investigation into Mrs B’s complaint as I consider that the agreed actions above represent a suitable response to the fault and resulting injustice.

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Investigator's decision on behalf of the Ombudsman

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