The Ombudsman's final decision:
Summary: The Ombudsman finds fault with the Council for failing to provide C with transport to school. This caused C’s mother, Mrs B, an injustice because she had to transport C to and from school. The Council agrees actions to remedy the injustice to Mrs B.
- Mrs B complains that despite an Ombudsman finding of fault in February 2020 the Council failed to provide her daughter, C, with the transport to school she was entitled to. As a result Mrs B continued to transport C, which prevented her from being able to work and placed her under significant strain.
- Mrs B also complains the Council refused to accept her complaint about this matter.
The Ombudsman’s role and powers
- 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)
- 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.
- 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)
How I considered this complaint
- I spoke to Mrs B and considered all the information she provided with her complaint. I considered the Council’s response along with the relevant law and guidance.
- Mrs B and the Council had the opportunity to comment on my draft decision. I carefully considered all the comments I received before reaching a final decision.
What I found
Summary of relevant guidance
- The Department for Education statutory guidance for home to school transport sets out councils’ duties. Councils must have regard for this when carrying out duties in relation to home to school transport and travel.
- The relevant legislation is contained within sections 508 and 509 of The Education Act 1996.
- Section 508B of the Act places a duty on Councils to make travel arrangements they consider necessary to facilitate attendance for eligible children. Schedule 35B of the Act defines eligible children.
The Council’s home to school transport policy
- The Council’s home to school policy sets out its duty and eligibility criteria.
- The Council says if a child is a registered pupil at their nearest suitable school and has special educational needs (SEN), a disability or mobility problems which means they cannot reasonably be expected to walk to school, then it will provide travel assistance free of charge
- Mrs B’s daughter, C, has special educational needs (SEN). She is entitled to free transport to school and this should be provided by the Council.
- Mrs B previously complained to the Ombudsman because the Council was not providing transport for C. In February 2020 the Ombudsman upheld Mrs B’s complaint. The Council said it would arrange transport for C as quickly as possible. It apologised to Mrs B and made a financial payment in recognition of the injustice it caused Mrs B because of its failure to provide C’s transport.
- Between February 2020 and July 2020 the Council held various consultations and meetings about C's assessment and needs. The request for transport to be sourced was made in May 2020. It conducted a tender process between May and June, but was unable to secure suitable provision for C.
- In July 2020 Mrs B complained to the Council because, despite the Ombudsman’s decision in February 2020, there was still no transport in place for C. Mrs B continued to transport C to and from school each day between February and the end of school year (July 2020), which caused financial difficulties and placed significant strain on Mrs B.
- The Council refused to accept Mrs B’s complaint. It said she had an open complaint with the Ombudsman about the same matter. Mrs B was dissatisfied with the Council’s response and complained to the Ombudsman.
- The Council said it made efforts to secure the right provision to meet C’s needs but had difficulty with the tender process. It says it has kept Mrs B updated and paid a four-way mileage allowance and one hour per day payment for Mrs B’s time.
- There has been transport provision in place for C since the start of the new school year in September 2020.
- Mrs B has submitted a claim to court for a daily financial payment for the period of 20 July 2020 to the end of school term. Therefore, this period is out of the Ombudsman’s jurisdiction and not included in my recommendations.
Failure to provide transport to school
- I find fault with the Council for its failure to provide C with the transport to school she was entitled to receive between February and July 2020.
- I don’t doubt the Council took steps to try to secure the transport provision for C. However, it has a statutory duty and it failed to meet this duty. It should have procedures in place for securing necessary provision for children with SEN and complex needs to prevent a situation where a child is left without transport they are entitled to.
- I also found delays in the assessment and decision process. For example, it took nearly three months from the Ombudsman decision in February 2020 until May 2020 for the Council to request the transport to be sourced. The Council already knew and accepted C was entitled to transport. The delay in this request is fault and adds to Mrs B’s injustice, which was already prolonged and significant.
- The Council failed to separate its challenges with securing the provision from Mrs B’s injustice. The efforts it made to find suitable provision does not negate the injustice to Mrs B. The findings and remedy from the previous decision accepted and remedied the injustice to Mrs B. The Council paid Mrs B an additional daily payment on top of her mileage. This payment recognised the inconvenience to Mrs B of having to provide daily transport. In my view this does not adequately remedy the injustice. My recommendations recognise the significant time, inconvenience, and pressure she experienced due to the lack of transport provision for C.
- The Council was wrong to tell Mrs B it would not accept her complaint at stage one in July 2020. The previous complaint with the Ombudsman was closed when the decision was issued in February 2020. If the Council was not clear what to do in these circumstances it should have sought advice from the Ombudsman, not simply told Mrs B it was not able to accept the complaint.
- Within one month of my decision the Council agrees to:
- Apologise to Mrs B for the injustice it caused her because of the faults identified in this statement.
- Pay Mrs B an additional £100 per week (in addition to the mileage payment), calculated from 24 February 2020 to 20 July 2020 (excluding school holidays). This payment recognises the undue pressure, time and inconvenience caused by the Council’s failure to provide school transport. The Council may deduct the daily one-hour payment it made to Mrs B from this amount.
- Pay Mrs B £100 for her time and trouble bringing this complaint to the Ombudsman
- Review its commissioning arrangements for transport for children with complex needs and disabilities to ensure there is sufficient, timely provision in the future.
- I find fault with the Council causing injustice to Mrs B.
Investigator's decision on behalf of the Ombudsman