West Sussex County Council (20 001 844)

Category : Education > School transport

Decision : Upheld

Decision date : 21 Jan 2021

The Ombudsman's final decision:

Summary: Mrs B complains the Council has not properly considered her request for school transport assistance. She says the Council’s appeal policy does not follow statutory guidance and has led to delays in it considering her case. The Ombudsman finds fault in the Council’s appeal procedure, delays in its responses and assessment and in how it explained its decisions.

The complaint

  1. The complainant, who I refer to as Mrs B, complains the Council delayed in considering her application for school transport assistance. She says the Council did not properly consider her daughter’s special educational needs (“SEN”) and applied the wrong criteria. She says the Council delayed in arranging assessment. Mrs B also says the Council’s appeal procedure is long and protracted, which has added to the delays. She says the procedure does not follow statutory guidance.

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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. 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 considered the information Mrs B provided and spoke to her representative about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments.

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What I found

Law and Guidance

  1. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
  2. Eligible children are children of compulsory school age who:
    • cannot walk to school because of their SEN, 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.
  3. There are additional entitlements for children from low income families. Councils may also make any travel arrangements they consider necessary for children who are not eligible children.
  4. The Department for Education has published the ‘Home to school travel and transport guidance’ (“the Guidance”) for councils. The Guidance says councils should make transport arrangements for all children who it cannot reasonably expect to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs. Councils should assess eligibility for children with SEN on an individual basis to identify their particular transport needs. Councils should not consider normal requirements such as walking distances.
  5. The Guidance also sets out a recommend two-stage appeal procedure:
    • Stage 1: review by a senior officer
    • Stage 2: review by an independent appeal panel
  6. The Ombudsman’s position is that councils should follow the recommended appeal procedure unless they have good reason not to.

Council Policy

  1. The Council has adopted the following appeal procedure in SEN cases:
    • Step A – If a parent has concerns regarding a decision about transport, they should in the first instance discuss this with their child’s planning coordinator. The case may be reviewed by a team manager or go to the Special Educational Needs and Assessment Panel for further discussion.
    • Step B – If the same outcome remains after Step A parents can ask for their case to be reviewed by the Principal Advisor for SEN and Inclusion. The principal advisor will review all the evidence provided and give a decision regarding transport entitlement.
    • Step C – If parents are not happy with the decision from Step B they can ask for an appeal, at stage one of the appeals process, which is to the Director of Education and Skills. The director will review all the evidence provided and give a decision regarding transport entitlement. A route of appeal to Stage Two will be opened up at this point.
    • Step D – Once the decision has been considered by the Director of Education and Skills parents can ask for their case to be heard by a panel of elected members. They will review all of the evidence provided and reach a decision as to whether transport should be granted or not. A stage two appeal is held ‘in person’ with Members hearing from both the parent and the County Council, as well as considering any written evidence.
  2. The Council says Steps C and D are respectively Stages 1 and 2 of the formal appeal procedure, in line with the statutory guidance.

Background

  1. Mrs B’s daughter, Y, has SEN and an Education Health and Care Plan (“EHCP”). She recently applied and was successful for a place at a nearby school for children with SEN. The school is within the statutory walking distance. However, Mrs B says that Y cannot walk safely to school because of her needs.
  2. Mrs B says Y has significant learning difficulties, challenging and unpredictable behaviour, a lack of road safety awareness, poor balance and coordination and faecal incontinence, which is made worse by walking.
  3. Mrs B also has two other children that attend different schools and could not get all of them to school in the morning.
  4. In early April 2020, Mrs B enquired about transport assistance to the School. The Council said she would not qualify under distance but could apply based on low income. Mrs B’s representative, Mrs C, replied to say distance did not apply in the case of SEN students. She outlined Y’s needs and asked the Council to consider the request.
  5. The Council says it reviewed Y’s EHCP and associated assessments. It took the view Y did not meet the criteria for transport either on distance or under SEN. It said Y should be able to get to school with the support of an adult. It set out the appeal procedure for Mrs B to follow and said it would list her case for panel.
  6. Mrs C expressed concern about the appeal procedure being long and cumbersome and said it diverted from the statutory guidance. She asked what it meant by the panel. The Council explained this was the SEN panel, which was not a formal part of the appeal procedure.
  7. Mrs C submitted an appeal to the Council at the end of April 2020. The Council responded and in May 2020. It said its response was at stage one of the school transport appeals procedure. It upheld the original decision. It said it had reviewed the individual circumstances and did not believe the case was exceptional so as to depart from the published policy. It did not give any explanation.
  8. Mrs C said there was no need to show exceptional circumstances. She said the Council had not given any reasons for why Y did not meet the criteria for transport based on her SEN. The Council did not respond so in June 2020 Mrs C chased and said if she did not hear back within three days, she would proceed to the next stage of the appeal procedure.
  9. The Council sent a holding response but did not reply in full until the end of July 2020. It said it found no evidence of Y having physical needs that would mean she could not walk to school with support. However, it would contact the child development centre to seek a medical view.
  10. The Council received medical information in early August 2020. It wrote to the doctor for more information in late August 2020. The doctor responded the following day. However, the Council again did not consider they provided enough information to show Y could not walk to school accompanied. It decided to instruct an Occupational Therapist (“OT”) to assess Y and in the meantime agreed to provide temporary transport assistance. It put this temporary assistance in place in late October 2020.
  11. The Council has not yet communicated a decision about transport to Mrs B.

Findings

  1. There are three elements to this complaint:
    • The nature of the Council’s appeal procedure
    • Deciding not to provide transport assistance without properly explaining why
    • Delay in the Council making a decision
  2. I find fault on all three points. On the second point, I have not investigated how the Council made its decision, as Mrs B has a right to appeal against this. However, I have investigated whether it properly explained its reasons.

Appeal procedure

  1. In his report ‘Under Pressure’, the Ombudsman said we will continue to focus on what legislation says must and should happen. We will also consider how councils have justified any departure from what statutory guidance says should happen. Unless a council has good reasons for departing from the statutory guidance, we are likely to find fault.
  2. The Council says its appeal procedure does not depart from the statutory guidance. It includes the recommended two stage procedure at Steps C and D. The two steps before that are in place to help it make decisions before the need for appeal.
  3. It is my view the appeal procedure does depart from the statutory guidance. It is, in effect, a four-stage procedure as there is an expectation that parents complete the first two steps before the Council offers the latter two. It means anyone unhappy with the initial decision may need to get an SEN panel decision, then a review by the principal advisor, before a review by the director, then another decision at an independent panel. It will almost certainly take a long time to complete all this, and there are no clear timescales in the Council’s policy about how long each step will take.
  4. I understand the Council’s desire to resolve cases before appeal. However, the intention of the guidance is clearly to set out a way for parents to formally appeal the initial decision, within a reasonable timescale. The additional steps over and above those set out in the guidance give the perception of gatekeeping and will likely contribute to delays in resolving matters that reach the formal stage.

Explanation of Decision

  1. I have reviewed the emails that set out the Council’s decision in April 2020. The Council explains that it has reviewed Y’s ECHP and other assessments and decided Y could get to school with support of an adult. However, it does not say what factors it considered or why it reached this decision. It does not address any of the reasons Mrs B gave for why Y could not walk to school or explain why these do not change its view.
  2. The Council’s response in May says it is responding at Stage 1 of the appeal procedure. However, in its response to my enquiries the Council says it was responding at Step B. So, it is not clear what step of the appeal procedure it intended to respond under. The response only says its initial decision was correct. Again, it does not explain what factors it considered or how it reached that decision.
  3. The Guidance says the Stage 1 review response should set out what factors the Council considered and the rationale for its decision. I would expect to see a similar explanation at any stage of the procedure, including the initial decision. The Council’s responses do not in any way set out what factors it considered or its rationale. They simply say, ‘this is what we have decided’. This is fault.
  4. Without a proper explanation the applicant may be left uncertain about why the Council has not awarded transport. It also means they are at a disadvantage when appealing the decision, as they cannot respond to any of the reasons the Council declined assistance.

Delays

  1. It is clear there have been significant delay in making a decision about transport assistance. At the end of the first school term Mrs B still does not have a final decision either to award assistance, or that she can appeal.
  2. Part of the reason for delays early on is that the Council’s lack of explanation and its lengthy appeal procedure, caused confusion to Mrs C. Therefore, Mrs C spent time chasing for clarification and a full response, before submitting a formal appeal. When she did submit an appeal, the Council’s again did not properly explain its reasons and caused further confusion about the appeal procedure. Mrs C wrote again for clarification, following which there was a delay of delay of nearly two months before the Council responded in full at the end of July 2020.
  3. From that point on there have been significant delays in assessing Y. I understand the Council did not consider the doctor provided enough information. However, it was at least three weeks between it receiving the doctor’s initial response and the Council asking for further information from the doctor. It then decided to instruct an OT at the end of August 2020 but has yet to communicate an outcome from that assessment.
  4. The Council indicated in its response to my enquiries that it would be in a position to make a decision by the end of term in mid-December 2020. Mrs C says she has not heard anything from the Council.
  5. I note the Council agreed to set up temporary transport assistance. However, it took more than six weeks before it put this in place in October 2020. That temporary assistance is only agreed to December 2020, so it is unclear whether the Council will continue to provide any assistance next term.
  6. I find the Council is at fault for the delays in progressing this matter.

Consideration of Remedy

  1. I have found fault in the Council’s appeal procedure, its explanation of its decisions and the delay. I recommend it apologise to Mrs B for the fault identified.
  2. I recommend the Council update its appeal procedure to follow the two-stage procedure in the Guidance. The Council should set out clear timescales for each step of the procedure in its policy, in line with the timescales set out in the Guidance. The Council should also update its procedures to ensure it provides clear explanations of its decisions, including what factors it considered and its rationale.
  3. I find the delays and lack of explanation caused injustice to Mrs B, in terms of distress and uncertainty about whether she would receive transport. I recommend the Council pay Mrs B £150 to acknowledge this.
  4. There is now continued uncertainty about when the Council will make a decision and whether Mrs B will continue to receive assistance in the meantime. In normal circumstances Mrs B would have had the opportunity to appeal any decision to refuse transport before the start of the first term. If the Council’s eventual decision is not in her favour, Mrs B would have a right to appeal but may not receive any assistance while the Council processes that appeal. She would still need to go through both Stages 1 and 2 (Step C and D of the Council’s procedure), which could take up to two months. It is my view that it would not be fair, given the delays on the Council’s part, for it to remove temporary assistance while any appeal is ongoing.
  5. I therefore recommend the Council complete its assessment and make a decision on transport assistance within a month of this decision. I recommend the Council continue to provide the same temporary assistance as it is now, until it makes that decision. I also recommend that if the Council declines Mrs B’s request for assistance, it continues to provide that temporary assistance until the outcome of any appeal.

Agreed action

  1. The Council has agreed to, within a month of this decision:
    • Apologise to Mrs B for the fault in its appeal procedure, the delays in progressing her application and the lack of explanation in its responses
    • Pay Mrs B £150 to recognise the distress and uncertainty caused
    • Complete its OT assessment and make a final decision on transport assistance
    • Continue to provide the same temporary transport assistance until it has made that decision and, if the decision is to decline assistance, until the outcome of Mrs B’s appeal
  2. The Council has also agreed to, within three months of this decision:
    • Provide evidence it has updated its appeal procedure to follow the recommended two-stage procedure in the statutory guidance and include clear timescales in its policy
    • Provide evidence it has updated its procedures to ensure it gives clear explanations of its decisions on transport assistance, including what factors it considered and its rationale

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Final decision

  1. The Council is at fault in its appeal procedure, delays and the way it responded to Mrs B’s application.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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