Summary: The Ombudsman found no fault on Mrs W’s complaint about the Council failing to provide for her son’s free home to school transport as it refuses to pay for the inward and outward journeys when he is not in the car. The Council’s weekly payment covers all her travel costs to and from school. Mrs W failed to show she is out of pocket from this decision.

The complaint

1. Mrs W complains the Council fails to provide free transport between home and the school named in her son’s Education, Health and Care Plan, as it refuses to pay for the return home and outward journey when her son is not in the car; as a result, this costs her £530.10 a year as it pays only for 2 out of the 4 journeys she makes each school day.

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The Ombudsman’s role and powers

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)
3. 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)

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Council’s Home to School Transport Policy 2017/18

4. Pupils are eligible for free home to school transport if they are:

• A resident of the borough of Walsall; and
• They are 5-8 years old and live more than 2 miles from their nearest suitable school; or
• They are 8-16 years old (at the end of the school year in which they reach 16) and live more than 3 miles from their nearest suitable school.

5. The nearest suitable school is the one with places available that provides education appropriate to the age, ability and aptitude of the child, and any special needs the child may have.
6. The payment of travelling expenses in the form of a Personal Travel Budget, a mileage or a cycling allowance, may be offered as alternatives where this is cost effective. For children with special educational needs, this allows families to make their own travel arrangements for travel. The budget is based on the distance from home to the school, for one round trip per school day, and a mileage rate of 45p per mile.

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Education Act 1996

7. The law says a local authority must make, in the case of an eligible child in its area, such travel arrangements as it considers necessary to secure suitable home to school travel arrangements to allow the child to attend a relevant educational establishment are made and provided free of charge. (section 508B(1))
8. ‘Home to school travel arrangements’ for an eligible child are travel arrangements relating to travel in both directions between the child’s home and the school. (section 508B(3))
9. An eligible child is a child who is of compulsory school age who is either: a child with special educational needs; a disabled child; a child with mobility problems; is registered at a qualifying school within walking distance of home and, having regard to these, cannot reasonably be expected to walk to the school. (schedule 35B)

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How I considered this complaint

10. I considered all the information Mrs W sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to the Council and Mrs W. I considered their responses.

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What I found

11. Mrs W’s son X, is aged 8 and has complex needs. The school he goes to is named in his Education, Health and Care Plan. He goes there 5 days a week and has done since September 2019. The school is 3.1 miles from his home. Mrs W says he cannot use public transport due to his needs. The Council assessed X as eligible for home to school transport. Mrs W asked for this in the form of a mileage allowance so she could take him to and from school.
12. The Council awarded him a Personal Transport Budget (PTB) but, only for 2 of the 4 trips Mrs W makes each day to and from the school. This amounted to £530.10 for a daily mileage of 6.2 miles (3.1 miles x 2 x 0.45p x 190 academic days). Mrs W argues the Council should pay for the full daily travel mileage of 12.4 miles instead.
13. The Council refuses to pay for the journeys when X is not in the car. This means the cost of her return journey from school in the morning, and the outward journey to school to collect X in the afternoon, are met by Mrs W as he is not in the car. For ease of reference, I refer to these journeys as ‘empty car journeys’.
14. Mrs W argues the Council’s policy does not comply with the law about mileage allowances which says home to school transport must be provided free of charge. She points out the absurdity of not paying for the empty car journeys. As it pays only 2 out of 4 daily journeys to and from school, she argues this does not make it free of charge. The only way it would be free is if she remained outside the school all day, waiting to take him home at the end of the day.
15. Mrs W unsuccessfully appealed the Council’s decision to its Home to School Transport Appeal Panel.
16. The Council argues it is under no legal obligation to pay the mileage for the empty car journeys. It says it is entitled to rely on its transport policy, which was approved after public consultation, unless the courts say it is unlawful. It also argues the law is clear it can only pay journeys to school and back home at the end of the day. It says it has significant discretion about how to comply with section 508B of The Education Act 1996.
17. Under the PTB agreement Mrs W has with the Council, it agreed to calculate the PTB based on the mileage of each return journey which X is to take from home to the school using the rate of 45p a mile over 190 term time days each academic year (section 3.2). The PTB is to cover all costs and expenses, ‘whatsoever which arise directly or indirectly’ out of Mrs W complying with the requirement to be responsible for arranging and paying for X’s travel to and from school each day and all associated costs and expenses. (section 5.2)
18. The Council’s guide for PTBs states they are granted at the discretion of the Council.
19. In response to my enquiries, the Council explained:

• it drafted, consulted upon, and implemented its policy according to its statutory obligations;
• if Mrs W is unhappy with the arrangements, it can provide appropriate transport for X, free of charge;
• the £13.95 weekly payment she receives is enough to satisfy all the journey costs each week, regardless of the number of journeys made each day. As these are public funds, it must ensure payments are not more than what they need to be when reimbursing actual expenditure incurred;
• it calculated the cost of travelling 31 miles a week would consume £6.05 of fuel each week. This is based on an average car doing 30 miles/gallon and a gallon of fuel costing £5.85. Doubling this to include the empty car journeys, amounts to £12.10 a week which is still below the weekly £13.95 it pays;
• the Council continued to pay this amount even when schools were closed because of Covid-19;
• if she claims she is incurring costs not covered by the payment, she needs to show how she is financially disadvantaged by its decision. Despite requests, she failed to do so; and
• its policy avoids the need for the Council to verify the actual number of journeys made each day, because its mileage rate is reasonable and realistic. In addition, its policy does not discriminate between parents who drop their child off, and then do not return home, from those that do.

Analysis

20. Taking account of all the evidence and circumstances of this complaint, I found no fault. In reaching this conclusion, I took the following in to account:
1. At the root of this complaint is the central issue of whether the travel arrangements agreed between the Council and Mrs W are ‘free of charge’ to her. If Mrs W has costs not covered by the payment, which she meets herself, this would mean transport is not free of charge.
2. The Council explained why it pays for one round trip and not empty car journeys. This is because of the mileage rate it pays, the reduced need for administration, and not having to verify which parents travel home after dropping their child at school, and which do not because they go on to work for example.
3. The Council provided information about why it considers the weekly payment it gives Mrs W covers her costs. It estimates her weekly cost of 1 round trip a day at £6.05 but, pays her £13.95 a week. Mrs W argues she has the additional cost of her return journey which is not reflected in the Council’s decision. Doubling her weekly cost to £12.10 brings it under the £13.95 a week the Council pays her. This means if the Council calculated the payment to include the empty car journeys, as Mrs W wants, she would lose £1.85 a week, making her worse off than she is now financially. This means Mrs W would suffer no injustice even if the Council’s approach had amounted to fault.
4. I am satisfied the travel arrangements agreed between Mrs W and the Council means X receives free home to school transport.
5. Mrs W failed to provide evidence of financial disadvantage by the Council’s decision.
6. If, in the future, she decides the payment does not cover all her expenses, because of rising fuel costs for example, Mrs W will need to gather her evidence and send it to the Council for it to consider.

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Final decision

21. The Ombudsman found no fault on Mrs W’s complaint against the Council.

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Investigator's decision on behalf of the Ombudsman