Summary: Miss X complained that the Council failed to provide suitable home to school transport for her son and did not consider her appeal properly. We find that the Council was at fault in the way it considered her appeal. It has agreed to give her an opportunity to make another appeal including the chance to present her case in person. It will also review of the wording of its school transport policy on involving parents in making the transport arrangements.

The complaint

1. Miss X complained that the Council has:
1. failed to make suitable transport arrangements for her son, who has special educational needs, to attend his specialist school; and
2. failed to consider her appeal about the transport arrangements properly.
2. As a result she says her son has missed school and has to continue to use unsuitable transport which causes him distress. Also she says the fuel allowance the Council has offered as an alternative is not enough to enable her to make other arrangements.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) and 34(3), as amended)
4. 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)
5. 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

6. I discussed the complaint with Miss X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, policy and guidance on home to school transport. Miss 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

Home to school transport

Who qualifies

7. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. (Education Act 1996, section 508B and Schedule 35B)
8. Eligible children include those who:
• live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above).
9. The 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.

Travel arrangements and suitability of transport

10. Travel arrangements made for a child who qualifies for free transport may include paying an allowance for the parent to transport the child, but only where:
• the arrangement is voluntary; and
• it does not give rise to additional costs to the parent. (Education Act 1996, section 508B(4)(b)(iii))
11. Statutory Guidance ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’), issued in July 2014 says about suitability of the travel arrangements:
• Best practice suggests that the maximum each way length of journey for a child of primary school should be no more than 45 minutes and for secondary school age 75 minutes. For children with SEN and/or disabilities, journeys may be more complex and a shorter journey time, although desirable, may not always be possible.
• For 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.
12. The Council’s ‘Home to School Transport Policy’ says:
• “Children with an Education Health and Care Plan should be transported to school in a manner that assists their readiness to engage in learning on their arrival at school and ensures both their comfort and safety.”
• Where a child is entitled to transport under this policy, the Council will provide suitable transport and seek to ensure this is cost effective. The transport provided may take the form of a bus pass, train pass, or seat on a contract vehicle for children with special educational needs and disabilities. The Council may provide a fuel allowance for parents to take their children to and from school, where it is more cost effective than providing contracted or arranged transport. The Council would pay parents two return journeys at 45p per mile. Where it is not cost effective, it can consider offering 17p per mile.
• The Council may provide a Passenger Assistant following an assessment of a child’s special educational needs and/or medical needs. The assessment will take into account any dangers or health and safety risks to an individual child or other passengers on the vehicle caused by a child’s needs.

School transport appeals

13. Councils must take account of the statutory Guidance when setting their transport policies. The Guidance recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support:
• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.
14. The Guidance says the independent appeal panel should consider “written and verbal representations from both the parent and officers involved in the case”. Appeal panel members should be independent of the original decision-making process but do not have to be independent of the council. They should be “suitably experienced”, at the council’s discretion.
15. The stage 2 decision notice should set out the decision, the information and factors considered, and the rationale for the decision. It should also include information about parents’ right to contact the Ombudsman if they consider there were flaws in the way the council considered their appeal.
16. The 2014 Guidance says, “Previous guidance made clear that local authorities should have in place and publish their appeals procedures but left it to the individual authority to determine how this should operate in practice. We are now recommending that local authorities adopt the appeals process set out below… The intention is to ensure a consistent approach across all local authorities, and to provide a completely impartial second stage, for those cases that are not resolved at the first stage”.

Council’s appeals process

17. The Council has a two-stage transport appeals system as follows:
• Stage 1 - consideration by an officer more senior than the previous decision maker. This is a Service Manager in the admission and education awards section.
• Stage 2 - a full and final decision made by an officer more senior than the officer that considered the first stage appeal. This is the Head of Statutory and Regulated Customer Services.
18. In April 2020 the Council amended its policy to include the following:

“Where a parent feels he or she is unable to fully and clearly make their case in writing at the second stage of appeal, they may request a telephone or in person appointment with the second stage decision maker to explain their case orally.”

“In all circumstances, there will still need to be a written appeal submitted by the parent (or their representative) as their grounds for reconsideration at the second stage of appeal.”

What happened

Background

19. Miss X has a son, Y, who has autism and communication difficulties and is prone to anxiety. Y has an Education Health and Care Plan which from 2019 named a specialist secondary school, School 1. School 1 is over 40 miles from the family’s home.
20. The Council approved Miss X’s application for home to school transport and awarded free transport from September 2019 to Y as an eligible child. This was a taxi shared with another pupil attending the same school.
21. During 2019 Miss X raised concerns with the Council and the transport operator about various matters including conflicts between the children, the addition of another child with behavioural problems, and the length of the journey because of having to pick and drop off the other children. She said the journey was causing Y anxiety and distress affecting him during the school day and when he returned home. In late 2019 the Council decided to provide a Passenger Assistant on the route, based on the assessed needs of the other child and a request from School 1.

Events from March 2020

22. In early March 2020 Miss X wrote to the Council with a ‘stage one appeal’ outlining the difficulties Y was having on the taxi transport. She explained how his condition affected his anxiety levels. She quoted from professional Educational Psychology and Occupational Therapy reports confirming Y’s difficulties in dealing with change, social interaction and understanding the behaviour of others. She gave examples of the negative impact the arrangements were having on him, referring to changes in drivers, changes in pick up and drop off times leading to increased travel time, and the disturbing behaviour of the third child. She said the School shared her concerns that the transport was causing Y undue stress and meant he was not arriving at school in a fit state to learn. She asked the Council to arrange a taxi for Y without the other children so he did not miss out on education.
23. Around the same time Miss X wrote separately to the Executive Director of Children & Families. She also provided a letter from Y’s GP supporting a request for Y to have his own transport as a temporary solution “until things settle”.
24. The Council combined its reply in a stage 1 appeal response on 13 March, saying this was part of a two-stage appeal process. It said where the Council has a duty to provide transport it will look to use existing route arrangements to the school. It explained how it had dealt with the initial concerns Miss X raised, but said it had now reviewed the new information she provided and contacted the operator and colleagues within the Council. After considering all this information, including the letter from the GP, the Council said it had decided to “exceptionally award [Y] a discretionary contribution of 17p per mile fuel allowance”. It said this was in recognition of the transition period Y was going through while Miss X and School worked towards building his confidence. It would review the matter at the end of the summer term and contact Miss X again then. Miss X says Y was not going through a transition period and she was not involved in any review.
25. Miss X replied wanting to know whether this meant the Council was expecting her to transport her child to school. She said this was not possible. When the Council confirmed this is what it was suggesting Miss X repeated that she could not take her son to school and so would have to continue to use unsuitable transport. She said she wanted to take her appeal to stage 2 and asked for information about how to do so.
26. Miss X sent in her stage 2 appeal in mid-April 2020. She said:
• The current transport arrangement was not suitable despite some changes the operator had tried to introduce, because of the anxieties it was causing Y and the long journey time. Because of having to pick up and drop off the other child she said it was taking around 90 minutes there and 80 minutes back.
• She said she did not consider the offer of a fuel allowance appropriate and she did not consent to it. She said she would have to travel over 160 miles a day. Also the allowance would not cover the actual fuel costs and so the transport would not be free.
• The Council’s stage 2 appeal did not comply with the Government guidance as it was not heard by an independent panel.
27. She enclosed further supporting information including the following:
• emails from the Headteacher and key worker at Y’s school echoing Miss X’s concerns about how unsettled and anxious Y was on arriving at school, particularly because of the behaviour of the other child in the taxi. They said he felt scared and intimidated which was a cause for concern because of his diagnosed social emotional communication difficulties.
• the letter from the GP
• email exchanges with the transport operator about changes in driver and pick-up times
• her emails to the School with her own observations of Y’s mental state on returning home.
28. The Council did not uphold the appeal. Its stage 2 response in mid-May 2020 was as follows.
• It confirmed it had considered all the information Miss X had provided including the concerns from the Headteacher of School 1 about the current transport arrangement and the effect this was having on Y’s levels of stress and anxiety.
• It recognised Y was experiencing some anxiety but said the information received “from colleagues in the SEND Team informs that his needs are not so exceptional as to warrant the provision of an individual vehicle”.
• It repeated the offer of a fuel allowance and asked Miss X to let the Council know if she wished to take this up.
• It was satisfied the transport provider was willing to work with Miss X and the School to ensure Y could travel safely and make any necessary adaptations to accommodate this.
• It said this was the end of the two-stage appeal process and there was no further right of appeal.
29. Miss X replied asking which colleagues in the SEND Team the officer had spoken to and who at the transport operator would be contacting her to ensure Y could travel safely and stress free. The Council’s reply was that it had corresponded with the team that dealt with Y’s EHC Plan and School 1. It confirmed its view that the arrangements were suitable for Y but said it had offered an alternative option for her to consider as an exceptional discretionary award.

Analysis – was there fault causing injustice?

30. On the available evidence I consider there was some fault in the way the Council reached and explained its decision and in the appeal process.

Transport decision

31. Any transport arrangements the Council makes for Y must be suitable, which means they need to be ‘reasonably stress free’ and enable Y to arrive at school ready to learn. Miss X provided evidence from her own observations and from staff at School 1 who know Y well, that his experiences on the journey to school left him feeling intimidated, anxious and distressed when he arrives. The Council has confirmed it considered this information but decided his needs are not so exceptional as to justify having his own vehicle.
32. The Council has not provided any details of the information it considered in reaching this conclusion either to Miss X or to the Ombudsman. It told the Ombudsman this view was based on information from the SEND Operations Team given verbally but it has not said what it was. In any event the question it should have been considering is whether the transport provided was suitable, not whether there was an exceptional need for a particular form of transport. The Council has confirmed it still does consider the shared taxi transport is suitable, but it has not explained why it considered the evidence from the SEND Team outweighed the evidence Miss X provided. So I consider its decision-making is flawed.
33. Also the Council should not have presented its offer of a fuel allowance in the stage 1 appeal response as a definite decision. If a child qualifies for free transport, as in this case, councils can only expect parents to provide the transport themselves with their consent. The Council did not ask Miss X if she agreed to such an arrangement. However the Council did correct the position later after Miss X objected. It made it clear that this was an offer open to her as an alternative to the arrangement it still considered suitable.

Appeal process

34. The Guidance recommends local authorities adopt a two-stage appeal process with stage 1 being a review by a senior officer and stage 2 being a review by an independent appeal panel.
35. The Council has a two-stage process, but the second stage is a review by an officer more senior than the stage 1 decision-maker, rather than an independent appeal panel. The process therefore departs from the system recommended in the statutory Guidance.
36. At the time of Miss X’s appeal the Council’s system also departed from the Guidance in another way, by not giving appellants any opportunity to make verbal representations.
37. The Ombudsman issued a published Report about another council, reference 19008896, in August 2020 which found fault with the council in that case because:
• its school transport appeals process did not comply with the system recommended in the statutory Guidance; and
• the council had not provided adequate reasons for departing from the Guidance.
38. The Ombudsman has considered the Council’s appeals process in previous investigations and come to the view that the Council has adequately explained its reasons for adopting the two-stage process. However he has found fault with the system before April 2020 because until then there was no opportunity for parents to make representations in person to the second stage decision-maker.
39. In this case Miss X started her appeal before the Council introduced this change in the policy. So when the Council referred her to the policy in the stage 1 appeal response in March 2020 it did not include this provision. When Miss X was in correspondence with the Council in April about how to make a stage 2 appeal, the Council did not advise her about the change in policy. So she was unaware she could ask to speak to the senior officer at stage 2.
40. I consider the Council was at fault in failing to offer Miss X the opportunity to present her case in person at a meeting or over the telephone.
41. I also consider the Council was at fault in failing to explain the right to complain to the Ombudsman at the end of stage 2, as recommended in the Guidance. The Council has already agreed to add this information to its stage 2 responses in relation to another complaint. So I do not need to make any recommendations about this here.

Agreed action

42. In response to my enquiries on the complaint the Council confirmed it would be willing to consider a fresh written appeal from Miss X is she still considers the transport arrangements are unsuitable. This would include offering her the opportunity to speak to the officer considering the appeal, although any meeting would have to take place remotely due to COVID-19 restrictions.
43. The Council says Miss X has not raised any concerns about the transport arrangement since her appeal. Miss X says this is partly because when the Council told her she had ended the appeal process, she understood it would not consider the matter any further. Also during the COVID-19 lockdown periods there were limited occasions when Y was sharing a taxi with the other child. She says when he did, he was still finding it stressful. As Y still appears to experiencing problems, I consider another appeal would be a suitable way to resolve the complaint.
44. The Council has agreed to take the following action:
• Within one month of the final decision on this complaint it will offer Miss X the chance to submit another appeal making it clear she may ask for an appointment to present her case. The Council should provide a proper explanation of its decision, including showing what evidence it has relied on in reaching its conclusion.
• Within three months it will review the sections of its School Transport Policy on fuel allowances. It should make it clear that where a child is eligible for free transport, parents can only be expected to provide the transport themselves where they agree to the arrangement and it does not involve additional costs.

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Final decision

45. I have found the Council was at fault in the way it considered Miss X’s appeal for suitable transport. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman