Summary: Miss X complained about the Council's decision that her child was not eligible for free school transport. Miss X said this meant she had to pay for transport. The Council was at fault for failing to properly consider whether it was appropriate for Miss X to accompany her child. The Council has agreed to reconsider its decision and amend its policy.

The complaint

1. Miss X complained about the Council's decision that her child was not eligible for free school transport. She also complained about the time the Council took to make its decision and consider her first appeal.
2. Miss X said this has caused her significant frustration and means she is having to pay for her child’s transport to school.

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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 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)
4. 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)
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 have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• council policies, relevant law and guidance, the Ombudsman’s guidance on remedies.
7. 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

Relevant law and guidance

8. A child with special educational needs (SEN) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. Councils are required to make travel arrangements and provide free transport for “eligible children” of compulsory school age to attend their nearest suitable school. Eligible children include children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their SEN, disability or mobility problems. For children with SEN, eligibility should be assessed on an individual basis.
10. The home-to-school travel and transport statutory guidance (July 2014) says when deciding whether a child with SEN is eligible, councils should consider:
• whether the child can reasonably be expected to walk if accompanied; and
• whether the child’s parent can reasonably be expected to accompany them.
11. When deciding if a parent can reasonably be expected to accompany a child with SEN, councils should consider a ‘range of factors’. This includes the age of the child and whether children of that age would ordinarily be accompanied.
12. The guidance says parents are normally expected to accompany a child where needed, unless there is a ‘good reason’ why it is not reasonable.
13. The Council's policy on school transport sets out how it considers whether to award free transport to children with SEN, disabilities or mobility issues. The policy says it will assess if the child can walk to school ‘even if accompanied’.
14. For children without SEN, the policy says parents are responsible for arranging for them to be accompanied when walking if the parents think the child’s needs, age or ability make accompaniment necessary. The Council will not provide transport because parents have not made suitable arrangements, unless ‘exceptional circumstances’ apply. Circumstances include where the parents cannot accompany a child due to their own disability.
15. The policy says when the Council receives an application from the parent of a child with SEN who feels their child cannot safely walk to school, even if accompanied, it will carry out an assessment. The assessment will consider the child’s needs and the safety of the school route. The Council's application form does not include a section for parents to explain about their ability to accompany their child.
16. The policy does not have a timescale for considering applications for school transport. It has a two-stage appeal process and says it will respond to requests for a stage one appeal within 20 working days. It will respond to stage two appeal requests within 40 working days.

What happened

17. Miss X’s child, Y, has conditions affecting their language and understanding development. Y does not have any mobility issues, but Miss X says Y’s conditions mean Y has little to no traffic awareness and the length of journey would affect their ability to participate in school. Miss X lives within walking distance of the school.
18. Miss X applied for free school transport in March 2020. The Council sent Miss X its decision four days later. A Council risk assessor considered the safety of the route and the used Y’s EHCP to assess the effect of Y’s conditions on their ability to walk safely. The assessor decided Y was not eligible for transport as they could walk the route when accompanied. There is no evidence the Council considered whether it was reasonable for Y to have to walk accompanied or if Miss X could accompany Y.
19. The Council says its records show Miss X read the decision the day it was sent. Miss X says she did not receive the decision but accepts it may have been due to email issues. She contacted the Council for an update in late May and the Council verbally told her its decision. Miss X asked for an appeal and the Council agreed to hold one.
20. Miss X sent her appeal the following day. She reiterated her concerns that Y’s needs meant they could not travel safely. She also told the Council she would struggle to accompany Y as she could not drive and is a single parent. She said she had a part-time job and another child to care for.
21. Council records show it considered whether Miss X’s personal situation constituted ‘exceptional circumstances’ when deciding whether it was reasonable for her to accompany Y.
22. The Council asked Y’s primary school if it had any further comments or information on Y’s needs. It had nothing to add.
23. The Council sent Miss X the outcome of the stage one appeal in late July. It apologised for the delay in sending her the outcome but did not uphold her appeal. It explained what it based its decision on, including Miss X’s original application, her appeal documents and its contact with Y’s school. It said it considered Miss X could accompany Y. It did not address whether it was reasonable to expect Miss X to accompany Y, given Y’s age.
24. The following day, Miss X asked for a stage 2 appeal. Over the next two weeks, Miss X asked for clarification from the Council and sent comments in response.
25. In August 2020, the Council sent Miss X the outcome of the stage 2 appeal. It said it considered the previous documents and Miss X’s new comments but did not uphold her appeal. The Council confirmed that when considering applications for school transport, it assumes a parent can accompany their child to school. It said Miss X had not provided evidence of exceptional circumstances that would make it unreasonable for her to accompany Y.
26. The Council later agreed to allow Miss X to pay for a vacant seat on a specialist bus service to take Y from her home to her school.

My findings

Accompaniment

27. The Ombudsman cannot question a Council's decision where it is made without fault. The statutory guidance says councils must consider whether a child with SEN can reasonably be expected to walk to school if accompanied and whether the parent can reasonably be expected to accompany the child. It follows that decisions should be made on a case-by-case basis.
28. The Council's policy on school transport for children with SEN, disabilities and mobility issues assumes they will be accompanied. This does not comply with the statutory guidance and was fault.
29. I am satisfied the Council properly considered whether Y could reasonably be expected to walk to school if accompanied. It considered the evidence Miss X provided, including Y’s EHC plan and contacted Y’s school for more information.
30. However, the Council did not correctly consider whether it was reasonable for Miss X to accompany Y. Its appeal notes show it considered whether Miss X had ‘exceptional’ reasons for being unable to accompany Y. The statutory guidance states parents of children with SEN should be expected to accompany a child unless there are ‘good’ reasons why it would be unreasonable for them to do so. The Council applied a higher threshold than the statutory guidance recommends.
31. In addition, the guidance says councils must consider a range of factors including the age of the child and whether children of that age are ordinarily accompanied. Y was in Year 7 when Miss X made the application. At that age, children are increasingly unlikely to be accompanied to school. The Council's flawed assessment of Miss X’s circumstances and failure to consider Y’s age was fault and calls its decision into question.

Appeal

32. Miss X says the Council took too long to respond to her application for school transport. However, she accepts email issues may have prevented her seeing the decision when the Council sent it. In any event, this did not cause Miss X a significant personal injustice as the Council still allowed her to appeal.
33. The Council accepts it took too long to respond to Miss X’s stage one appeal. Its policy states it will respond in 20 working days, but it took over 40. This was fault and delayed Miss X’s right for a second appeal. The Council apologised in its appeal decision letter. I consider this a satisfactory remedy for the delay.
34. The Council responded to Miss X’s stage 2 appeal within its timescales so was not at fault.

Agreed action

35. Within one month of the date of my final decision, the Council will:
• reconsider Miss X’s appeal, ensuring it considers whether it is reasonable to expect Miss X to accompany Y, taking into account her personal circumstances and Y’s age; and
• if the Council reverses its decision, it should reimburse Miss X the costs of the transport she has paid since its original decision.
36. Within three months of the date of my final decision, the Council will:
• amend its policy on accompaniment to reflect the statutory guidance;
• ensure its application process provides parents of children with SEN, disabilities or mobility issues with an opportunity to submit information on their ability to accompany their child; and
• remind staff they must properly consider whether a parent can reasonably be expected to accompany their child with SEN.

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Final decision

37. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman