Summary: Mrs X complains the Council has wrongly refused to provide free school transport for her son and wrongly rejected her appeal against its decision. The Council is at fault as it has not properly considered the impact of her son’s special educational needs on his ability to walk safely to school. This is fault by the Council which has caused injustice. The Council has agreed to reconsider the case.

The complaint

1. The complainant, who I refer to here as Mrs X, says that her son’s special educational needs (SEN) mean he cannot use public transport, or walk to school safely alone or accompanied. She says the Council did not properly consider her evidence when it rejected her application and appeal for school transport.

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What I have investigated

2. I have investigated the Council’s approach to Mrs X’s application for school transport.

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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. 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

5. I spoke to Mrs X and considered information provided by the Council and by Mrs X as well as the relevant legislation. I shared my draft statement with the Council and Mrs X and considered their comments before finalising my decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

School transport legislation and policy

7. Local authorities are required to arrange free, suitable, home to school transport for children of compulsory school age who are ‘eligible’, to their nearest suitable qualifying school (section 508B of the Education Act (“EA”) 1996).
8. Eligible children fall within four categories, set out in Schedule 35 EA 1996. These include children with special educational needs (SEN). If a child has SEN, a disability or mobility problems which means they cannot reasonably be expected to walk to school, then they are an 'eligible child' and are entitled to home to school transport, provided that the local authority has made no suitable arrangements for attendance at a nearer school or boarding accommodation.
9. The Council’s policy on home to school travel for children with SEN and disabilities says the following:
10. ‘In considering whether a child or young person can reasonably be expected to walk to school, the Council will consider their specific needs and determine whether they can walk to school. Wherever possible, the Council expects parents/carers of children and young people to make arrangements for their child to attend school in the same way as for parents/carers of children or young people without SEN or disabilities, as this is an important factor in developing independence, social and life skills.’

What happened

11. Mrs X’s son, B, has SEN and an Education Health and Care Plan (EHCP). His EHCP notes that he has significant developmental delay, resists adult directions and can become distressed if he is prevented from doing what he wants to do. He has no physical disabilities but is non-verbal.
12. Until 2020 B took a bus provided by the Council to school in the mornings. In 2020, when B was seven years old, the family moved house. The new home is 1.1 miles from B’s school. The Council advised Mrs X to reapply for transport. She applied on the basis that B could not use public transport as he is non-verbal and has no sense of danger. She also said she could not walk him to school as she needed to take her daughter to nursery at the same time. Mrs X cannot drive. Mrs X advised B’s father works nights and is not able to safely assist.
13. Her application was not successful. The Council’s letter said: “Based on need, the panel reasonably expects your child to walk with parental support to their nearest qualifying school”. This reflected the decision panel’s notes, which state “reasonable to walk distance with parental support” as a reason for rejection.
14. Mrs X appealed. She provided a letter from B’s school’s pastoral co-ordinator advising that though B is mobile, he is unable to walk long distances. The letter said: “I believe that B would likely go into a crisis and Mum would struggle on her own to manage these behaviours”.
15. The Council rejected the appeal, advising that B’s circumstances “were not sufficiently exceptional to merit a departure from the Council’s policy and that it was reasonable to expect [B] to walk to school with parental support”.
16. In its detailed reasoning it said that although B’s father worked nights “both Mum and Dad are available to walk [B] to school in the mornings”. It added that B’s EHCP “does not identify any physical disabilities or mobility issues” and that he enjoyed swimming lessons. It also pointed out B’s sister is not of statutory school age and Mrs X is not in employment.
17. Mrs X then complained to us. She said B had tantrums if required to walk long distances and she could not manage him. She told me B’s father had been working less due to the Covid-19 pandemic and had been able to drive him to school. On the mornings B’s father was unable to do this due to his work commitments, Mrs X took a taxi to school with B.
18. Mrs X also provided a letter in which her 3-year old daughter’s nursery school had threatened her with a fine or removal from roll for non-attendance.
19. I asked the Council how it had arrived at the conclusion B was able to walk more than a mile to school given the school’s evidence that his SEN and behavioural issues meant he was unable to safely walk long distances. The Council replied with reference to the lack of evidence of any physical disabilities or mobility issues. It said: “The letter from [B]’s school was noted but it was felt this did not contain any medical information or evidence to indicate it would not be possible for him to walk to school with parental support”.
20. The Council confirmed Mrs X’s daughter is not of compulsory school age and that it would not fine Mrs X in relation to her daughter’s non-attendance.
21. In response to my draft decision the Council pointed out Mrs X had not filled out the section of the transport application form which asked for details of challenging behaviour. It said the EHCP’s reference to B’s resistance to adult-led activities had to be taken in context with evidence from the family as a child’s attitude may vary depending on the activity.
22. It also said that in relation to Mr X’s work patterns “neither guidance nor legislation stipulates that night-working in itself would determine eligibility for free transportation”.

Analysis

23. The legislation on school transport makes clear that a child’s SEN, disabilities and mobility problems should be taken into account when considering whether they can reasonably be expected to walk to school.
24. The Council’s policy states that: “Wherever possible, the Council expects parents/carers of children and young people to make arrangements for their child to attend school in the same way as for parents/carers of children or young people without SEN or disabilities”.
25. The Council’s appeal response focuses on the fact B does not have a physical disability. There is no evidence from the information provided that it properly considered B’s SEN, including his lack of sense of danger, resistance to adult directions and behavioural issues, when deciding if it is reasonable for him to walk to school.
26. The Council is correct that Mrs X did not mention B’s challenging behaviour in her application, however once this argument was raised at appeal it should have been properly considered.
27. The Council cited variation in a child’s attitude to adult-led activities as a reason for not taking into account the behavioural issues mentioned in B’s EHCP. However, it quoted B’s ability to swim as evidence that he was capable of walking to school. It entirely rejected the evidence from B’s school that he was not capable. In addition, the Council failed to adequately explain why it considers B’s father is available to escort him to school in the morning given Mrs X’s evidence that Mr X is a night worker. While night working does not create an automatic entitlement to free transport, a parent’s working patterns still need to be considered. There is no evidence to show how the Council reached its conclusion that Mr X was available to take B to school given Mrs X’s evidence to the contrary.
28. This is fault by the Council, which has caused injustice to Mrs X, who has had to take B to school by taxi.
29. I therefore recommended that the Council reconsidered Mrs X’s appeal. I also recommended that if the appeal were successful the Council should consider reimbursing Mrs X for her time and trouble and any expenses she has incurred in the interim such as taxi fares.
30. The Council has agreed that its moderation panel will re-consider the case taking into account B’s challenging behaviour.

Agreed action

31. The Council has agreed that within one month of my decision it will reconvene a panel to reconsider Mrs X’s application.

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Final decision

32. I have completed my investigation with a finding of fault by the Council causing injustice. It has agreed to reconsider the case.

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Investigator's decision on behalf of the Ombudsman