Summary: Mrs B complains that the Council did not properly assess the risk of her son travelling without a passenger assistant when providing transport for him to his new school. The Ombudsman has found no fault in the way the Council considered the transport provision for Mrs B’s son apart from the fact that it did not offer her the chance to make verbal representations to the appeal panel. However, on the balance of probability, we do not consider that this is likely to have affected its decision not to provide a passenger assistant.

The complaint

1. Mrs B complains that the Council did not undertake a proper risk assessment to determine the needs of her son, C, who has severe disabilities, when making the journey to the new special school he has attended since September 2020. She says it refused to provide a passenger assistant to accompany C and did not do so until an incident occurred in November 2020.
2. As a result, she had to accompany C to school for the first six to eight weeks, and then pay £500 for a passenger assistant to accompany C for one month.
3. She says this has caused her considerable stress and anxiety and has affected the family financially as they had to make cutbacks to pay the support worker. She has also been put to time and trouble appealing against the Council’s decision and considers that this contributed to the worsening of her existing medical conditions.
4. She considers that the Council should reimburse the costs that she incurred in ensuring that C could travel safely to school and ensure that it undertakes appropriate risk assessments in future.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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

8. I have considered Mrs B’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses together with the appeal papers. I have considered the Council’s Application for Free School Transport-Guidance Notes, the Parents’ Guide to Education in Shropshire, information on school transport on the SEND local offer pages on the Council’s website, the Department for Education’s Home to school travel and transport guidance, and the then Department for Education and Skills Guidance on Home to school travel for pupils requiring special arrangements. I have also sent Mrs B and the Council a draft decision and invited their comments.

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What I found

Relevant law and guidance

Special Educational Needs

9. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

Suitable transport for eligible children

10. Councils must make arrangements to provide suitable free school transport to those “eligible” children of statutory school age who cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs or disability. Eligibility for such children should be assessed on an individual basis to identify their particular transport requirements. Usual transport requirements (e.g., the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to special educational needs and/or disability. (Education Act 1996 section 508B and Schedule 35B)
11. The Government issued statutory guidance on home to school transport in July 2014. This says when determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
12. The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 18)
13. For a council’s school transport 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. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 35)

The appeal process

14. The statutory guidance recommends that 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.
15. The guidance says a parent can challenge a decision on the home to school travel application on the basis of entitlement, distance measurement, route safety and consideration of exceptional circumstances. The parent can challenge the officer’s decision and request a review by an appeal panel.
16. 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 must be independent of the original decision-making process but do not have to be independent of the council.

Guidance on Home to school travel for pupils requiring special arrangements

17. The Government issued non-statutory guidance to Local Authorities in November 2004. This recommends that:
• “…risk assessments are used to identify the least restrictive form of travel for each individual pupil to meet his or her particular needs
• the travel needs of each eligible pupil are reviewed at least annually to ensure that provision is safe and appropriate. Pupils should always travel using mainstream travel arrangements and local travel schemes where they can
• LAs introduce a travel co-ordinator responsible for assessment of risk, determining appropriate travel solutions, commissioning and procuring services, route planning and review, training and quality assurance
• when special arrangements are made for home to school travel, parents and carers are provided with clear information and, for some pupils, additional arrangements are made to link with parents and school staff…”

The Council’s Risk Assessment Process

18. The Council employs a Risk Assessment Officer who is supported by the Council’s health and safety team.
19. Individual risk assessments are updated every 2 years by the Risk Assessment Officer. The Council also sends out support plans to parents every 12 months to ensure it covers any changes for an individual. The support plans were designed in collaboration with the largest special needs school in the county and with parental feedback.
20. The Risk Assessment Officer is scheduled to travel on all Council SEN routes every 12 months where possible. Where instances arise that require a review, these are done as and when needed.

What happened

21. Mrs B has a son, C, with complex needs. He has learning difficulties, social and communication difficulties, ASD, ADHD, anxiety, and sleep disorders. He has little sense of danger, no road safety awareness and needs 24-hour adult supervision. C has an EHCP and has attended a special school since 2013, travelling over 20 miles to the school on a minibus with other children.
22. The Council’s Risk Assessment Officer Passenger first assessed C’s needs in 2013 and undertook reassessments most years. C has not previously been assessed as needing a passenger assistant to accompany him and no passenger assistant has been requested or provided for him. There was, however, a passenger assistant on the minibus for another child.
23. C was due to move to secondary school in September 2020. It was agreed in the Annual Review of his EHCP that he would move to a new special school. This would be around 31 miles away, in the opposite direction to his previous school.
24. C would continue to need transport to school, so Mrs B filled in the Council’s “My Travel Support Form” to provide information to help assess C’s travel needs. Mrs B said that C would need to be supervised at all times, particularly when getting on and off the transport. She said that C travelled well provided that he had his own space around him to separate him from other children. She also said that C would need a support worker to accompany him to support the driver.
25. The Risk Assessment Officer undertook a Passenger Needs Assessment for C. She concluded that C would not need a passenger assistant to travel to his new school.
26. Mrs B strongly disagreed with this assessment. She pointed out that C had a very complex profile and needed 2:1 supervision in other settings.
27. An officer considered Mrs B’s first stage appeal. She explained that the Council would generally provide passenger assistants in cases of medical need and that C had been assessed as not requesting an assistant. She noted that a passenger assistant had been present in C’s minibus for another child. She said she had viewed C’s EHCP and checked with the Council’s SEN Team but had not identified anything which would require C to have a passenger assistant. Although C had 2:1 support from other agencies, he had always travelled well on transport and had not required 2:1 support for this.
28. She recognised Mrs B’s concerns about C having to travel to a new school by himself but explained that she could not overturn the previous decision. She said the Council would monitor the situation.
29. Mrs B asked for the Transport Appeals Panel to hear C’s case. The panel is comprised of officers not involved in the original decision. Mrs B put her case in writing but was not invited to put her case to the panel in person, as this was not the Council’s practice at the time.
30. Mrs B provided supporting information from a range of professionals. C’s consultant paediatrician noted that C required 2:1 support in other settings and expressed some concern over C’s safety as his behaviours could be unpredictable. Mrs B also provided details of an incident from a couple of years earlier where C had bitten her while waiting for a local bus.
31. The panel considered C’s case but did not consider that it would be necessary to provide a passenger assistant for him.
32. Mrs B travelled with C for first six to eight weeks. Initially she travelled both morning and afternoon but latterly only the morning. She then paid around £500 for a support worker to accompany C for one month. When C arrived at school, a teacher would collect him from the vehicle.
33. Mrs B complained to the Ombudsman. In the meantime, in November 2020, she contacted the Council and provided information from a book containing comments from herself and the school on C’s behaviour, and about an incident in January 2018 in which C’s consultant referred to “one episode of impaired weakness, possibly a seizure”. She also explained that there were two recent incidents where C had removed his trousers while travelling.
34. The Council did not feel that the information on C’s behaviour raised cause for concern. It noted that there was no diagnosis of epilepsy and there had been no repeat of the “seizure” since January 2018 so it did not consider that an assistant was needed on these grounds. However, it felt that the removal of clothing could put the driver in a vulnerable position. In view of this new information, the Council arranged for a full-time passenger assistant from November 2020, and to review the situation in Summer 2021. The Council continues to provide an assistant.

My assessment

35. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Council’s officers. Instead, we focus on the process by which the decision was made. I have therefore reviewed the way the Council has considered Mrs B’s request for transport for C.

Risk assessment

36. Mrs B has complained that the Council did not undertake a proper risk assessment. She feels that the risk assessment was not specific enough with regard to C’s conditions and needs.
37. She says the Risk Assessment Officer had travelled on occasion on the minibus with C but did not speak with the passenger assistant who could have explained that C would run around and throw things on the minibus. She says that instead the officer only discussed C’s needs with the owner of the taxi company, who had not been on the minibus. She says she had not previously complained about the lack of a passenger assistant for C because there was a passenger assistant (for another child) on the minibus and she had had confidence that she could sort things out.
38. She says that C had been travelling the same route to the same school since he was four years old. He had had the same driver and support worker (albeit for another child) and he was familiar with the route. Although the support worker was not provided for C, he would sit next to her every journey and she would hold his hand on exiting the vehicle. She does not feel that the risk assessment took proper account of the risk from C travelling on a new route without a passenger assistant. She considers that the Council should carry out relevant assessments of all home to school transport applications.
39. The Council has explained that the Risk Assessment Officer had observed C when travelling, most recently in January 2020, and had spoken with the transport operator. The transport operator had carried out some of the driving himself during that time and he also spoke to the regular driver and passenger assistant on the Council’s behalf. He confirmed that there were no issues with C traveling and none had been reported since 2013. C’s risk assessment for home to school transport has always reflected that a passenger assistant was not required for him. There were no reported issues of C running off at school or displaying high anxiety whilst travelling.
40. The officer took into account C’s conditions and severe communication difficulties. She also took into account the information that Mrs B had provided, including her concerns about C’s lack of risk awareness. She noted the need to supervise him and escort him into school, and the need to activate door and window locks.
41. I appreciate that Mrs B disagrees with the conclusions of the risk assessment. However, it seems to me that the officer made appropriate enquiries and took into account all relevant evidence. It is not therefore for the Ombudsman to question the merits of the decision that the officer reached.

Appeal

42. Mrs B disagrees with the panel’s decision not to uphold her appeal. She considers that the panel minutes and decision suggest that the evidence used was selective when reaching the decision.
43. The notes of the panel hearing set out the background to the case. The panel was aware that C had travelled to school in a shared minibus with a passenger assistant for another child since 2013 and was now moving to a single company taxi to a new school. The panel noted that no concerns had previously been raised about C travelling and that a passenger assistant had not previously been requested or required.
44. The panel noted Mrs B’s concerns, as set out in the support plan used to create the Transport Risk Assessment. The panel noted that C required supervision when transferring to and from the vehicle, but that he generally travelled well. They noted that the Risk Assessment Officer had travelled with C on several occasions previously and that the previous transport operator had not reported any problems with C running off or displaying high anxiety while traveling. The panel noted the incident where C had been waiting for a bus but felt that children may act very differently with a parent compared with non-family members. Moreover, C would not have to wait for transport in such a way.
45. The panel had regard to Mrs B’s submission and the supporting documentation from professionals which related to a wide range of activities. The panel noted in particular the information on how C travelled, which indicated that generally he travelled well but that windows and doors needed to be locked and that he needed supervising when entering and exiting the vehicle.
46. The panel the accepted that C might have some anxiety in relation to the new school. However, as C’s high level of needs and anxiety had not previously affected his ability to travel, in the panel’s judgement it would not be necessary to provide an assistant.
47. I appreciate that Mrs B disagrees with the panel’s decision and considers that it was selective in its views. However, the panel’s task was to consider whether C needed a passenger assistant when travelling. The panel noted that C generally travelled well and that there had been no reported problems during travel. In reaching its decision, the panel chose to place considerable weight on the evidence of how C travelled. It was for the panel to decide what weight to give to the individual pieces of evidence provided. It is not for the Ombudsman to question the panel’s judgement that C’s travel history suggested that he would not need an assistant.

Appeal process

48. The statutory guidance recommends that local authorities adopt a two-stage appeals process with stage 1 being a review by a senior officer and stage 2 being a review by an independent appeal panel. The statutory guidance says that the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. The guidance says parents should be able to present their case and there are good reasons for this including: transparency; natural justice and the opportunity for all parties to ask questions.
49. In a separate complaint, the Ombudsman found that the Council’s appeal process did not allow verbal representations. The Council has since changed its policy so as to allow parents and carers the opportunity to present their case in person.
50. At the time of Mrs B’s appeal, the Council’s second stage appeal only allowed for written representations. Mrs B was therefore not given the opportunity to attend the hearing and put her arguments to the panel in person. This was fault. However, there was a wide range of information available to the panel on which to reach its judgement. On balance, I do not consider it likely that the outcome would have been different had Mrs B been able to put her case in person to the panel.

Transport provision demonstrated risk assessment wrong

51. Mrs B feels that the fact that the Council has now provided transport shows that the original decision was wrong.
52. I am afraid that I do not consider that to be the case. C had previously travelled since 2013 without incident. The panel concluded on that basis that the risks for C travelling alone were low.
53. In the event, two incidents occurred where C removed his trousers and the Council responded to this by providing a transport assistant. Given that this had not previously occurred, I do not consider that this was foreseeable, or that this meant that the decision not to provide a transport assistant was wrong.

Training

54. Mrs B considers that the Council should ensure that passenger assistants receive appropriate training with regard to disability and SEN as required by section 44 of the School Transport statutory guidance.
55. The Council does not require external transport providers to undertake statutory training. However, all drivers have to undertake safeguarding training. The Council also offers Challenging Behaviour, First Aid, Autism Awareness, Disability Awareness, and PATS to all operators and many attend. However, this is not mandatory unless the Council considers specific training to be necessary to meet the needs of individual passengers. The Council considers that it has regard for and complies with section 44.
56. It seems to me that the Council has due regard to the guidance in that it requires mandatory training where individual passengers require specific support.

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Final decision

57. I have closed my investigation because I do not consider it likely that the failure to offer Mrs B the chance to speak to the panel affected the panel’s decision.

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Investigator's decision on behalf of the Ombudsman