North Somerset Council (20 008 319)

Category : Education > School transport

Decision : Upheld

Decision date : 04 Aug 2021

The Ombudsman's final decision:

Summary: There was fault by the Council in the way it considered an application for school transport made on SEN / mobility grounds. There was also delay in responding to the complaints / appeal so transport was not in place in time for the start of the school year. The Council will apologise, backdate transport payments and pay £100 for the complainant’s time and trouble.

The complaint

  1. Ms X complains on behalf of herself and her two children, whom I shall refer to as Y and X, that the Council failed to put in place appropriate free home to school transport arrangements.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
  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

  1. I have considered information provided by Ms X and the Council including:
    • Transport application, appeal documents and decision letters
    • The Council’s home to school transport policy.
  2. I have considered relevant law and guidance including:
    • The Education Act 1996
    • Home to School Travel and Transport Statutory Guidance
    • The Ombudsman’s guidance:
      1. Focus Report ‘All aboard? Navigating School Transport Issues’ (March 2017)
      2. Guidance on Remedies.
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
  4. Ms 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

The law and relevant guidance

  1. Section 508B of the Education Act 1996 (‘The Act’) says councils must provide free school transport to eligible children. The term 'eligible' means children of compulsory school age who meet certain criteria as set out in Schedule 35B of the Act.
  2. Eligible children fall into four categories:
    • Children with special educational needs (SEN) or a mobility difficulty and cannot reasonably be expected to walk to school where the school is within the statutory walking distance.
    • Children whose route to school is unsafe.
    • Children who live outside the statutory walking distance to school (currently 2 miles of under 8 years and 3 miles if between 8-16 years).
    • Children from low income families.
  3. Councils also have discretion under s.508C of the Act to make provision for non-eligible children where they consider it ‘necessary’ to facilitate the child’s attendance at school.
  4. The Government has issued statutory guidance ‘Home to School travel and transport’ for local authorities’ (‘the Guidance’). Councils must have regard to the Guidance when carrying out their duties. This means Councils can depart from the Guidance, but if they do, they must have a good reason for doing so.
  5. The Guidance says eligibility under SEN / mobility grounds should ‘be assessed on an individual basis to identify their particular travel requirements’ and that the statutory walking distance is not relevant for children eligible due to SEN or mobility reasons.
  6. If the child can physically walk the distance but is unsafe to do so, the Council must consider:
      1. whether the child could reasonably be expected to walk if accompanied and, if so,
      2. whether the child’s parent can reasonably be expected to accompany the child.
  1. When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. 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.
  2. Councils should have in place both complaints and appeals procedures for parents to follow should they have cause for complaint about the service or wish to appeal about the eligibility of their child for travel support. The Government recommends a two-stage review/appeals process for Councils to follow:
    • Stage one of the recommended appeal process is a review by a senior officer who provides a ‘detailed written decision’ setting out:
      1. The nature of the decision reached
      2. How the review was conducted
      3. Information about other agencies consulted as part of the review
      4. The factors considered and the rationale reached.
    • Stage two of the recommended appeal process is review by an independent appeal panel which considers written and verbal representations from both the parent and the officers involved and again provides a detailed written decision. Panel members must be independent of the original decision-making process but do not have to be independent of the Council.

The Council’s home to school transport policy

  1. The Council’s policy says for children of compulsory school age with SEN, a disability of mobility problems eligibility will be assessed on a case-by-case basis with the key issue being whether it is unreasonable to expect them to walk to school.
  2. The policy says the Council does not usually fund transport for children below compulsory school age but if parents consider there are compelling and exceptional reasons for such provision to be made they should contact the SEND travel support team.

What happened

  1. Ms X completed a transport application for Y in June 2020 as Y would be starting reception class in September 2020. Y was not five until Spring 2021. Ms X ticked boxes to confirm that Y had an Education, Health and Care (EHC) plan, visual impairment, speech and language difficulty, learning disabilities, epilepsy and medical needs. In a section to provide additional information Ms X explained Y had no danger awareness, was prone to bolting and excessive meltdowns and had attachment issues. Ms X ticked a box that Y would require a travel safety harness, might refuse to wear or remove the seat belt / harness, and would need specialist support (one to one) to travel.
  2. Ms X chased up the Council on 29 July and also asked if Z’s transport arrangements (a personal travel budget) were to stay the same. Ms X said Z was moving to a different school site and so the mileage to calculate the budget would change.
  3. The Council said Y’s application was still pending but Z’s application would be automatically renewed.
  4. The Council rejected Y’s application in August 2020 on the basis Y lived within the statutory walking distance (1.3 miles) and had no mobility issues. Ms X was able to see the application had been rejected online before she received the decision letter. Ms X reminded the Council it was unlawful to reject the application on distance as Y could not walk the 1.5 miles to school. Ms X said she was happy to provide evidence from Y’s EHC plan and paediatrician and said that Y would be receiving one to one support in a specialist setting.
  5. Ms X chased the Council on 25 August advising Y had no awareness of danger and had to be restrained when accessing the community. Ms X asked if the appeal process had started.
  6. On 1 September the Council advised Ms X a personal travel budget (PTB) for Z had been commissioned.
  7. On 4 September Ms X chased the appeal and said the travel budget for Z had not yet arrived.
  8. On 24 September Ms X complained Z’s budget had not been changed to take account of the new route and her appeal for Y had not been processed.
  9. The Council said it was receiving a high volume of enquiries about school transport and would reply shortly.
  10. On 3 October Ms X sent the Council Y’s EHC plan.
  11. On 8 October the Council sent a decision letter with the outcome of the stage one appeal. It acknowledged Ms X had provided evidence of Y’s needs but said she had not ticked or declared the option that Y had mobility needs / ‘a significant physical mobility’. The Council said to assess eligibility it may seek evidence from parents, schools or other professionals. The Council said Ms X had not submitted this evidence with the online application but it had now obtained and considered Y’s EHC plan and while this supported needs in the education setting this did not satisfy the policy that Y’s needs could not be met by parental accompaniment. The Council therefore refused the stage one appeal on the basis Ms X could accompany Y to school.
  12. The letter went on to note Y’s sibling had a personal travel budget and attended a different school. The Council said under its policy it had discretion to consider providing travel support where siblings in different schools may make accompaniment difficult. The Council said as Ms X had submitted a financial proposal that indicated she could transport both siblings by car a statutory award was not supported but it would provide a discretionary award for Z of a continued PTB with an additional £4.50 per day to support the existing accompaniment backdated to the start of term.
  13. Ms X asked for her complaint to continue to stage two. On 14 October the Council said it would deal with the matter via a stage two appeal panel and Ms X could submit extra evidence about Y.
  14. Ms X said she would submit extra evidence for Y but said this did not address her complaint about Z whose budget had not been paid.
  15. On 18 October Ms X submitted advice from an occupational therapist (OT). The Council said as this was new evidence it would deal with it as a fresh stage one appeal. It said it needed a signed personal travel budget to release Z’s funds.
  16. On 6 November the Council said that based on new evidence from the OT, Y now met the criteria for a statutory award of transport support with immediate effect. It offered a travel budget as an interim measure until transport could be arranged and said it would backdate this to 20 October when it received the new evidence.
  17. The Council acknowledged it had not asked Ms X to sign a physical document for Z. It said a budget had been authorised for four days per week.
  18. Ms X replied that Z had attended school for five days a week since September 2019. She said the previous budget had been four days as when Z stayed with his father a taxi was provided one day. Ms X said this arrangement had stopped. Ms X said the transport was taking her four hours per day and her time was not being compensated. Ms X said the journey to Z’s school had increased by 0.8 miles and she wanted the budget backdated to September 2020.
  19. The Council sent a revised budget for both children which Ms X accepted.
  20. Ms X complained to the Ombudsman that although she was now happy with the travel budget, she felt on reflection Y’s budget should have been backdated to September not October 2020 as she had provided sufficient evidence before October.
  21. The Council told us that there was a delay in dealing with transport applications because it was awaiting Government guidance about travel arrangements during Covid-19 and this was not available until mid-August. It also said it assessed Y under its main policy not under discretionary grounds.

Analysis

  1. Y was not of statutory school age until Easter 2021. The Council assessed Y in 2020 as though she was of statutory school age and made what it describes as a ‘statutory award’. I assume it did so because Y had an EHC plan which required her to attend a setting to receive the support within the Plan. Having decided to apply its main home to school policy to Y the Council should then have followed it.
  2. The application form did have a box to tick stating a child had ‘significant mobility problems’ but it also had other boxes to explain other types of disability or SEN which Ms X ticked as Y did not have physical mobility problems but had other SEN which affected her safety when walking.
  3. The law does not restrict transport awards only to those with physical disabilities, the law also extends to those with SEN or disabilities that may create health and safety issues when walking. There was enough information provided by Ms X on the form for the Council to have identified it needed to assess whether Y could not be expected to walk for health and safety reasons related to her SEN. Ms X had explained Y had no danger awareness, was prone to bolting and excessive meltdowns which made it unsafe for her to walk and indicated Y would require a travel safety harness and would need specialist support (one to one) to travel. There is no evidence the Council took these factors into account or sought evidence to confirm these difficulties.
  4. I find the Council failed to assess Y’s ability to walk, as required by the Guidance and its own policy. The Guidance requires councils to assess children under SEN/mobility grounds on an ‘individual basis to identify their particular transport requirements’. Councils can ask parents to provide evidence they may have but the onus is on the Council to seek evidence necessary to make an assessment. While I acknowledge the statutory guidance does not give advice to Councils about how to assess in the main section, this can be inferred from Annex 2, Recommended Appeal Process which refers to information sought from other departments or agencies consulted. The Ombudsman’s view is that the onus is on councils to seek information from other departments or agencies if they do not have enough information about a child’s SEN to assess their ability to walk or particular transport requirements.
  5. I acknowledge the Council’s views in response to my draft decision that the impact of Covid restricted its capacity to hold engagement events and engage with parents and that it was receiving thousands of calls about transport during July / August 2020 which led it to place a ‘heavy reliance on parents presenting information to help officers’. The Council says Ms X could have provided the EHC plan which can be useful in assessing transport needs and that there was a facility to upload this, however as Ms X did not initially do so, the Council should itself have sought a copy from SEN colleagues if it considered this was needed. The Ombudsman’s view is that the Council is one body and we would consider information held within the Council to be readily available to transport officers.
  6. I find that it was fault of the Council only to backdate Y’s transport award to the date Ms X provided OT advice. If the Council felt more information about why Y’s SEN affected her ability to walk safely was needed it should have asked for it when Ms X first applied and / or sought the advice itself. The Council, not Ms X, is responsible for the delay in obtaining advice necessary to decide the application and it should have backdated the award to September. The Council has told me in response to my draft decision it has done so.
  7. The Council told me the stage one reviewer considered the application for a personal budget to transport both children on the basis Y was not eligible for transport. For the reasons previously given the reviewer should have considered Y’s SEN needs, not just issues with physical mobility. The reviewer should have considered whether Y could indeed walk the distance and if so whether it was reasonable for Ms X to accompany her when she had also to drive Z to school.
  8. While I acknowledge that Summer 2020 was a difficult time for councils due to Covid-19, councils did not need to wait for transport guidance to decide eligibility for transport, the guidance related only to the practicalities of providing transport to those found to be eligible. It also would not apply to parents, like Ms X, who had offered to drive their children themselves if a PTB was provided in lieu of actual transport. I am not therefore persuaded that awaiting Covid-19 guidance explains the delay in deciding Y’s eligibility or calculating Z’s new personal budget although I acknowledge the extremely high volume of communications it was dealing with at that time.
  9. I find delay by the Council in completing Y’s appeal and in confirming Z’s new budget. Ms X applied in June and did not receive confirmation of the travel awards until October / November. Even allowing for Covid-19 disruption this took too long.

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Agreed action

  1. Within four weeks of my final decision the Council will:
    • Apologise to Ms X for the faults identified in this investigation
    • Check that it has backdated Y’s travel award to the start of term in September 2020, and if not do so.
    • Pay Ms X £100 for her time and trouble pursuing the appeal and complaints when these should not have been necessary.
  2. Within two months of my final decision the Council will further review its training to ensure officers are aware of, and follow, Government guidance and the Council’s own policy to consult other agencies and carry out individual assessments where it is necessary to do so to make properly informed decisions about eligibility on SEN / mobility grounds, including when it is appropriate for a parent to accompany a child on the walk to school. The Council indicates it has already developed a new process to obtain information from parents and work is ongoing to embed transport needs into the EHC process.

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Final decision

  1. I have completed my investigation. There was fault by the Council in the way it considered an application for school transport made on SEN / mobility grounds. There was also delay in responding to the complaints / appeal so transport was not in place in time for the start of the school year. I consider the completion of the agreed actions above are a satisfactory remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman

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