Luton Borough Council (20 009 310)

Category : Education > School transport

Decision : Upheld

Decision date : 23 Jul 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to reimburse him for the full cost of transporting his child to and from school. The Council was not at fault in the way it decided not to backdate Mr X’s increased mileage payments. It was at fault for the delay in responding to his request. The Council has agreed to apologise and make a payment to acknowledge the frustration this caused. The Council was also at fault when it conflated its complaints procedure and school transport appeal process. It has agreed to take action to prevent this fault recurring.

The complaint

  1. Mr X complained the Council failed to reimburse him for the full cost of transporting his child to and from school. Since September 2018, the Council has only paid him for the journeys when his child was in the car rather than the full cost of four journeys. It has since changed its policy and will now pay the full cost, but has it refused to reimburse him for the costs incurred previously. This has left Mr X financially out of pocket. It also delayed responding to his request which caused him frustration.

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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. 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 the information provided by Mr X and discussed the complaint with him on the telephone. I have considered the Council’s response to my enquiries.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching the final decision.

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What I found

Relevant law and guidance

  1. The Education Act 1996 defines local authorities’ duties with regard to provision of home to school transport at sections 508B, 508C and Schedule 35B and 35C (as inserted by the Education and Inspections Act 2006).
  2. Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’ for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
  3. The relevant ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have’. ‘Eligible children’ includes children living outside the ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16) and children living within the walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
  4. The Department for Education ‘Home to school travel and transport statutory guidance’ issued in July 2014 advises that children should not be expected to make several changes on public transport resulting in an unreasonably long journey time. It suggests a maximum each way journey of 45 minutes (primary school age) and 75 minutes (secondary). It may be shorter for children with special needs. Arrangements should be safe and ‘reasonably stress free’.
  5. The statutory guidance recommends councils have a clear appeals process for parents who wish to challenge a decision about such matters as the transport arrangements offered.

Mileage allowances

  1. The law and guidance says if the council gets the relevant parental consent (annually or, if a child moves school), it can meet its duty to provide free school transport by paying the parent a mileage allowance to drive their eligible child to school. This would be in place of the council making its own arrangements to transport the child, such as by a taxi or minibus, and the law says it can be for the whole or part of any person’s reasonable travel expense. The statutory guidance does not state how this mileage should be calculated.
  2. In July 2020 we issued a report against Buckinghamshire County Council (19 001 498). We found fault with the council as it only paid for two legs of the journey, at the beginning and end of the school day, rather than for the two return journeys the parent had to make each day. We found that the council had not provided free transport even though the child was eligible for it, as the arrangement was not voluntary since the Council was unable to provide suitable transport itself.

The Council’s Home to School Transport policy

  1. The Council’s home to school transport policy sets out that ‘if you prefer to drive your child you may be eligible to reclaim mileage at the current agreed rate. However mileage will only be provided if:
    • there are no spare seats on a suitable existing transport route
    • public transport would be unsuitable because of the child’s needs or age’.
  2. The Council’s policy sets out that if you are unhappy with a decision made about your child’s transport you can ask for your case to be reviewed. If you are still unhappy with the decision you can apply for the case to be heard by the appeals panel.

What happened

  1. Mr X’s child attends a school for primary age pupils with special educational needs which is over 3 miles from their home address. Due to their special educational needs and home to school distance they are eligible for free home to school transport. In December 2019 Mr X requested support from the Council with transport to school.
  2. In January 2019 Mr X emailed the Council to ask what was happening with his request for school transport for his child. In an internal email an officer noted they had spoken to Mr X about providing a Council minibus. They noted Mr X was not happy that his child would be on transport for over an hour each morning and afternoon and that Mr X had requested a mileage refund which the Council agreed to.
  3. The Council emailed Mr X and advised that mileage or a taxi charge was payable as part of its travel assistance policy within an agreed limit. It asked Mr X for his proposed travel plan. Mr X responded that he would like mileage and for it to commence straightaway. The Council responded that he would receive this through a pre-paid card. This would take some time to set up, so it asked him to keep receipts in the meantime.
  4. In March 2019 Mr X contacted the Council as he had found out he would only receive payment for two legs of the journey, that is when his child was in the car, and not for the four legs he would have to take. He asked for confirmation this was in line with the Council’s policy.
  5. The Council responded that it was a national approach/interpretation of the statutory guidance. Mr X replied that this placed him in an awkward position as the mileage allowance would not cover his fuel costs. He asked for confirmation of how much daily taxi fare was allowed per day.
  6. The Council responded that it did not cover his travel costs but the child’s return journey to and from school. It said if he arranged a taxi, the fare would be reimbursed for the route to and from school. The child would need to be accompanied. The driver would need to be aware of the child’s needs and have a disclosure and barring service check. It asked Mr X to send it quotes for the taxi journey and it would confirm the rate it would support. Mr X thanked the Council for the response.
  7. In August 2020, the Council sent letters to parents encouraging them to use their own transport. It said it would pay for all four legs of the journey. Mr X contacted the Council in late August 2020 to request retrospective payments in the light of this decision. He was asked to put the request in writing, which he did.
  8. Mr X sent a reminder to the Council in early September and again a week later. In late September he received a response that the Council was considering his claim.
  9. In late October 2020 Mr X sent a further email as he had not received a response and then again in early November 2020. The Council responded to Mr X in mid-November 2020 declining his request. It set out that:
    • “Parental reimbursement is entirely discretionary – it is an offer from the council that the parent can choose to accept or not to accept as an alternative to organised travel. Luton is now making an improved offer in order to persuade more parents to take it up.
    • There is no national standard or guidance rate - indeed some councils don’t use detailed mileage but use a limited number of zones.
    • Luton changed its offer with effect from the beginning of the 2020/21 academic year to also reflect the LGO decision to start paying for all four legs.
    • It is also relevant that in the Bucks CC case other failings were demonstrated which do not apply in Luton”.
  10. It explained that in the Ombudsman report about Buckinghamshire we had recommended the Council backdate the payment to the date it was requested rather than the start of the arrangement. It therefore said the Ombudsman ruling could not be used to justify backdating retrospective payments to the start of when a parent chose to take it up in the past.
  11. Mr X requested a final response so he could approach the Ombudsman. The Council responded in early December 2020 declining the claim. It said there was no evidence Mr X had challenged it earlier. Mr X sent screenshots of his evidence from 2019 of him challenging the decision. Mr X remained unhappy and complained to us.

Findings

  1. The Council says the mileage payment arrangement with Mr X was voluntary. Mr X considered the Council’s offer of a journey by minibus too long and so he considered the offer was not suitable. It was open to Mr X to appeal at the time if he considered the Council’s offer was not suitable. The Council also provided Mr X with the option of using a taxi. The evidence suggests Mr X voluntarily chose to transport his child to school.
  2. The Council’s policy, in place at the time, did not set out whether mileage would be paid for two or four legs of a journey. This lack of clarity was fault. The Council has since amended the policy and has now agreed to reimburse Mr X the full cost of the journey, that is for all four legs in line with its revised policy.
  3. Following the revision of its policy, and Mr X’s complaint in 2020, the Council considered whether to backdate the payment at Mr X’s request. It set out its reasoning for not doing so. As it considered relevant matters there is no fault in the way it reached its decision, and I cannot question it.
  4. After it reviewed his request and refused it, the Council did not treat his request as an appeal under the Home to School Transport policy. Instead, it sent a final response and referred Mr X to the Ombudsman as if responding at the final stage of the complaints process. In responding to Mr X’s request the Council has conflated its home to school transport appeals process and its complaints process. This was fault.

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Agreed action

  1. Within one month of the final decision on this complaint the Council has agreed to apologise to Mr X and pay him £100 to acknowledge the frustration caused by the delay in it considering his request for backdating his mileage allowance in 2020.
  2. Within two months of the final decision on this complaint, the Council has agreed to:
    • remind staff within its school transport team of the need to be clear about when to use the complaints procedure and when to use the school transport appeals process; and
    • update its published home to school transport policy to reflect the new mileage payment arrangements and make sure it is available on its website.

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Final decision

  1. I have completed my investigation. There was fault by the Council which caused injustice which it has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman

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