Summary: Mrs X complains about the Council’s decision not to fund all four legs of her journeys to take her child to and from school. She also complains about the way the Council calculated the distance between home and school for Personal Transport Budgets (PTB). The Council was at fault because it did not offer free arranged school transport to Mrs X’s child before she chose to use a PTB. The Council has agreed to apologise, reimburse additional travel costs and make a payment to Mrs X for her time and trouble. The Council will also amend its PTB policy to clarify the voluntary nature of the scheme and highlight this to current PTB users.

The complaint

1. The complainant, who I have called Mrs X, complains about the Council’s decision not to fund all four legs of her journeys taking her child (Child Y) to school through a Personal Transport Budget (PTB). Mrs X also complains the method the Council uses to calculate the distance from home to school is unfair as it does not take account of the actual journey distance that is possible. Mrs X says this is causing financial hardship as she has to cover half of the costs of the transport the Council should be providing for free to Child Y.

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The Ombudsman’s role and powers

2. 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)
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

4. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
5. I have considered the information the Council has provided in response to our enquiries.
6. 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.
7. Mrs 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 guidance

School transport

8. The Education Act 1996 defines councils’ 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).
9. The law says councils 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.
10. Schedule 35C School Travel Schemes, paragraph 3 (5) states that:

“’Travel arrangements’, in relation to an eligible child, include travel arrangements of any description made by any parent of the child only if those arrangements are made by the parent voluntarily.”

11. The law and guidance say on condition the relevant parental consent has been obtained by the council (annually or, if a child moves school), as an alternative arrangement to meet its duty relating to make travel arrangements, it may pay the parent a mileage allowance to drive their eligible child to school. This would be in place of the council arranging for a taxi to transport the child.
12. ‘Home to school travel and transport’ issued by the Department for Education in July 2014 provides statutory guidance by the government (‘the Guidance’).
13. On 11 August 2020, the Department for Education (DfE) issued guidance ‘Transport to school and other places of education: autumn term 2020’ to expand on its plans for the return of all children and young people to places of education following school closures relating to the COVID-19 pandemic. Within this guidance, councils were reminded about how they can meet home to school transport duties in alternative ways.
14. This guidance says:

“Mileage allowances and personal budgets should cover the cost of the parent’s journey to school with their child in the morning, and home again afterwards, and their journey to collect their child in the afternoon, and home again afterwards…

15. Local authorities should be mindful of their duties under the Equality Act 2010 when asking parents to accept alternative offers.”

Council’s school transport policies

16. The Council’s home to school transport policy says children from low-income families are eligible where their home is between 2 and 6 miles from the appropriate school. A child will be assessed under low-income criteria if they are entitled to receive free school meals or where their parents are in receipt of certain benefits.
17. A suitable 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’.
18. Where a child is eligible for transport assistance, the Council provides an appropriate vehicle to collect a child from their home and transport the child to a single point of education. A return journey is the provided at the end of the normal school day.
19. The policy says there is no guarantee that a child with an Education, Health and Care Plan (EHCP) or disability will receive home to school transport. Where a child has an EHCP, their nearest appropriate school will be the closest school to their home via the shortest available walking route that can support their specific needs. Free home to school transport may be provided if the child’s needs may inhibit their ability to walk to and from school or where they cannot access public transport.
20. The Council has a discretionary Personal Transport Budget (PTB) scheme. PTBs are available to children with an EHCP who are eligible for home to school transport. PTBs are monthly cash payments which allow parents and carers to make their own school travel arrangements. They are an alternative to a council provided vehicle. They offer parents and carers more flexibility than mileage payments as they can be used to cover other costs, such as the cost for a sibling’s travel pass or childcare to free up the parent’s time so they can take the eligible child to school.
21. The PTB amount is based on the distance from the school. The Council measures the distance for PTBs based on a straight-line distance (as the crow flies) from home to school, using its own measuring software. If the child lives less than five miles from the school the annual PTB awarded is £2,000 (Band 1); between 5 and 10 miles is £3,000 (Band 2), and for 10 miles and above is £5,000 (Band 3).
22. When the Council considers an application, it first determines whether there is any transport currently in place the child could use. It also asks local transport providers for the cost of transport for the child. If the Council can provide transport for less than the cost of the PTB, the PTB will not be awarded.
23. Parents and carers can ask for a review of the PTB decision if they disagree with the outcome. The final review stage is to the Head of Fair Access who has delegated authority over the school transport budget and is responsible for any decision that results in costs that are greater than necessary.

What happened

24. Child Y has diagnoses of Autism Spectrum Disorder (ASD), challenging oppositional behaviour, Attention Deficit Hyperactivity Disorder (ADHD), dyslexia and severe anxiety. They have associated difficulties with learning and sensory processing issues.
25. Child Y has an Education, Health and Care Plan (EHCP) which sets out the support they need to access education. Child Y attends a school for children and young people with special educational needs which is named in their EHCP and is their nearest appropriate school.
26. On 12 August 2019, Mrs X applied for a Personal Transport Budget (PTB) to pay for driving Child Y to and from school. The Council refused Mrs X’s application on 30 August 2019 because it said it could provide free school transport to Child Y with appropriate reasonable adjustments to meet their needs.
27. Mrs X made a further application for PTB on 27 September 2019 and provided evidence about Child Y’s attendance at school. She explained Child Y had been out of education for some time and was being supported by the school with a reduced timetable. This was to help manage Child Y’s extreme anxiety and distress at attending school. Mrs X asked how the Council-arranged school transport could accommodate Child Y’s needs, given they did not travel to and from school at the same times as the other children using this method of transport.
28. On 22 October 2019, the Council approved Mrs X’s second PTB application. Its records noted that the shortest walking route to the school measured 10.292 miles and the straight-line distance measured 8.566 miles. The Council confirmed payment of the PTB allowance of £3,000 (Band 2) to Mrs X on 6 November 2019.
29. Mrs X asked the Council on 15 November 2019 why it was not paying her the highest band of PTB (£5,000), given the shortest driving distance to the school was 10.83 miles. The Council advised Mrs X the amount of PTB was based on the straight-line distance measured and not the driving distance.
30. On 7 January 2020, the Council responded to Mrs X’s concerns as an appeal against the decision to award Band 2 PTB. The Head of Access confirmed the Council had complied with its policy to award PTB based on the straight-line distance from home to school. The Council explained Mrs X was receiving more through the PTB compared to a mileage allowance which would amount to £1,759.93 a year. The Council considered there had been no fault in its decision in Mrs X’s case and offered to transfer her to mileage payments if she preferred.
31. Mrs X asked the Council on 13 January 2020 for a review of its decision and how it had calculated the mileage costs. The Council explained the following day there was no further right of appeal available and the mileage cost was based on the two journeys when Child Y was in the vehicle to and from school.
32. There was then a period when Child Y did not physically attend school due to the COVID-19 pandemic and associated lockdown. As schools started to reopen, Child Y attended school for two days during July 2020. Mrs X had asked the Council to suspend payment of the PTB allowance during lockdown, which the Council did.
33. On 10 November 2020, Mrs X made a stage two complaint about the Council’s decision to only cover the costs of two journeys under the PTB allowance. On 6 December 2020, Mrs X contacted the Council to ask for its stage two complaint response.
34. The Council responded to Mrs X’s stage two complaint on 8 December 2020. The Council confirmed its agreement with the earlier appeal response Mrs X had received from the Council’s Head of Access in January 2020. The Council explained it had applied its PTB criteria correctly and was able to offer Child Y Council arranged free school transport with appropriate reasonable adjustments if Mrs X remained unhappy with the funds provided by the PTB.
35. Mrs X brought her complaint to us in January 2021 as she remained dissatisfied with the Council’s response.

Analysis

36. In this case, the Council was at fault for not providing free school transport to an eligible child. The Council’s response to our enquiries on the one hand accepts Child Y’s part-time timetable and extreme anxiety means they cannot access the Council-organised free transport, but on the other says it can provide alternative transport support if Mrs X did not wish to continue transporting her child to school. The Council has provided no evidence to show it offered suitable alternative transport for Child Y prior to Mrs X’s application for a PTB in August 2019. The first time the Council suggested it might be able to provide an alternative was in January 2020; five months after Mrs X’s first PTB application. Mrs X’s choice to make use of the PTB scheme was not voluntary.
37. Where a council is unable to arrange suitable school transport for an eligible child, it must ensure any alternative is still free to comply with statutory guidance. Therefore, parents and carers should not incur any additional costs in providing transport to and from school to their child. This is echoed in the DfE guidance issued in August 2020, which states mileage payments and PTBs should cover the costs of all four legs of the journeys from home to school.
38. The discretionary and voluntary nature of the Council’s PTB scheme means there is no statutory requirement for the Council to use the same system for measuring the distance between home and school as its home to school transport policy. It is open to the Council to continue to use the straight-line distance measurement for PTBs, but only where it has made a viable alternative method of free school transport available.
39. In its response to our enquiries, the Council says it has considered the findings in our previous public report (19 001 498) and accepts that it cannot be sure it considered the suitability of a PTB in this case or whether only covering the mileage costs of two legs of the journey was appropriate. It has offered to transfer Mrs X to its mileage payment scheme based on four journey legs per day. It has also offered to reimburse the shortfall Mrs X has had to cover since it started paying the PTB allowance for Child Y in September 2019. It has said it will continue to pay this to Mrs X while the transition to mileage payments takes place. It has also offered to make a payment of £100 in recognition of the time and trouble Mrs X has experienced in making her complaints.
40. The Council’s offer to reimburse costs to date is reasonable as it will resolve the main issue in Mrs X’s case, provided she is willing to accept a transfer to the mileage scheme and to receive mileage payments subject to providing the Council with fuel receipts. It does not however offer Mrs X the same flexibility as the PTB allowance, for which she would not need to provide the Council with fuel receipts. However, I recognise the Council needs to ensure free school transport is cost-efficient and placing Mrs X in the highest PTB band would not meet that objective as it is considerably higher than her actual mileage costs. I consider the Council’s offer of £100 for Mrs X’s time and trouble does not go far enough to remedy the injustice she has experienced, so I have recommended an enhanced remedy for this element of Mrs X’s complaint below.
41. We understand from the Council that Child Y has been making use of Council arranged school transport since October 2021 and Mrs X therefore no longer requires mileage or PTB payments for school transport.
42. The Council’s approach is likely to have affected other parents and carers, whose children are eligible for free school transport but cannot use the council arranged vehicle to get to school. My recommendations below seek to address the injustice caused in Mrs X’s case. The Council also needs to ensure the discretionary and voluntary nature of its PTB policy is explicit to current and potential users of the scheme so they can make an informed decision on whether to make use of the flexibility scheme offers or opt to make use of Council arranged transport.

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Agreed action

43. Within one month of the final decision, the Council will:

• apologise to Mrs X for its handling of her PTB applications and the financial hardship caused by not covering the fill costs of transporting her child to school while no suitable alternative was available;
• reimburse the costs Mrs X incurred in addition to the PTB allowance she received from September 2019;
• pay £200 to Mrs X for her time and trouble;
• amend its PTB policy to include a disclaimer that parents/carers opting to use the scheme (where a suitable council-arranged alternative has been made available) accept it may not cover the full costs involved in transporting the eligible child to and from school;
• ensure where council arranged school transport is not viable, the Council’s mileage payments to parents/carers will cover all four legs of the journey to and from school; and,
• highlight the above disclaimer added to the PTB policy to all current users of the scheme.

44. The Council should provide us with evidence to show it has completed the above recommendations.

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Final decision

45. I have completed my investigation with a finding of fault causing injustice, which the Council has agreed to remedy. The Council will also make amendments to clarify the voluntary and discretionary nature of its PTB scheme.

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Investigator's decision on behalf of the Ombudsman