Summary: Mrs B complained the Council did not provide suitable school transport for her daughter and she missed education. Mrs B also complained the Council used a shoulder strap connector when transporting her daughter which caused her distress. We found fault with the Council for a delay in its complaint handling. However, this delay did not cause Mrs B significant injustice.

The complaint

1. Mrs B complained the Council did not provide suitable school transport for her daughter and she missed education. Mrs B also complained the Council used a shoulder strap connector when transporting her daughter which caused distress.

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What I have investigated

2. I investigated whether the Council provided suitable school transport between September and December 2020.
3. I did not investigate whether the Council failed to provide school transport before September 2020. This was considered in a previous investigation by the Ombudsman.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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

7. I considered:
• Mrs B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
8. Mrs B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Home to school transport

9. A Council must make such travel arrangements as it considers necessary to facilitate an eligible child’ to attend their relevant educational establishment. The Council must provide this free of charge. (The Education Act 1996, chapter 56 part four, section 508B)
10. For arrangements to be suitable, they must be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. (Department of Education, 2014, Home to school travel and transport guidance)
11. The Department for Education’s statutory guidance for home to school transport sets out councils’ duties. These include:
• Councils should ensure that all drivers and escorts taking pupils to and from school and related services have undertaken proper training, and that this is kept up-to-date.
• Councils should have both a complaints and an appeals procedure 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.

Council’s Home to school transport policy

12. The Council has a two-stage review process for parents or carers who wish to challenge a decision about the transport arrangements offered:
• Stage one: The decision is reviewed by a senior officer or by the transport exceptions panel.
• Stage two: An independent appeal panel will review written and verbal representations from both the parent or carer, and officers involved in the case.
13. Pupils, parents, or carers can make an informal complaint about home to school transport to the school transport team. Formal complaints can be made through the Council’s feedback and complaints procedure.

Council’s Complaint procedure

14. The Council has a two-stage complaint procedure.
15. Stage 1: The Council will acknowledge receipt of the complaint within three working days. It will provide a written response within 20 working days. If it cannot do this, it can extend the timescale if it lets the complainant know.
16. Stage 2: Once it receives the request, the Council’s Deputy Monitoring Officer will consider whether a stage 2 review is appropriate. It will write to the complainant within 5 working days to tell them how it is going to proceed. If accepted, the Deputy Monitoring Officer will conduct a stage 2 review and aim to send the complainant a response within 20 working days. If it cannot, it will let the complainant know and give a new timescale.

What happened

17. Mrs B’s has a daughter, D. D has global development delay. She has a learning disability and presents with challenging behaviour. In February 2020, D started to attend School 1.
18. An occupational therapist assessed D’s access to school transport and provided recommendations. These included:
• Develop a behavioural support plan
• Develop a social story about D travelling in a vehicle
• Escorts should be trained, experienced and familiar
• The driver should be trained in D’s behavioural support plan
• D could use fidget toys and listen to audiobooks
• Assess the use of a harness
• Assess the suitability of the vehicle
• The transport crew should stop the journey if D is distressed
• No force should be used to transition D into and out of a vehicle
19. The Council considered information provided by the occupational therapist, School 1, the child and adolescent mental health service (CAMHS) and its special educational needs team. This included a behaviour profile and behaviour support plan. In May 2020, the Council completed an assessment of D’s school transport needs. It identified strategies to support D to access transport safely. These included keeping changes to the crew and route to a minimum and the use of a harness.
20. The Council identified a transport provider in August 2020. The transport provider selected a core crew to deliver the contract. The Council trained the transport provider and the core crew. It explained D’s needs and the plan for driving her to and from school. The Council assessed the vehicle the crew were going to use. The Council invited Mr and Mrs B to attend the training session; they chose not to.
21. The Council, the proposed driver and passenger assistant met with Mrs B and D at their home. D was introduced to the crew, vehicle and harness that would be used to take her to and from school. The Council adjusted her harness to make sure it fitted correctly. Mrs B told the Council if the crew felt D was too anxious to travel, she would take D herself and charge the Council £300.
22. The driver changed the day before the school transport began. The new driver phoned Mr and Mrs B to see if he could visit them at home that evening. Mr and Mrs B could not see him that evening.
23. Mrs B reported that between September and October half-term, D’s home to school transport was successful.
24. As part of the contract, the transport provider had to give the Council weekly updates about the journey to and from school. In October 2020, the transport provider raised concerns with the Council because D was taking her arms out of the harness and occasionally taking her clothes off. Mrs B also raised concerns about D taking her clothes off. Following a conversation with Mr B, the Council decided the transport provider could use a shoulder strap connector to prevent this. A shoulder strap connector works with a harness to restrain and support children when travelling in a vehicle.
25. Mrs B raised concerns with the Council about the use of the shoulder strap connector. She said the Council should be following the occupational therapist’s recommendations and she would agree to its use if it was endorsed by the occupational therapist. The Council discussed the use of the strap with Mrs B and agreed to stop using it. However, the next time the crew took D to school, she was not secure in the harness without the strap. The Council decided the transport provider needed to use the strap to ensure D’s safety. Mrs B objected to the use of the strap. She said she wanted the use of the strap assessed by an occupational therapist. The Council said it would review its transport assessment for D but meanwhile the strap would be used as a safety measure.
26. Mrs B made a stage one school transport appeal against the use of the shoulder strap connector. She told the Council the strap was causing D undue stress and anxiety. She said D’s behaviour worsened when the strap was used. The Council responded to Mrs B. It said the strap was safe to use, and its removal would put D at risk. It said there would be a case review meeting where the provision in place for D would be discussed. It told her if she was unhappy, she could make a formal complaint.
27. In November 2020, the transport provider raised concerns about the time it was taking for D to aboard and alight the vehicle. On one occasion, the transport provider and School 1 tried for two hours to persuade D to exit the vehicle without success and had to return D home.
28. The Council held a meeting to review D’s school transport. The Council’s transport and special educational needs departments attended as did School 1. Mr and Mrs B chose not to attend. The attendees discussed strategies to support D to access school transport. They recognised D did not like using the harness but noted the transport provider would not transport her without it because of the safety risk. The Council updated D’s school transport assessment with detailed instructions for those involved in transporting her to school. The plan gave the transport provider detailed advice about what to do if D would not alight or board the vehicle.
29. In November 2020, Mrs B asked the Council for a stage two appeal by the independent appeal panel. She chased the Council for a response in December 2020.
30. D’s placement at School 1 ended in December 2020.

Complaint

31. In December 2020, Mrs B made a formal complaint about the use of the shoulder strap connector and the Council’s failure to provide school transport. The Council told Mrs B it was considering how best to address her complaint and would update her once it had decided.
32. The Council contacted Mrs B in January 2021. It explained the independent appeal panel could not make health and safety decisions or consider the quality of the service provided. Because of this, it told her it would consider her complaint using the complaints procedure.
33. Mrs B complained the Council had allowed her to make a stage one and two transport appeal when this was not the right procedure to challenge the use of the shoulder strap connector. She told the Council it should log her complaint about the use of the strap as the date she made her stage one school transport appeal, October 2020. She said the Council should register her complaint about it not providing school transport as being made in December 2020. She said she wanted her complaints considered separately.
34. In January 2021, the Council advised Mrs B:
• It provided D with transport every school day from September 2020. It recognised there were incidences when D refused the school transport. It agreed to pay her a one-off milage payment for collecting D from School 1 in December 2020.
• The shoulder strap connector was safe and its removal would have put D at risk during transportation.
• It was with regret that it did not consider her November 2020 appeal request sooner. It explained this was because of demand on the service due to COVID-19. It apologised for not updating her sooner.
• It would consider the wording of its 2021/22 school transport policy to ensure it was clear about complaints and appeals.
• It would not change the date it registered her complaints but would note she raised the matters earlier.
35. The Council provided complaint responses in February 2021.
• It apologised that its complaint investigations took longer than expected.
• It reiterated that it provided school transport for D every day from September 2020 to the end of her placement at School 1 in December 2020. It understood there were times when D did not want to alight or board the vehicle and Mr or Mrs B had to transport her. It said although it did not pay milage when children refused transport, it had offered a one-off payment for a failed journey in December 2020.
• It said it provided safe transport for D and did everything it could for this to be stress-free for her. It found nothing to suggest it was not in the best interests of D, the crew and other road users to use the shoulder strap connector.
36. The Council made service improvements. It reviewed its home to school transport policy to ensure it was clear to pupils, parents, and carers whether they should appeal or complain about a particular school transport issue.

Analysis

37. The Council provided suitable school transport for D between September and December 2020. It used the information available to assess D’s transport needs, trained those transporting D, and monitored the provision daily. When concerns were raised, the Council worked with the transport provider, Mr and Mrs B, and School 1 D to resolve them. The Council went to considerable lengths to support D to access school transport. Ultimately, the Council could not compel D to use the transport.
38. Mr and Mrs B did not always agree with the measures put in place by the Council. Mr and Mrs B felt the Council did not adopt all the recommendations in the occupational therapist report and were unhappy the Council allowed the use of a shoulder strap connector. The Council took account of the available information and used its professional judgement to decide the best way to transport D to and from school. It adopted many of the occupational therapist’s recommendations, (paragraphs 19, 20, 21 and 26). It responded promptly to safety concerns and decided it was in D’s best interest to use the shoulder strap connector. I have not seen any evidence of fault in how the Council reached its decisions and so I cannot question their merits.
39. There was some confusion about how Mrs B could challenge the Council’s decision to use a shoulder strap connector. The Council was initially unsure whether this should be considered through a transport appeal or the formal complaint procedure. In January 2021 the Council confirmed it would use its complaint procedure rather than an independent appeal panel to investigate her concerns. Consequently, there was a delay with the Council starting its complaint investigation and this was fault. I do not consider the fault to have caused Mrs B significant injustice because the Council was in contact with her throughout the period of delay.

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Agreed action

40. Within two months of the final decision, the Council will provide those involved in school transport appeals and the complaints procedure with guidance to help them distinguish between an appealable issue and a complaint.
41. The Council will provide the Ombudsman with evidence this action has been completed.

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Final decision

42. I have completed my investigation. There was fault by the Council but this did not cause Mrs B significant injustice.

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Parts of the complaint that I did not investigate

43. I did not investigate whether the Council failed to provide school transport prior to September 2020. This was considered in a previous investigation.

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Investigator's decision on behalf of the Ombudsman