Summary: Ms A says the Council is at fault in how it considered her daughter’s application for home to school transport. The Ombudsman has found fault in the way the Council considered its decision to refuse transport assistance. To remedy the injustice caused, I recommend that the Council reconsider the application, apologise to her, and pay her £100. I also recommend it review its Home to School Travel Assistance Policy.

The complaint

1. Ms A complains about the Council’s refusal to provide transport assistance for her teenage daughter, B, who has Down’s Syndrome and associated learning difficulties and is unable to walk to school independently because of her special educational needs. She considers that the Council has failed to properly consider B’s transport application in accordance with the statutory guidance and that it is unreasonable and discriminatory for the Council wrong to expect her (or another adult) to have to accompany a child of her daughter’s age to school.

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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. 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)
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

5. I have considered Ms A’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses together with the papers from the appeal panel. I have considered the Council’s Home to School Travel Assistance Policy and secondary school admissions booklet and the Department for Education’s Home to school travel and transport guidance. I have also sent Ms A and the Council a draft decision and considered their comments.

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What I found

The law and the statutory guidance about school transport

Suitable transport for eligible children

6. As set out in the Education Act 1996, councils must make arrangements to provide suitable free school transport to those “eligible” children of statutory school age who:
• attend their nearest suitable school and live further than the statutory walking distance. This is two miles for children aged less than eight years old and three miles for children eight and above;
• are from a low-income family, defined as receiving free school meals or in receipt of the maximum Working Tax Credit. These children are entitled to free school transport if their nearest suitable school is more than two miles away if they are aged eight to eleven;
• 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)
7. Councils also have discretion to make provision for non-eligible children where they consider it “necessary” to facilitate the child’s attendance at school. (Education Act 1996 section 508C)

Statutory Guidance

8. The Government also issued statutory guidance in July 2014 to local education authorities on home to school transport. 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)
• 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 Equality Act 2010

9. Local authorities must comply with the Equality Act 2010. The Equality Act prohibits a local authority from discriminating against someone on the grounds of a “protected characteristic”.
10. The Act also places a legal obligation on the local authorities to comply with the public sector equality duty. This means they must consider how their home to school transport decisions and policies affect people with protected characteristics, and must have due regard to the need to:
• eliminate discrimination against people with protected characteristics;
• promote equality of opportunity between people who have a protected characteristic and those who do not; and
• foster good relations between people who have a protected characteristic and those who do not.

Our Focus Report on School Transport

11. As part of our role, we periodically issue Focus Reports to highlight common or systemic issues we see. These reports share learning from complaints to help councils and care providers make improvements, contribute to public policy debates, and give elected members tools to scrutinise local services.
12. In March 2017, in response to growing numbers of complaints about school transport, we issued a Focus Report entitled “All on board? Navigating school transport issues”.
13. In that report, we highlighted a range of issues. These include that:
• councils must not only consider mobility issues, but also whether a child has non-physical problems associated with their special educational needs or disability, which mean that it is not reasonable for the child to walk to school; and
• councils must also ensure that, in reaching decisions on school transport (whether at application or appeal stage), they properly consider a child and family’s individual circumstances. They must also demonstrate what factors have been considered and taken into account in reaching a decision.

What happened

14. Ms A is a single parent. She has a daughter, B, who has Down’s syndrome and learning difficulties. B has an EHCP. This says that she has little sense of danger and no road safety awareness. She finds climbing stairs difficult, cannot access the community without 1:1 support and struggles with attention and concentration.
15. In March 2019, Ms A applied for school transport for B who was due to start secondary school in September 2019. The application was based on the fact that B had an EHCP and learning difficulties.
16. The Council rejected the application in April 2019. It said that B did not meet the statutory walking distance required for it to provide school transport.
17. In May 2019, Ms A lodged an appeal on the basis that:
• B has Down’s syndrome, urinary incontinence, and challenging behaviour. B also has an EHC plan and would be attending the nearest suitable school. Therefore, B met the eligibility for school transport under Section 35B of the Education Act 1996 for assistance;
• B was unable to walk to school due to her mobility issues and could not walk for any length of time without complaining of aches and pains;
• The school was 0.8 miles away from home, the route was steep and had a major intersection with traffic lights;
• B’s behaviour meant that none of her friends and family could look after her; and
• B’s urinary incontinence meant that she needed access to a toilet quickly which meant walking or waiting for a bus would make her condition worse.
18. Ms A also included a letter from her GP in support of her appeal, which referred to the issues that Ms A set out above in her appeal. It also referred to Ms A’s own health problems which include diabetes, chronic lower back and hip pain, and arthritis in her lower back which make it difficult for her to walk long distances and to supervise B. The GP concluded (and stated in bold lettering) “I would strongly recommend that for [B]’s safety that she is provided transport to and from home from school. This is your responsibility and must be ensured”.
19. The Council rejected the appeal in June 2019 on the basis that:
• B’s SEN and the mobility issues did not prevent her from being able to safely walk to school with the help of an adult;
• B was already walking 0.5 miles to her primary school and the distance to the secondary school would be only 0.3 miles further. It also said it would be in B’s interest to improve her mobility by walking to school;
• It would expect a responsible adult to accompany B if Ms A felt the route was unsuitable for B to travel independently. It felt that with the correct strategies in place, B would be able to make the journey to school. The school could help with this;
• It did not feel the lack of other adults able to look after B was an exceptional circumstance. It was up to Ms A to ensure there was support in place from another responsible adult; and
• It could not provide transport on the basis B was urinary incontinent. This was because using shared transport would not be any quicker than walking to school and would not address the issue.
20. In July 2019, Ms A escalated her appeal to the second stage of the Council’s appeal procedures. The basis of her stage two appeal was that it was not reasonable for the Council to expect B to walk to school or take public transport due to her special needs. She also said the Council had ignored her health problems and that she was already socially isolated which meant that she had no one else who could help with B’s care.
21. The Council responded in August 2019 and acknowledged B’s exceptional needs. However, it considered it had applied its policy correctly. It also said its position that B could walk to school with an adult was reasonable and it could not find any exceptional reasons to offer home to school transport.
22. Ms A complained to the Ombudsman who found fault in the Council’s original decision to refuse transport on the basis of distance. The Ombudsman also found fault in that the Council has departed from the statutory guidance without good reason in not having an appeal panel at the second stage of its appeal process. This meant that Ms A had not been able to make verbal representations in support of her case.
23. However, based on the detailed response to Ms A’s appeal at the first stage of the Council’s appeal procedures, the Ombudsman felt that it was unlikely that had Ms A been able to present her case verbally to an independent panel, it would have come to a different view.
24. In any event, the Council was in the process of introducing a new second stage appeal involving an independent panel. Following the Ombudsman’s finding of fault in respect of the absence of a Stage 2 appeal panel, the Council offered Ms A further second stage appeal to the independent panel. Ms A accepted the offer of a fresh appeal, so the panel’s decision superseded the earlier appeal.
25. Ms A was able to present her case to the panel of three senior officers. Her written appeal refers to the difficulty taking B on a public bus during the COVID-19 outbreak due to her daughter’s very weak immune system and her own health issues. She explained about the difficulty taking B on a public bus due to her behaviour. She explained that B was overweight and unable to walk easily, and that she was very prone to falls while walking. Ms A also provided a letter from B’s physiotherapist, which referred to the hypermobility in B’s joints, her susceptibility to ankle sprains and falls.
26. The notes of the panel hearing are fairly brief but refer to the concerns that Ms A put forward at the first and second stage of the appeal process. The notes referred to B’s EHCP which explains that she has Down’s syndrome and associated developmental and social difficulties. The panel noted that the EHCP said that B’s challenging behaviour was dormant, though she could be stubborn, that she had difficulty climbing stairs and no awareness of danger. It also noted that the EHCP said that B should be encouraged to walk and needed adult support to develop her safety and independence.
27. The panel did not uphold A’s appeal. The decision letter stated that the panel had taken into account B’s eligibility, additional needs, family circumstances and the nature of the route. It said that the panel concluded that the Council’s policy had been applied correctly.
28. The panel understood that B’s journey would involve a direct walk of 16 minutes or a bus journey of approximately 12 minutes. It said it was a reasonable expectation for B to travel this distance to school, with adult support, therefore, the panel did not see an exceptional reason to offer home to school transport.
29. Ms A complained to the Ombudsman.

My assessment

Could B reasonably be expected to walk to school because of mobility problems or because of associated health and safety issues related to her special educational needs or disability?

30. The Council considered the issues referred to in B’s EHCP and the benefits of B being encouraged to walk and concluded that B can walk to school safely if accompanied by an adult.
31. The Council also had a copy of B’s most recent Annual Review from July 2020 and a letter from her paediatric physiotherapist, and the earlier strongly worded letter from B’s GP stating the need to provide transport for B to ensure her safety.
32. However, neither the Stage 1 nor Stage 2 panel decision make any reference to the GP’s letter. Moreover, the Stage 2 decision makes no reference to the physiotherapist’s letter referring to B’s hypermobility and the risk of sprains and falls. In the absence of such references, I am not satisfied that the Council gave weight to the medical evidence when considering whether B could walk to school safely.

Was it reasonable to expect Ms A to accompany B, taking account of a range of factors including B’s age and whether one would normally expect a child of that age to be accompanied?

33. The panel considered that it would be appropriate for B to be accompanied to school.
34. In response to the Ombudsman’s enquiries on another case, the Council said that it considers it appropriate for parents/guardians to accompany their child to school up to the age of 18, the legal age of parental responsibility, if appropriate and necessary. It also referred to section 1.31 of its policy which says:

“Parents/carers are responsible for ensuring their child attends school. This may include making or assisting with travel arrangements to and from school and/or accompanying their child. No dispensation can be made for parents who are working at the time their children travel to and from school, or who have other children to get to school. Parents are expected to make other suitable arrangements for someone else to accompany their children as necessary.”

35. The Council has since stated that it considers all applications on a case-by-case basis with regard to the information available to it.
36. It would not typically be the case for a child of secondary school age to be accompanied and the panel did not set out why it considers it would be reasonable to do so. This was fault and the Council should ensure that its decisions demonstrate how it has taken relevant factors into consideration.
37. Furthermore, in considering whether B could walk if accompanied by an adult, the Council did not properly consider whether Ms A, who is a single parent, could accompany B. Whether or not Ms A might be able to find another family member or friend to assist her was irrelevant to the consideration of this matter. It is for the Council to consider whether Ms A, as B’s parent, can reasonably be expected to accompany her.

Did the Council consider the individual circumstances of the case with reference to the correct test?

38. I note that both at the first stage and the second stage of Ms A’s appeal, the Council referred to there not being “exceptional” reasons to provide transport.
39. Section 4 of the Council’s policy says (my underlining) that travel assistance will be provided where children are “unable to walk to school by reason of their SEN, disability or mobility problem…” or “have any other exceptional circumstances”.
40. However, when considering eligibility for transport assistance for children with SEN or a disability, the Council must consider applications and appeals using the correct test. The correct test when considering its statutory duty under Section 508B of the Act is whether it is reasonable to walk not the inability to walk or whether there are exceptional reasons to provide transport.
41. The Council also determined that the health issues which Ms A had put forward were not exceptional reasons why she could not accompany B, and did not mention the wrist injury that she had suffered trying to safeguard B. However, the correct test here was again whether it was “reasonable” for Ms A to accompany her. (Likewise, the correct test for providing a pupil support escort in such a case is one of reasonableness rather than “impossibility”). This was fault – the Council failed to apply the correct test when considering its statutory duty towards eligible children.

Did the Council only take relevant factors into account?

42. The Council originally rejected B’s application on the basis of distance alone.
43. Section 4.4.2 of the Council’s policy refers to the statutory walking distances when considering transport eligibility for children with SEN/disabilities. Any child who meets the statutory age and distance criteria is eligible for travel assistance, but these criteria are not relevant to the consideration of eligibility on SEN/disability grounds. This is fault - the Council’s policy is at best misleading in this regard.

Did the Council have regard to the Equality Act?

44. There is nothing in the Council’s policy or in the hearing notes to indicate that it has had regard to the Equality Act in considering B’s application for transport.
45. This was fault. When reaching decisions which involve people with protected characteristics, the Council should have regard to its duties under the Equality Act.

Has the Council explained the reasons for its decision clearly and in detail?

46. The statutory guidance recommends that at both stages of the appeal process, the Council provide a detailed written notification of the outcome setting out the nature of the decision, how the decision was reached, who was consulted, what factors were considered, and the rationale for the decision.
47. The Stage 1 decision letter set out the officer’s consideration of the appeal in some detail, though, as set out above, the decision did not reflect the correct test. The Stage 2 decision letter was very brief and gave no explanation of the rationale for the decision. Moreover, the hearing notes do not contain sufficient detail to demonstrate that the decision was properly considered. This was fault.

Agreed action

48. For the reasons set out above I consider that there was fault in the way the Council decided not to provide B with school transport. To remedy the injustice caused the Council has agreed, within four weeks of my decision on this complaint, to:
• reconsider Ms A’s request for home to school transport and address the issues discussed in paragraphs 30 to 47;
• have regard to any additional information Ms A supplies; and
• apologise to Ms A for the fault I have found and the time and trouble she has been put to in pursing her complaint and pay her £100 in recognition of this.
49. It will also, within three months of my decision on this complaint, review its policy to address the concerns discussed in paragraphs 32, 36, 37, 40, 41, 43, 45 and 47.

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Final decision

50. I have closed my investigation into Ms A’s complaint on the basis that the Council has agreed to act on my recommendations.

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Investigator's decision on behalf of the Ombudsman