Summary: We will not investigate Mrs X’s complaint about her daughter’s post-16 transport. This is because there is not enough evidence of fault causing injustice.

The complaint

1. The complainant, whom I shall call Mrs X, complains about the post-16 transport offered to her daughter (Y). Mrs X is unhappy the Council has changed the operator used to provide Y’s transport. Mrs X wants the Council to use the same operator which previously took Y to school. The Council has so far refused and says it will not consider her appeal at stage 2 of its appeals process.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• we cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

4. I considered Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

5. The Council previously provided Y with free transport to school. Y has an Education, Health and Care Plan. The Council has agreed to provide Y with post-16 transport. Mrs X is unhappy because the Council is using a different operator. Mrs X says because of Y’s special needs, she needs routine and cannot travel with an unfamiliar person. Mrs X says the arrangements the Council have offered will not allow Y to travel to college “stress free”. Mrs X wants the Council to use the same operator which previously took Y to school.
6. The Council has responded to Mrs X. It says the new operator secured the route as part of a tendering exercise. This means it cannot award the contract to the previous operator as to do so would be unlawful. It has explained that stage 2 transport appeals are heard by elected members. But they have no powers to say the Council must use a particular operator. The Council has said Mrs X can appeal to elected members, but not purely on the basis the Council should use the previous operator. The Council says the new operator has committed to using the same driver to maintain Y’s routine. It has also said Mrs X could travel with Y for the first few days to help Y become familiar with the new operator.
7. Councils are expected to offer an appeals procedure for parents whose applications for post-16 transport are refused, or where a parent wants to appeal the transport arrangements provided. The Council does offer such a procedure.
8. Mrs X is clearly concerned about the change of operator. But the only outcome Mrs X seeks is for the Council to use the operator which previously took Y to school. The Council has said it will not put this request to elected members because it is not something they could grant.
9. While I understand Mrs X’s frustrations, as the Council has explained, elected members would not be able to overrule the result of the procurement exercise. They could not say a different operator should be used. Because elected members could not give Mrs X the outcome she wants, I do not believe there is enough evidence of fault by the Council in refusing to progress her appeal. Also, because the appeal could not succeed, there can be no injustice to Mrs X from the Council’s refusal to progress it to elected members.
10. If, however, Mrs X has concerns about the transport offered, which could be resolved by something other than reverting to the previous operator, she should put these to the Council. If unhappy with the Council’s decision, Mrs X would then be able to access its appeals process. If Mrs X was unhappy with the eventual outcome, she could make a fresh complaint to the Ombudsman.

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Final decision

11. We will not investigate Mrs X’s complaint. This is because there is not enough evidence of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman