Summary: Miss Y complains about an Independent Appeal Panel’s refusal to provide help with home to school transport for her son, M. The Ombudsman has decided, on balance, there was no fault in the Panel’s decision-making. However, the Ombudsman has found fault in the way the Council considered a subsequent application by Miss Y for assistance with school transport. This caused Miss Y uncertainty and she missed out on having her application fully considered by the Council. To remedy the injustice caused, the Council has agreed to apologise to Miss Y, make her a payment and make several service improvements.

The complaint

1. The complainant, who I shall refer to here as Miss Y, complains about an Independent Appeal Panel’s refusal to provide help with home to school transport for her son, M, to his primary school (School P). Miss Y says the Independent Appeal Panel failed to take into account:
1. her own disabilities;
2. M’s health and special educational needs, and his ability to travel safely to and from school on his own; and,
3. the fact she needs to remain at home until M’s brother, who is autistic, is collected by taxi and transported to his school.
2. The complainant says the Panel’s decision has had a negative emotional and physical impact on the whole family. She says it has affected her financially as she has to pay for M’s school transport costs. She says M has found the Panel’s decision confusing and left him vulnerable when getting to school by himself.

Back to top

The Ombudsman’s role and powers

3. 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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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)

Back to top

How I considered this complaint

6. I considered the information and documents provided by Miss Y and the Council. I spoke to Miss Y about her complaint.
7. Miss Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
8. 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.

Back to top

What I found

What should have happened

Law and statutory guidance

9. Under the Education Act 1996 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.
10. ‘Eligible children’ are defined in Schedule 35B of the 1996 Act. They include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and
• children living within 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.

11. The Department for Education’s Home to school travel and transport Statutory Guidance issued in July 2014 (the Guidance) states:

In determining whether a child cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’ or ‘unsafe route eligibility’, the local authority will need to consider:

1. whether the child could reasonably be expected to walk if accompanied; and, if so,
2. whether the child’s parent can reasonably be expected to accompany the child.
1. When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.
2. The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.
3. Local authorities should, however, promote and ensure equality of opportunity for disabled parents. For example, if a parent’s disability prevents them from accompanying their child along a walking route that would otherwise be considered unsafe without adult supervision, a reasonable adjustment might be to provide free home to school transport for the child in question.
4. Councils must have regard to the Guidance when carrying out their duties. This means Councils can depart from the Guidance, but if they do, they must have a good reason for doing so.

Westminster City Council’s Home to School Travel Assistance policy

16. Westminster City Council’s Home to School Travel Assistance policy (December 2020) says the usual statutory walking distances do not apply for children who have special educational needs (SEN), although the distance will be considered alongside the complexity of their individual needs. The local authority will assess each case to see if the child:

“Cannot be reasonably expected to walk to school because of their mobility problems or because of associated health and safety reasons related to their SEN”

17. In addition to considering the distance from the pupil’s home to school, the Council will also consider:
1. the needs of the child;
2. the complexity of the home to school journey;
3. the use of public transport whenever possible and appropriate; and,
4. promoting independent travel and travel training to promote a healthy approach to travel assistance as far as possible by: encouraging children to walk to school, and using the most cost effective travel assistance arrangements.
18. For primary pupils with an Education, Health and Care Plan, the Council will consider providing travel assistance from home to school if the severity of the pupil’s special educational needs prevents the parent/carer from taking their child to school without assistance. However, where a child lives less than two miles from school, the Council expects the parent/carer to be responsible for taking their child to school.
19. When considering whether or not provision of travel assistance for a particular child is necessary, the Council will take into account the following:
1. the special educational needs and/or disabilities of the pupil/student; for example, where the child would have considerable difficulty in walking or using public transport due to his/her special educational needs or disability;
2. the need for specialist transport, including an assessment as to whether the pupil/student has a physical or medical disability that rules out the use of free public transport, or suitable public transport is not conveniently available;
3. the distance and complexity of the journey from the pupil/ student’s home to the school/educational establishment;
4. whether the pupil/student is deemed to be vulnerable and at risk of danger if they use public or other transport;
5. the nature of the route to school including the safety of the route and alternative routes available;
6. the potential capability of the pupil/student to travel independently to school/educational establishment with the provision of suitable travel training.
20. Where in the case of (d) and (e) above the journey would be made safe if the pupil/student were accompanied, the expectation is that the parent/carer will accompany or make arrangements for the student/pupil to be supervised. Travel assistance will only be provided where appropriate evidence is provided to demonstrate that it would not be possible for the parent to accompany or make suitable arrangements for their child to be accompanied. In determining this evidence is appropriate, the local authority will consider whether the action required would be in line with what would be expected of any parent of a child without special educational needs. The journeys for other children/young people from the same family will not be considered as part of this policy, unless they are also eligible for travel assistance.

What happened

21. In May 2020, the Council awarded Miss Y temporary travel assistance for her son, M, to his primary school (School P). This was to support the family during COVID-19 related restrictions.
22. In September, the Council decided to withdraw its offer of temporary travel assistance for M following the relaxation of COVID-19 related restrictions. It wrote to Miss Y to say M did not meet the eligibility for travel assistance with home to school transport. It provided details of the four main eligibility criteria under its Home to School Travel Assistance policy.
23. In October, Miss Y appealed the Council’s decision.
24. A week later, Miss Y chased the Council for a response.
25. In December, the Council sent Miss Y the outcome of her appeal and the decision of the Independent Appeal Panel. This letter said Miss Y had attended the appeal and presented her case.
26. In February 2021, Miss Y made a new application for assistance with school transport.
27. In March, Miss Y complained to the Ombudsman.
28. The Council wrote to Miss Y refusing her second application for assistance with home to school transport.
29. In April, Miss Y submitted a new application to the Council for school transport assistance to a new school, School Q.
30. The Council approved her application and home to school transport was provided.
31. In June, M transferred to School Q and the Council began providing home to school transport assistance.

Analysis – was there fault by the Council causing injustice?

The Independent Appeal Panel’s consideration of Miss Y’s disabilities

32. Miss Y complains the Independent Appeal Panel failed to take her own disabilities into account (part a of her complaint).
33. Based on the evidence I have seen, Miss Y first provided the Council with information and evidence about her health conditions in February 2021 when she asked the Council to consider a second application. I, therefore, do not find the Independent Appeal Panel failed to consider Miss Y’s own disabilities as information and evidence concerning this was sent to the Council after the appeal in December 2020. The Panel was only expected to reach a decision based on information and evidence available at the time of the appeal. I, therefore, do not uphold part a of Miss Y’s complaint.
34. In February 2021, Miss Y made a new application for assistance with school transport. She sent the Council copies of certain new evidence, which included:

• a letter confirming she received the higher rate of Disability Living Allowance (DLA) for both care and mobility;
• a letter of support from M’s sibling’s school; and,
• a letter from M’s hospital.

35. Miss Y’s email to the Council said she had attached a “Transport Application Form”. However, this was missing from her attachments.
36. In March, the Council wrote to Miss Y refusing her second application for assistance with home to school transport to School P. It said:

• Although M does have some medical issues, the evidence supplied did not show that M would be unable to travel to his school, accompanied as necessary, due to his medical diagnosis. It said M, therefore, did not meet the special educational needs and/or disability criteria for home to school transport; and
• as the distance from home to school is only 0.6 miles, M did not meet the distance criteria for home to school travel assistance.

37. I find the Council at fault here. This is based on the following:

• in response to questions I asked the Council, it said it did not receive the second application form from Miss Y. It said no new evidence had been provided by Miss Y and so its refusal decision remained the same. However, the documents listed in paragraph 34 are dated after the Independent Appeal Panel decision. Based on the Council’s decision letter and response to my questions, it did not clearly explain to Miss Y how and whether it had considered these new documents she had provided. For example, Miss Y provided a new letter showing she received the higher rate of the mobility component of DLA. However, it is not clear how the Council assessed whether Miss Y could “reasonably be expected to accompany” M to school, as required by the statutory guidance (see paragraph 11, bullet point b, above). The Council also failed to contact Miss Y to request a copy of the missing application form, which she had referred to in her email. This meant the Council made a decision without all the information it needed to do so; and
• in April 2021, Miss Y submitted a further application for home to school transport assistance to M’s new school, School Q. She explained to the Council that, without realising it, she had not attached her previous application form to her email from February, which she had intended to be a fresh application with information on her own disability and health. The Council approved her application for home to school transport to School Q. It explained this was because this time Miss Y had provided “evidence of her health conditions, her DLA letter, a letter of support from M’s brother’s school and a letter of support from [M’s] Hospital. This application was approved due to the new evidence provided”. These documents were provided at the time of Miss Y’s email in February. But it is not clear why they were discounted from the Council’s decision from February.

38. I find the Council’s fault here caused Miss Y uncertainty and distress. She missed out on having her application and new evidence fully considered by the Council in February 2021. In comments on the draft decision, the Council accepted this finding. To remedy the injustice Miss Y experienced, the Council said it would reimburse Miss Y for the transport costs incurred between the new submission in February and travel assistance subsequently starting. This would be based on the Council’s current offer of support and total £800. I find this sufficiently remedies the injustice Miss Y experienced.

The Panel’s consideration of Miss Y’s health and special educational needs

39. Miss Y complains the Independent Appeal Panel failed to take into account M’s health and special educational needs (SEN), and his ability to travel safely to and from school on his own (part b of her complaint). She complains the Panel failed to consider the fact she needs to remain at home until M’s brother, who is autistic, is collected by taxi and transported to his school (part c of her complaint).
40. In October, Miss Y appealed the Council’s decision. She said:
1. M has an Education, Health and Care (EHC) Plan. M has asthma and dyslexia. He also has dyspraxia and suffers with leg and joint paint connected with this. She said M’s route to school was unsafe due to the major roads he was expected to cross. She asked the Council to send her its policy on unsafe walking routes;
2. Miss Y used to be able to accompany M to and from school; and,
3. M finds going on buses alone difficult and often misses his stop. He is also at higher risk of COVID-19 due to health conditions. She provided a letter from the Department of Health and Social Care identifying M as someone clinically extremely vulnerable who was advised to follow shielding advice.
41. In December, the Council sent Miss Y the outcome of her appeal and the decision of the Independent Appeal Panel. The Panel refused assistance with transport.
42. Having considered the Council’s response to my enquiries, Miss Y’s appeal and supporting documents, as well as the Independent Appeal Panel’s decision and the Council’s comments on my draft decision, on balance, I do not find fault in the Panel’s decision. This is based on the following:
1. the Panel considered the walking route as safe because there was an adequate footway along the entire route. It accepted the definition of an unsafe route was unclear in its Home to School Travel Assistance policy and explained the Council had updated this to include a link to the Road Safety GB guidelines on the Assessment of Walked Routes to School (as updated 2016). Miss Y said M’s route to school was unsafe due to the major roads he was expected to cross. Although I would have expected the Panel to have addressed this point directly in its decision letter to Miss Y, I do not find this amounts to fault. This is because, in comments on the draft decision, the Council explained why it assessed such crossings to be in line with the Road Safety GB Guidelines and that they still complied with the definition of a non-hazardous walking route; and,
2. with respect to M’s health and SEN, the Panel acknowledged Miss Y would like for M to travel by taxi to school, but ultimately wished for M to travel independently. The Panel noted School P had no concerns about M travelling to school by walking or taking public transport, accompanied if necessary. The Panel agreed the evidence did not show M was unable to travel to school, accompanied if necessary, due to mobility problems or because of health and safety issues related to his special educational needs or disability. Based on the evidence I have seen and the Council’s comments on our draft decision, on balance, I find the Panel considered whether M could be “reasonably be expected to walk if accompanied” and whether Miss Y could “reasonably be expected to accompany” M to school (as required by parts a and b of the Department for Education’s Home to school travel and transport Statutory Guidance in paragraph 11 above). In her appeal, Miss Y explained that she used to be able to accompany M to and from school. However, the start and end times at school had recently changed for his sibling, who is autistic and attended a different school to M and received assistance with home to school transport, which meant Miss Y was no longer able to accompany M to school. She said she was a single parent with no one else who could help with accompanying M or his brother to their schools. However, the Council has explained that as M’s school was less than two miles from home, the expectation was on the parent, Miss Y, to take M to school (see paragraph 18 above). It considered Miss Y could reasonably be expected to accompany M to school because there was no evidence at this point that suggested Miss Y was unable to do so because of health reasons or disability. As the Panel considered M could be reasonably expected to walk the route and there was no unsafe walking route, there was not statutory or policy requirement for the Panel to consider Miss Y’s responsibility to M’s sibling’s travel requirements. This is in line with paragraph 19 and 20 above.
43. The Panel made certain recommendations in its decision letter. For example, the Panel recommended consideration be given to whether changes could be made to the timings for M’s sibling’s home to school transport to allow Miss Y more time to support M. The Chair confirmed he was looking into this and had spoken with the Council’s SEN transport coordinator. Although I find the Council could have communicated more clearly with Miss Y about the timeframe for the completion of these recommendations or whether they would affect its decision, I do not find this amounts to fault. In comments on the draft decision, the Council confirmed the outcome of these recommendations would not have affected the Panel’s decision. It clarified the purpose of these additional actions was to provide reassurance to the family that they would be looked into as a priority.
44. Based on the evidence I have seen, I, therefore, do not uphold parts b and c of Miss Y’s complaint.

The timeliness of the Panel’s decision

45. Miss Y complains there were delays in the Panel hearing her appeal.
46. Miss Y submitted her appeal in early October 2020.
47. Several weeks later, the Council emailed Miss Y for more information about M’s health and special educational needs before it could make a decision.
48. One month later in November, Miss Y sent the Council the extra information. She apologised for the delay in sending the documents. I do not find the Council at fault for this period of delay.
49. In response to questions I asked the Council, it explained there was a delay following this while a new Panel member was arranged due to a conflict of interest for a regular Panel member. The Panel heard Miss Y’s appeal three weeks after receiving her extra information. I do not find the delays involved here amounted to fault by the Council. The Council has provided acceptable reasons why it was necessary to find a suitable alternative Panel member and arranged this within an acceptable timeframe.

Back to top

Agreed action

50. Ordinarily, given the fault identified in paragraph 37 above, I would recommend the Council makes a fresh decision for the complainant to remedy the injustice caused.
51. However, Miss Y’s son, M, has since changed school to School Q. This means there is no achievable outcome as M no longer attends the school, School P, that would be the subject of this decision. I, therefore, consider the following to be appropriate remedies given a fresh decision cannot be recommended:
52. Within four weeks of my final decision, the Council has agreed to:
• apologise to Miss Y in writing, and
• make a payment to Miss Y of £800 for the transport costs incurred by Miss Y between Miss Y’s second application in February 2021 and travel assistance subsequently starting. This payment was offered by the Council in comments on the draft decision.
53. Within three months of my final decision, the Council has agreed to make the following service improvements:
1. review its Home to School Transport Assistance policy to make sure it is clear to staff that decision letters should include full reasons why an application does not meet the eligibility criteria (with clear referencing to the applicable part of its policy); and
2. send a reminder to relevant staff about the two-part test to apply when determining whether a child cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’ or ‘unsafe route eligibility’ (see paragraph 11 above).
54. The Ombudsman will need to see evidence that these actions have been completed.

Back to top

Final decision

55. I have completed my investigation.
56. I have decided not to uphold parts a to c of Miss Y’s complaint because, on balance, there was no fault by the Independent Appeal Panel causing her injustice.
57. I have, however, decided to uphold Miss Y’s complaint about the Council’s failure to fully consider her second application from February 2021. This is because there was fault by the Council causing her injustice. The Council has agreed to the above recommendations as suitable ways for it to remedy this.
58. I have decided not to uphold Miss Y’s complaint about the timeliness of the Independent Appeal Panel’s decision. This is because there were not any unnecessary delays.

Back to top

Investigator's decision on behalf of the Ombudsman