Summary: Miss X complained the school transport the Council provided for her son is not suitable for his needs. Based on the information I have seen, there was fault in how the Council decided the transport provided for Y was suitable. It agreed to review its decision and give Miss X the opportunity to speak to the decision maker. It also agreed to review its practices for driver training.

The complaint

1. Miss X complains the school transport the Council provided for her son, Y, from September 2020 is not suitable for his needs. She says there have been many problems with the Council’s chosen provider which the Council has not investigated properly and have caused Y to no longer feel safe. Miss X says this made Y’s anxiety worse and she had to ask family members to take Y to school. She wants the Council to provide Y transport using a different provider.

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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 considered:
• the information Miss X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
7. 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.

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What I found

School transport and suitability of travel arrangements

8. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. (Education Act 1996, section 508B and Schedule 35B)
9. Statutory guidance ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’), issued in July 2014 says about suitability of the travel arrangements:
• Best practice suggests the maximum journey to or from school for a child of primary school age should be no more than 45 minutes and for secondary school age 75 minutes. For children with special educational needs or disabilities, journeys may be more complex and a shorter journey time, although desirable, may not always be possible.
• 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.
• Councils are responsible for ensuring the suitability of staff, or employees of transport providers, including taxi drivers, who provide school transport.
• Councils should ensure school transport drivers have undertaken appropriate training including, but not limited to:
1. an awareness of different types of disabilities;
2. the necessary skills to recognise, support and manage pupils with different types of disabilities and associated behaviour; and
3. the skills necessary to communicate appropriately with pupils with all types of different disabilities.
10. The Council’s ‘Education Transport Policy’ says:
• “Children with an [Education Health and Care plan] should be transported to school in a manner that assists their readiness to engage in learning on their arrival at school and ensures both their comfort and safety.”
• Where a child is entitled to transport under this policy, the Council will provide suitable transport and seek to ensure this is cost effective. The transport provided may take the form of a bus pass, train pass, or seat on a contract vehicle for children with special educational needs and disabilities.
• It has a two-stage appeal process for parents who wish to challenge a decision about school transport:
1. Stage 1 – a review by a Council officer.
2. Stage 2 – a review by a Council officer more senior than that at Stage 1.
• At the Stage 2 appeal, parents can ask for a telephone or in person appointment with the decision maker to make their case orally.

What happened

11. Miss X’s son, Y, has special educational needs including being prone to anxiety, limited emotional skills and difficulty communicating his emotions. He has an Education Health and Care (EHC) plan which says he “likes things to be consistent and predictable and can get very anxious about changes to his routine without explicit prior warning of these.” and needs “clear structure during the school day, including during break and lunchtimes. Routines need to be clear and consistent in order to help him to feel safe”.
12. Y spent several years out of school, educated at home, until he started his placement at a special secondary school, School A in September 2020. School A is around 35 miles from Miss X’s home by car.
13. The Council provides Y with transport to School A through a contract with a taxi company, Company B. According to the Council, the usual arrangement is for the taxi to collect Y at 7:45am and to arrive at School A by 9am. Miss X is happy for Y to share this taxi with another student from School A who lives nearby but other children Y does not know can make his anxiety worse.
14. Since shortly after the school transport started, Miss X told the Council and Company B about problems with the transport. This included journeys taking longer than the expected 75 minutes, transporting extra children with Y and changes to the route or drivers without any notice, all of which caused Y extra anxiety.
15. In October 2020, Miss X complained to the Council about the suitability of the transport, including long journeys, late arrival at school and transporting other children with Y. She provided evidence from Y’s doctor explaining this increased his anxiety and affected his education.
16. The Council raised these issues with Company B and says it tried to agree improvements to Y’s journey.
17. In April 2021, while taking Y home, the taxi hit another car while waiting in traffic. Because there were no injuries or damage to the cars, and they were near the end of the journey, the driver took Y home before reporting the incident to Company B. Before the driver had done this, Miss X had contacted the school to find out what happened.
18. The following day, Miss X complained to the Council about the collision and other continuing problems with the transport, including:
• not telling her about the collision;
• journeys regularly exceeding 75 minutes;
• changes to routes and transporting extra children with Y;
• drivers arriving early, adding to Y’s anxiety;
• poor, or no, communication from Company B about changes to routes or drivers;
• drivers not understanding how to support Y, including when he becomes anxious;
• driver conduct (such as playing loud music, eating, leaving children unattended when buying fuel or using the toilet); and
• drivers speeding.
19. Miss X also appealed about the transport, saying it was not suitable for Y because it made his anxiety worse and affected his ability to take part in his education.
20. The Council asked Company B for its comments on Miss X’s concerns. Company B investigated and sent its findings to the Council around 10 days later:
• Drivers should not leave children alone except in exceptional circumstances. No drivers had admitted to leaving Y alone, but if Miss X could provide dates when this happened, it would check the tracking data. It said it had also asked its fuel supplier if there had been any refuelling during planned journey times.
• The predicted journey times was 75 minutes and, in October 2020, the Council decided to transport Y and the other nearby pupil only, to reduce travel times. It provided journey data for the last week showing all the journeys were around 75 minutes.
• Company B’s policy was to offer a ‘meet and greet’ with new drivers, but this was not possible for two new drivers during the COVID-19 pandemic. These drivers had received “on the job training with experienced drivers” who were aware children attending School A needed special arrangements. Y had six drivers since October 2020 and it had arranged for the same driver to transport Y in both the morning and afternoons since mid-April 2021.
• Drivers sometimes arrived early but they did not expect Y to leave before 9:45am.
• It had upgraded its tracking and could check speeds if Miss X could provide dates she believed speeding happened.
21. Company B also said it found it surprising Miss X complained about both long journeys and speeding. It also said it only received complaints from Miss X about its drivers, so it did not believe its drivers were doing anything wrong.

Stage 1 appeal and response to Miss X’s complaint

22. In early May, the Council considered Miss X’s appeal at Stage 1 and decided the transport was suitable. It gave the following reasons for its decision:
• While the planned journey time was the same as the maximum given in the Guidance, it was reasonable given the distance between Miss X’s home and School A. It noted the evidence from Y’s doctor but explained journey times can sometimes be longer due to slow traffic, weather and roadworks. It said it would monitor future journey times.
• While it recognised the importance of continuity with drivers, during the COVID-19 pandemic this had not been possible. However, it would work with Company B to improve consistency and tell Miss X about any changes in advance.
• It noted Miss X’s concerns about the driver’s inability to calm Y after a wasp flew into the taxi and was still investigating that incident.
• Sometimes changes to journey’s were necessary and providers may sometimes need to carry extra children with Y.
• It had told Company B to address Miss X’s concerns about the conduct of its drivers.
• The driver and Company B responded to the collision properly. Company B had investigated the incident, which was minor.
23. Around the same time, the Council responded to Miss X’s complaint. It relayed Company B’s findings and assured it worked to minimise journey times and increase consistency. The Council told Miss X it could investigate her concerns about leaving children unattended and speeding if she could provide dates this happened. It told Miss X to contact Company B for a copy of its driver conduct policy.

Stage 2 appeal

24. Miss X was not satisfied with the Council’s response, so she asked for a Stage 2 appeal. She told the Council:
• it had not sent her an assessment of Y’s transport needs;
• Company B would not provide her with its policies, instead it had told her to contact the Council;
• it had not properly considered the effect of the problems on Y;
• although she was happy with the planned journey, this was not what was happening; and
• she wanted to know how the Council was monitoring the journeys.
25. The Council responded to Miss X’s Stage 2 appeal at the end of May 2021. Again, the Council decided the planned journey time was reasonable, and so the transport was suitable. It apologised for any instances of poor driver conduct, or if drivers did not understand how to support Y. However, it said it had seen no evidence the arrangements were unreasonable or unsafe.
26. It also confirmed it was satisfied the driver and Company B properly responded to the collision while transporting Y home.
27. Miss X complained to the Ombudsman because she was not happy with the way the Council had considered her appeal. Since her complaint, Miss X says there have been more unannounced changes to drivers, speeding and other children sharing the taxi with Y.

My findings

Suitability of transport for Y

28. Any transport arrangements the Council makes for Y must be ‘suitable’. This means they need to be safe, ‘reasonably stress free’ and enable Y to arrive at school ready to learn. Miss X provided evidence from her own observations and those of Y’s doctor that Y’s experiences on the journey to school left him feeling anxious and distressed when he arrives at school. The Council also confirmed School A supported Miss X’s appeal.
29. The Council referred to Miss X’s views and evidence from Y’s doctor. However, it has not explained why it disagrees with this evidence that Y’s experiences on school transport have impacted his wellbeing and education.
30. The evidence shows the expected journey time of 75 minutes, when transporting Y and the other nearby student from School A, is realistic, given the distance to School A. It is unlikely the journey time would be lower than this during the times Y travels to and from school. Therefore, any changes to the route or picking up extra children would be likely to make the journey longer than it should be.
31. When considering Miss X’s appeals, the Council focused on what the planned journey was, not what was happening in practice. Before deciding whether the transport was, in practice, safe and reasonably stress free for Y, the Council failed to find out:
• how often the journey exceeded 75 minutes, why this happened and whether any delays were avoidable;
• how often Company B had made changes to the route, driver or children carried with Y and whether it gave Miss X or School A enough time to prepare Y for any changes;
• the impact of any long journeys and changes on Y;
• what training the drivers transporting Y had and whether this was enough to meet Y’s needs; and
• whether the speed on any journeys was excessive.
32. The Council also decided the transport was suitable before it knew the outcome of several other investigations, including Company B’s enquiries with its fuel supplier and its own investigation into the wasp incident. There is also no evidence the Council monitored the arrangements, reviewed the results of this or shared any findings with Miss X.
33. For these reasons, I find the way the Council considered Miss X’s appeal was flawed.
34. I am also not satisfied Company B’s investigation was carried out objectively. Its comments to the Council suggest it was dismissive of some of Miss X’s concerns.
35. However, I am satisfied the Council properly investigated the collision from April 2021, given the lack of damage and that nobody was injured. By the time Company B notified the Council, Miss X was already aware of what had happened, and the Council knew this. Therefore, the Council was not at fault for not informing Miss X itself.

Council’s appeals process

36. The Ombudsman has considered the Council’s appeals process in previous investigations and come to the view that the Council has adequately explained its reasons for adopting an appeal process without an independent second stage as recommended by the Guidance. Therefore, there was no fault in having a council officer consider the appeal at stage two.
37. However, the Guidance says councils should consider verbal representations during the appeals process. The Ombudsman published a Report (19008896) in August 2020 in which we set out our view that verbal representations are important, especially where complainants might struggle to explain their case in writing.
38. The Council’s policy says parents can make verbal representations. However, there is no evidence the Council drew this to Miss X’s attention, or directed her to the policy so that she was aware of her right to speak to the decision maker. In many of Miss X’s complaints, she told the Council she wanted to speak to someone or arrange a meeting to discuss her concerns.
39. We considered this issue in another complaint (20002063) in which the Council agreed to signpost complainants to its Education Transport Policy, which includes information about appeals, in its stage one appeal decisions. It said it had done this since March 2021. However, there is no evidence the Council did so in Miss X’s case. This was fault.

Training for school transport drivers

40. The Guidance says councils should ensure school transport drivers have had appropriate training and that this is kept up to date.
41. In its response to my enquiries, the Council said it does not specify training that transport providers it contracts with should provide for its drivers. Although the contract between the Council and its transport providers mentions they must complete any specified training, the Council has not specified any such training.
42. We expect Councils to show good reasons to depart from statutory guidance. The Council has not provided any reasons it does not require drivers to complete the training listed in the Guidance. Therefore, the Council’s failure to ensure drivers have had appropriate training is fault.

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Agreed action

43. Within one month of my final decision, the Council will:
• review its decision about the suitability of the transport it provides for Y. This should address each of Miss X’s concerns and include finding out: how the transport arrangements have worked in practice, the extent of any problems Y experienced and how this affected him. The Council should offer Miss X the opportunity to speak to or meet with the decision maker;
• write to Miss X and the Ombudsman setting out its decision, its reasons, the evidence it considered, the weight it gave to the evidence and how it resolved any conflicts of evidence; and
• if the Council decides the transport was not suitable, make suitable arrangements and provide a remedy for any avoidable distress to Miss X and Y, in line with our Guidance on Remedies.
44. Within three months of my final decision, the Council will review its practices for school transport driver training to ensure it complies with the statutory guidance.

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Final decision

45. I have completed my investigation. There was fault in how the Council decided the transport provided for Y was suitable. It agreed to review its decision and give Miss X the opportunity to speak to the decision maker. It also agreed to review its practices for driver training.

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Investigator's decision on behalf of the Ombudsman