Summary: Mrs T complains about how the Council dealt with her application for home to school transport for her child. The Council failed to properly apply the relevant law when it originally refused to award Mrs T’s child school travel assistance. It also refused to backdate and reimburse the travel costs incurred by Mrs T from the date it made its initial error. This has caused Mrs T distress, frustration and time and trouble and financial loss. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs T complains about the Council’s:

• failure to properly consider and award school travel assistance eligibility to her child in 2013
• refusal to backdate and reimburse the travel assistance costs from September 2013 to April 2018
• failure to inform Mrs T about her appeal rights prior to January 2021.

2. Mrs T says the Council’s failings led to financial loss, significant distress, frustration and time and trouble chasing the Council about this matter.

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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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)
6. 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

How I considered this complaint

7. I discussed the complaint with Mrs T and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
8. I have exercised discretion to investigate matters from 2013. This is because I needed to consider the whole period to carry out a meaningful investigation.
9. I sent Mrs T and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

Back to top

What I found

Legislation and Guidance

Eligibility for free school transport

10. The Education Act 1996 says councils must provide free school transport to eligible children. The term ‘eligible’ means children of compulsory school age who meet certain criteria.
11. The eligibility criteria include children who live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above).
12. The “nearest suitable school” is the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child and any special educational needs the child may have.
13. Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be free of charge.
14. ‘Qualifying schools’ are defined in Schedule 35B as:

• community, foundation or voluntary schools;
• community or foundation special schools;
• non-maintained special schools;
• pupil referral units;
• maintained nursery schools;
• city technology colleges, city colleges for the technology of the arts or academies, including free schools and University Technical Colleges; or
• for children with special educational needs (SEN), an independent school can also be a qualifying school where this is named on the child’s Education, Health and Care Plan (EHCP) or Statement, or it is the nearest of two or more schools named.

15. Local authorities must publish general arrangements and policies in respect of home to school travel and transport for children of compulsory school age. This information should be clear, easy to understand and provide full information on the travel and transport arrangements. It should explain both statutory transport provision, and that provided on a discretionary basis.
16. The parental preference school might be further away from the home than the nearest school that can meet the child’s needs. In such a case, a council can name the nearest school if it considers it to be suitable for meeting the child’s SEN. If the parent prefers the school that is further away, the council may agree to this but is able to ask the parents to provide some or all, of the transport funding. (Special educational needs and disability code of practice: 0 to 25 years, January 2015, paragraph 9.214)

Council Policy

17. The Local Authority has a duty to provide home to school transport to children living within the county boundaries of Worcestershire. It owes this duty in situations where children living in Worcestershire may require transport to attend an out of county school or college but this will normally only be in circumstances when the establishment is the nearest to the home address or deemed to be appropriate for the child’s needs.
18. In cases where there is such a duty to provide transport, the County Council will provide it free of charge.
19. Special Educational Needs pupils will be awarded transport assistance as appropriate for the needs identified within their Education Health and Care Plan or Statement of Special Educational Needs. If determined, free transport or assistance with transport will be provided to the nearest suitable establishment indicated on the Statement or Plan on the basis of the individual child’s needs.
20. For pupils with Statement of Special Educational Needs or Education Health and Care Plan, an Annual Review of the Statement/Plan must take place. As part of this process the travel arrangement ……. will also be reviewed.

What happened

21. This chronology sets out key events in this case and does not cover everything that happened.
22. Mrs T’s child, Y, has some health conditions which puts her at risk of seizures. Y had a Statement of special educational needs (SEN).
23. In 2013, the Council offered Y, a school place at an in-county school, school A, which was 12 miles away from Y’s home.
24. Mrs T informed the Council that due to Y’s health conditions; school ‘B’ would be a better option for her. Mrs T said although school B was an out of county school, it was 4 miles away from their home which would help better manage Y’s epilepsy episodes. Mrs T explained she does not wake Y up because that triggers a morning seizure for Y. She said Y wakes up naturally about 7:45am and she would be able to continue to do so if she attended school B (the nearer of the two schools). Mrs T said that would not be possible if Y were to start school A which was 12 miles away from their home. She said it would mean an early pick up for Y and would trigger her epilepsy. Mrs T also explained school B was a special needs school which she considered was better suited to support Y’s SEN and social needs.
25. The Council named school ‘B’ on Y’s Statement of SEN based on parental choice. The Council stated in Y’s statement that her parents:

“expressed a preference for Y to attend school B. The Council accepts that this school would be suitable. However, it is not the nearest suitable Worcestershire school and the Council considers that it would be incompatible with the efficient use of its resources if it had to provide or fund home to school transport to this school. That being so the Council, having taken into account the SEN Code of Practice, has agreed to name the school on the express condition that Y’s parents accept and continue to accept liability for arranging and funding home to school transport. If for any reason they are no longer willing or able to do so, then Y would be expected to transfer to the nearest suitable Worcestershire school.”

26. Y started school B in 2013.
27. Mrs T said the Council told her she was not eligible to apply for school travel assistance for Y. This was because Mrs T chose school B as the preferred option for Y which was named in her Statement of SEN.
28. Mrs T said she raised her concerns on several occasions with the Council about its decision not to award Y travel assistance. She said all the professionals kept referring to the decision the Council made in 2013 as contained in Y’s Statement of SEN.
29. In January 2021, Mrs T started a new job with a SEN Transport Team. Mrs T said this was when she became aware of the home-to-school transport legislation which states, "if the parent’s preferred choice is further away then they would not be eligible for travel assistance”. Mrs T said this legislation did not and should not have been applied by the Council to Y’s case. This was because school B (her preferred school) was closer than school A which the Council offered Y.
30. Mrs T informed the Council about the legislation provision and alleged it made a wrong decision not to award school travel assistance to Y in 2013. The Council maintained its original decision that Y was not eligible to apply for travel assistance was correct. Mrs T said she insisted she wished to apply for travel assistance for Y based on her new findings of the legislation provision.
31. Mrs T applied for school travel assistance for Y. The application was unsuccessful. Mrs T alleged it was at this point the Council informed her about the appeal process. She appealed the Council’s decision not to award Y school travel assistance on the basis that:

• her preferred school (school B) was the ‘nearest’ SEN school to their home
• school B was not further away than the school the Council offered Y as stated in the legislation. She said school B was in fact closer than school A
• although the preferred school B was an out of county school while school A was an in-county school, Mrs T argued the legislation refers to the ‘nearest’ school and out of county boundaries were irrelevant.

32. Mrs T questioned why the Council was willing to provide travel assistance to Y if she attended a school 12 miles away from home. But it refused to award travel support for Y to attend a school nearer to home (4 miles) because of parental choice.
33. Mrs T’s appeal was successful. Y was awarded SEN transport assistance eligibility.
34. In February 2021, Mrs T made a formal complaint to the Council. Mrs T maintained she constantly raised her concerns about the wrong decision the Council made in 2013 not to award Y travel assistance eligibility. She said she discussed the matter at every Statement and EHCP review meeting, but staff always referred to the Council’s original decision. Mrs T said due to the Council’s error, she had been responsible for Y’s home to school transport from 2013 to date. She asked the Council to investigate the matter and advise her when Y went from being ineligible to eligible for travel assistance.
35. In its stage 1 complaint response, the Council accepted it made an error about its 2013 decision that Y was not eligible for school transport assistance. The Council confirmed Y attended the nearest school from home and in 2013, it accepted school B was suitable. So, Y was entitled for travel support in line with the Special Educational Needs and Disability (SEND) travel assistance policy. This is where a pupil would qualify for travel support if attending the designated or nearest school from home. The Council acknowledged its records showed Mrs T raised the issue and requested for travel assistance at each EHCP annual review meeting from 2018 to 2020. The Council agreed to start paying Y’s travel assistance from 2021 onwards.
36. Mrs T was dissatisfied with the Council’s response. She said although the Council admitted it made an error in 2013, it failed to offer any remedy for its error and refused to refund the travel cost from 2013. She maintained she raised her concerns about Y not receiving school travel assistance at every single annual review since 2013. Mrs T said she also made telephone calls to SEN case work officers on the same issue. Mrs T said staff continued to dismiss her concerns and referred to the Council’s original decision recorded in Y’s Statement of SEN. Mrs T expressed her frustration and the distress the matter had caused her for 8 years. She asked the Council to escalate her complaint to stage 2.
37. In May 2021, the Council informed Mrs T it agreed to backdate Y’s travel assistance to 2018. This was when its records showed Mrs T raised the issue and requested for travel assistance at Y’s annual review meeting. The Council said it found it was not appropriate to progress Mrs T’s complaint to stage 2 because:

• her complaint at stage 1 was mainly upheld and a stage 2 would on the balance of probability, reach the same conclusion
• it had agreed to an additional backdated reimbursement to 2018
• matters relating to previous telephone calls and travel assistance requests prior to 2018 was outside the usual 12-month remit of its corporate complaints process
• issues of compensation and reimbursement were outside the remit of an independent investigating officer who would have conducted a stage 2 investigation.

38. Mrs T remained dissatisfied with the Council’s response. She said the Council was solely responsible for its poor record keeping (documentary and telephone calls) about her concerns and requests for Y’s travel assistance. Mrs T complained to the Ombudsman.

Analysis

39. The law is clear that councils must provide free home to school transport for eligible children of compulsory school age to the nearest qualifying schools. Councils must apply their transport policy when deciding entitlement to transport assistance and must have a review or appeal process by which to do so.
40. My role is to decide if the Council considered the application for travel support without fault, in line with all relevant information.
41. The Council’s school transport policy is in line with the law. But the dispute is whether the Council applied its policy and the school travel legislation properly in Y’s case. Evidence shows the Council failed to properly consider and award Y eligibility to apply for travel assistance to school B in 2013. The Council was at fault for failing to award Y travel assistance to attend a school which was the nearest qualifying school to Y’s home. The Council’s failings caused Mrs T distress, inconvenience, financial loss and prevented Mrs T from appealing sooner.
42. The Council in its stage 1 response to Mrs T’s complaint, acknowledged its decision not to award Y transport eligibility in 2013 was an error. The Council explained it accepted school B was suitable and it was the nearest school to Y’s home. Therefore, it should have awarded Y transport assistance in 2013 to attend school B.
43. Evidence also shows the Council refused to backdate and reimburse the travel assistance costs from September 2013 to April 2018. This was fault. This has caused Mrs T financial loss, frustration and time and trouble chasing the matter with the Council. I find if not for the error the Council made in 2013 not to award transport assistance to Y, Mrs X would not have incurred the travel costs she did from 2013. When making recommendations to remedy the injustice caused, we aim to put the person affected back in the position they would have been in if the fault had not occurred. To this end the Council should backdate the travel costs to 2013 when Y started attending school B.

Back to top

Agreed action

44. To remedy the injustice caused by the faults identified, the Council has agreed within one month of the final decision to:

• apologise in writing to Mrs T and separately to Y. This is to acknowledge the distress and injustice caused by the failure to properly consider and award school travel assistance to Y in 2013
• pay Mrs T £200 financial remedy in recognition for the distress, avoidable time and inconvenience caused
• backdate and reimburse Mrs T the school travel costs she incurred from when Y started school B in 2013 to April 2018
• identify the lessons learnt from Mrs T’s case where the parental preferred school was nearer than the school offered by the Council
• share the identified lessons learnt with all staff who deal with school transport assistance applications.

Back to top

Final decision

45. I find evidence of fault by the Council causing injustice to Y and Mrs T. The Council has agreed to take action to remedy the injustice.

Back to top

Investigator's decision on behalf of the Ombudsman