Summary: Mrs X complained the Council did not provide sufficient information or guidance in relation to the transport assistance available and has wrongly refused to fully backdate her children’s entitlement to transport to school. There is no evidence of fault in the way the Council provided information on the availability of transport assistance or in the way it considered Mrs X’s application for transport assistance.

The complaint

1. The complainant, whom I shall refer to as Mrs X complained the Council has wrongly refused to backdate fully her children’s entitlement to transport to school. She complains she was not given sufficient information or guidance in relation to the transport assistance available and that case workers did not respond to her requests for information or assistance.

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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. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs X;
• made enquiries of the Council and considered the comments and documents the Council provided; and
• Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

5. Mrs X has three children with special educational needs. All three have Education, Health and Care (EHC) plans. Mrs X had been driving her children to and collecting them from their schools each day. In early December 2020 she applied for assistance with home to school transport for the three children.
6. The Council assessed her applications and on 23 December 2020 confirmed all three children qualified for support. The Council noted they would require door-to-door support with home to school transport and would require the support of a passenger assistant. It confirmed it would arrange for support for her youngest child to begin as soon as possible and transport support for her older two would begin when they returned to school on 11 January 2021.
7. Mrs X then asked whether her claim for transport support could be backdated as she was not previously aware her children were entitled to transport or that she could claim for mileage. Mrs X stated having to drive her children to school each day had placed a huge strain on the family.
8. Having considered Mrs X’s request, the Council confirmed it would offer a backdated mileage allowance from September 2020. It asked Mrs X to complete the necessary forms to allow the Council to make this payment. Mrs X was unhappy the Council had only backdated the travel support to September 2020.
9. She stated she had transported her children to school for the last five years without any support which put a huge burden and financial strain on her family. The commute times also meant that Mrs X had been unable to work. Mrs X asserted the Council should have made her aware of the transport support available and offered this from the outset.
10. The Council advised Mrs X that transport assistance is available to parents who apply for and qualify for it. It is not offered to everyone as a matter of course as not everyone would qualify. It stated its transport offer, policy and application forms are available on its website and that details of how to apply for transport assistance are included on the letters sent with EHC plans. The Council stated it is the parents responsibility to apply for support or make enquiries if they consider this is needed. It declined to backdate any claim because Mrs X did not know the assistance existed.
11. Mrs X asked the Council to send her copies of the claim forms as she was unable to complete them on line. She told the Council she had ADHD and found filling in forms very difficult and had asked for help on multiple occasions. Mrs X also asserted that she would have qualified for transport assistance every year and that she had asked for information every time the EHC plans were updated.
12. In response the Council advised Ms X of her right of appeal. It confirmed an officer would review the decision not to backdate the mileage at the next stage one review which would take place on 2 February 2021. The Council invited her to provide any additional information she wanted the reviewing officer to consider. The Council also provided copies of the claim forms and details of how she could receive support in completing them.
13. Following the review, the Council wrote to Mrs X on 16 February 2021 with the outcome. It noted Mrs X felt she was never fully informed about the availability of support despite her having tried to discuss this with her children’s caseworkers. But it considered there were insufficient grounds to award the support Mrs X had requested. It noted that the letters sent with her children’s draft and amended EHC plans referred to applying for transport and provided details of how to contact the transport team.
14. As Mrs X did not apply for transport support prior to December 2020, the Council was satisfied the offer of mileage allowance backdated to September 2020 was fair. Mrs X disagreed and requested a stage two review. She reiterated she had requested support with transport several times and had not been provided with any information. Mrs X also restated that she struggled with forms and timelines as she has ADHD and is autistic.
15. Mrs X was invited to but was not available to attend the stage two appeal hearing. The clerk’s notes of the hearing show the panel members consider the offer to backdated mileage to September 2020 was generous and did not feel it was appropriate to backdate payments prior to then. The panel considered the Council had done enough to communicate the transport offer. It also noted that Mrs X’s appeal correspondence was very eloquent and showed a good level of communication ability.
16. The Council wrote to Mrs X confirming the panel’s decision not to backdate mileage payments before September 2020. Mrs X remains dissatisfied and has asked the Ombudsman to investigate her complaint.
17. In response to my enquiries the Council states it has no record on file of Mrs X requesting help with transport, either in writing or over the telephone, until the successful application in December 2020. It also states the two SEND caseworkers responsible for preparing and reviewing Mrs X’s children’s EHC plans have no recollection of Mrs X ever requesting transport information or support. The Council is unable to account for the difference between Mrs X’s assertions and its records.
18. The Council states Mrs X only recently made it aware of her additional needs. It notes that in its dealing with Mrs X there have been several instances where she was specifically asked whether she had any additional needs of her own or needed help in accessing the service. It states Mrs X did not answer ‘yes’ on any occasion.
19. In addition, the Council states the documentation shows Mrs X has consistently been able to understand and navigate processes, including detailed and complex ones, independently and eloquently. It asserts Mrs X’s approach to the transport application gave no reason to believe she had any additional needs. She navigated the process efficiently, including following the two stage appeal process independently.
20. The Council states it provided Mrs X with explicit information in written communication, prominently placed on page one under a bold heading, on eleven occasions. It also notes there is extensive information, in an accessible format, on the Council’s website about the availability of transport assistance.
21. Mrs X has responded to the draft decision and disputes the Council was unaware of her additional needs. She maintains she repeatedly asked the Council for help and states this should be recorded in the minutes of the EHC plan reviews for each of her children. Mrs X states the Council was aware she had help from SENDIASS and the SENCO at her children’s school in completing forms.
22. Mrs X also maintains that she did not receive copies of draft EHC plans or the cover letters.
23. The Council has provided copies of significant correspondence with Mrs X over several years in relation to each of her three children. It states some letter were sent by post and some by email. And it has no record of Mrs X notifying the Council she had not receive any anticipated documents. The Council states Mrs X was involved in the formulation of her children’s EHC plans over the years.
24. The Council acknowledges that Mrs X had support to complete some forms, but states it was never highlighted that this was due to a communication need. It states lots of parents seek support form professionals working with the family, but it would be unjust to make assumptions as to the reasons for this. The Council has reiterated that Mrs X has communicated independently and eloquently with the Council.

Analysis

25. Our investigations are evidence based. We cannot accept one person’s word against another. If there is a conflict of evidence, we make findings based on the balance of probabilities. Mrs X states she was not aware her children may be eligible for home to school transport, and repeatedly asked for assistance with transport over several years. The Council states it has repeatedly provided information about transport assistance but has no record of any requests for information or support until December 2020.
26. The Council has provided copies of correspondence with Mrs X in relation to EHC plans for her children since 2014 which detail the availability of transport assistance. For example, letters sent with amended EHC plans as part of the children’s annual reviews state:

“Applying for transport assistance

It is also important to think about how [Mrs X’s child] will get to the school or setting that you prefer. If you wish to speak to the transport team about [Mrs X’s child’s] eligibility for assistance with transport or to discuss the additional costs that may be incurred, they can be contacted via ...”

27. While letters sent following the initial EHC needs assessments state:

“Applying for transport assistance

It is also important to think about how [Mrs X’s child] will get to the school or setting that you prefer. Assistance with transport is only available in specific circumstances. Please note that if you would like [Mrs X’s child] to attend a school/setting other than that which is the nearest appropriate setting to your home address, should you decide to apply for assistance with transport you may be liable for any additional transport costs that are incurred. If you wish to speak to the transport team about [Mrs X’s child’s] eligibility for assistance with transport or to discuss the additional costs that may be incurred, please contact them on ...”

28. This correspondence suggests Mrs X would have been aware of the availability of assistance in transporting her children to and from their schools, and how to apply or request information. It was open to Mrs X to apply for this assistance or to ask for information of support prior to December 2020.
29. Mrs X states she did not receive a number of letters and draft EHC plans from the Council. This is unfortunate, but there is no evidence to suggest it was due to fault on the part of the Council. The letters and emails to Mrs X are all correctly addressed, and there is no evidence they were returned as undelivered. I have not received any evidence to suggest Mrs X complained she was routinely not receiving correspondence or draft plans.
30. It is unclear why the Council has no records of Mrs X’s verbal requests for assistance prior to December 2020. I do not consider I will be able to resolve this issue by further investigation. There is no evidence to suggest the Council was reluctant to accept a request or sought to avoid providing transport assistance for Mrs X’s children. It determined Mrs X’s application promptly in December 2020 and has provided all three children with transport support.
31. The Council also offered, as a gesture of goodwill, to pay Mrs X backdated mileage allowance from the start of the academic year. There was no requirement for the Council to make backdated payments and I consider this to be a generous offer.
32. Mrs X informed the Council during the review process that she has additional needs and struggled with forms and timelines. The Council states it was unaware until this stage and Mrs X had not previously indicated she needed any support. In the preceding years Mrs X had completed a number of forms in relation to her children’s EHC plans which ask:

“Do you/your child require any interpretation or access support? If yes, please give details.”

33. Mrs X did not indicate on these forms that she had additional needs or that she required support. A number of forms note Mrs X’s preferred method of contact is by telephone but there is no suggestion her additional needs were a barrier to her accessing services. Mrs X received assistance from the SENCO at her children’s school and SENDIASS, but this is not unusual and does not in itself indicate Mrs X had additional needs.
34. Mrs X maintains she regularly told the Council at EHC review meetings that she had additional needs and required support, but the minutes do not record this, and the caseworkers cannot recall such requests. It is not possible to reconcile the differing accounts, and I do not consider anything more can be achieved through further investigation.
35. Although Mrs X has now made the Council aware of her additional needs, the documentation available does not show that she has asked for any particular support or adjustments in dealing with the Council. Should Mrs X requests support in accessing services we would expect the Council to consider her requests and offer appropriate support.

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Final decision

36. There is no evidence of fault in the way the Council provided information on the availability of transport assistance or in the way it considered Mrs X’s application for transport assistance.

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Investigator's decision on behalf of the Ombudsman