Summary: Mrs A complains the Council has not provided the travel payments agreed to support her son to attend school. Mrs A complains the Council has not considered her son’s Special Educational Needs in its decision not to provide the agreed travel. This meant she had to pay out of pocket to bring her son to school when the Council should have partially funded travel. The Ombudsman finds fault with the Council for failing to apply a consistent approach to its discretionary travel policy for Child X. The Ombudsman recommends the Council reconsider Mrs A’s requests without fault and pay Mrs A a financial sum in recognition of the distress and uncertainty. It should also consider service improvements.

The complaint

1. Mrs A complains the Council has not provided the travel payments set out in the decision from her appeal.
2. Mrs A complains the Council has reduced the payments without good reason.
3. Mrs A complains this has caused her to pay out of pocket to get her son to school when he is entitled to support and caused significant distress to herself and her son.

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The Ombudsman’s role and powers

4. 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)
5. We investigate complaints of injustice caused by 'maladministration' and 'service failure'. I have used the word 'fault' to refer to these. 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)
6. 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

7. I considered Mrs A’s complaint and the information she provided. I also considered information from the Council. I also considered comments from Mrs A and the Council on a draft of my decision.

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What I found

Legislation and guidance

8. This is statutory guidance issued by the Department for Education which means councils have a duty to have regard to it when carrying out their duties connected to home to school travel and transport.
9. Under sections 508B and 508C of the Education Act 1996, councils must ensure suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school.
10. Schedule 35B of the 1996 Act defines eligible children. These are children of compulsory school age (5-16) in its area for whom free travel arrangements will be required. Local authorities are required to provide free transport for all pupils of compulsory school age if their nearest suitable school is beyond 2 miles (for those below the age of 8) or beyond 3 miles (for those aged 8-16). (paragraph 16)
11. The nearest suitable school is a ‘qualifying school’ which includes community, foundation, or voluntary schools, for example (paragraph 29).
12. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (paragraphs 54-55)
13. It recommends councils adopt the following appeals process:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us.

The Council’s school transport policy

14. In cases of domestic violence and temporary accommodation, the Council’s school transport policy says “Where a family has been temporarily re-housed consideration will be given to provide transport assistance to the child’s current school for one term at a time whilst they are waiting for permanent housing providing the distance criteria is met. This would be considered for a maximum or three academic terms in order for families to find alternative accommodation or make their own transport arrangements”.
15. In cases where children have Special Educational Needs (SEN), the Council’s school transport policy says where a child’s SEN or mobility difficulties mean he or she cannot reasonably be expected to walk to school even when accompanied by a parent, transport can be provided even if the distance criteria is not met. An assessment of a child’s SEN or mobility difficulties will be carried out by Education Awards based on evidence provided by the parent/carer upon application. The following list, though not exhaustive, will be considered:

• A child’s emotional and behavioural difficulties will create a clear health and safety hazard to themself or others on the journey to school. Where this is the case exceptional transport would be provided and reviewed, where appropriate.
• The length of the walk to school would prevent the child from being in a fit state to be educated upon arrival. Where this is the case exceptional transport would be provided and reviewed, where appropriate.

What happened

16. Mrs A asked the Council for support to get her son, Child X, to school.
17. Mrs A’s reasons for seeking support were that she had been moved from her home due to domestic violence, and that her son’s SEN meant he could not travel to school alone.
18. The Council at first declined Mrs A’s ask for support. It said that as Child X was not attending his closest school, the decision was refused.
19. Mrs A appealed the Council’s decision and her appeal was upheld. The appeal decision said Miss A could be granted one of the following options

• Public or contract transport on an existing vehicle
• A one off payment of £250 for you to make your own arrangements
• A one off payment of £150 for you to make your own arrangements
• A mileage allowance of 45p per mile to drive your child/ren to school

20. The Council wrote to Mrs A and said that it would pay £5 for each day of travel. This was the cost of a daily bus pass that would take Child X to and from school.
21. Mrs A declined the bus pass, and the Council agreed to give Mrs A £5 towards the cost of fuel, as this was the same amount as the daily bus pass.
22. Mrs A did not agree with this decision, as her sons school was a X miles away and cost more than £5 in fuel for two return journeys every day. Mrs A explained that her sons SEN meant he could not travel on public transport on his own.
23. The Council told Mrs A that its policy was to award the same costs as local transport, which is why it offered £5 per day for Child X.
24. Mrs A remained unhappy and complained to the Ombudsman.

Analysis

Application of transport policy

25. I have reviewed all the communication between Mrs A and the Council.
26. Mrs A and Child X had been relocated to a new property by her housing association because of domestic violence. Mrs A’s housing association provided evidence of this to the appeal panel.
27. The Council’s policy on school transport and domestic violence says that it will consider transport applications if applicants are in temporary housing. As Mrs A and her son were relocated to long term housing, she would not meet these criteria.
28. At the time of the appeal, Child X was on the pathway to be assessed for Autism Spectrum Disorder and Attention Deficit Disorder. He was on the SEN register at his school and had extra support. Mrs A provided evidence of his SEN needs and current pathway treatment.
29. As part of my investigation, I asked the Council what consideration it had given to Child X’s SEN. The Council could not produce any evidence or considerations it had made for Child X’s SEN.
30. The Council’s transport policy says an right to home to school transport exists where the following criteria is met:

• A child with an EHCP qualifies for home to school transport under the mainstream criteria outlined previously within this policy or
• A child attends their nearest suitable school* and meets the qualifying distance criteria outlined below:
• 2 miles or more for children below the age of eight.
• 3 miles or more for children aged eight and above.

31. Eligible children only qualify for free transport to the nearest qualifying school. This is defined as the nearest publicly maintained school, with places available, that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs that the child may have. For children with special educational needs, if a school is the only school named in a Statement of Special Educational Needs or Educational, Health and Care (EHC) Plan, this means it is the nearest suitable school for school transport.    
32. Child X does not have an EHCP and therefore is not entitled to school transport according to the Council’s transport policy.
33. However, due to the circumstances Mrs A and Child X, the Council used its discretion to provide support to Child X. In this respect, the Council has appropriately applied its transport policy.

Options for transport

34. In the decision letter sent to Mrs A, the Council agreed to provide discretionary support and told her she would receive one of the following options

• Public or contract transport on an existing vehicle
• A one off payment of £250 for you to make your own arrangements
• A one off payment of £150 for you to make your own arrangements
• A mileage allowance of 45p per mile to drive your child/ren to school

35. The letter sets out the most cost effective option will be given. For Mrs A, the most cost effective choice was public transport for Child X.
36. The Council at first decided to provide Child X with a bus pass, which would meet the criteria of the first option. However, Mrs A explained that Child X’s SEN would mean he could not use public transport.
37. The Council agreed to pay Mrs A the cost of a bus pass, which was £5 a week. Mrs A again stressed that this was not enough to bring Child X to his current school. She provided information about his SEN and information from the School about what support he was accessing.
38. The Council has said it does not have a responsibility to provide Child X with school transport, which is correct according to the policy. However, it has accepted that Child X needs support to access his education, hence the decision of discretionary support.
39. The letter sent to Mrs A, the application form and the Council’s policy use different wording for what a discretionary decision of travel will be. In its response to my draft decision the Council referred to the fuel allowance from its policy, however the policy also states that this is for eligible children, which Child X is not. The discretionary part of the Council’s transport policy is short and does not clearly set out which circumstances it considers for discretionary cases. It is not clear if the circumstances of a child with SEN but without an EHCP is considered under the discretionary part of the policy.
40. Additionally, the application form for transport says “the cheapest option may be provided", it does not say the cheapest option will definitely be given or how the Council will make the decision. It is my view that the Council has given three different variations of what transport will be given, without being clear which one Mrs A will receive.
41. As the award of transport in the case of Child X is given under the Council’s discretion, it is up to the Council to decide what award to give Child X according to the policy.
42. However, the Council has not been able to evidence a consistent approach to how it applies the discretionary travel criteria in the case of Child X. Therefore, the decision-making process by the Council was flawed, and the decision cannot be relied upon. The communication between the Council and Mrs A was also unclear and difficult for Mrs A to navigate the confusing information.
43. This was fault by the Council resulting in injustice to Child X. It has also caused injustice to Mrs A, who has been left feeling distressed and uncertain at whether her son is receiving the correct support.

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Agreed action

44. Within 4 weeks of my final decision, the Council has agreed to

• Write to Mrs A and apologise for the fault identified.
• Pay Mrs A £200 in recognition of the distress.
• Pay Mrs A £100 in recognition of the time and trouble taken to purse the complaint. Reconsider the request made by Mrs A for alternative transport options.
• If the Council reconsiders the request without fault and decides Child X should be receiving alternative transport, it should award a financial remedy in recognition of the time Child X was without suitable transport.
• If the Council decides that Child X should have been granted fuel costs, the Council should backdate Mrs A for the fuel costs from the date of the original application.

45. Within 12 weeks of my final decision the Council has agreed to

• Consider how it records considerations of applications made for school transport in exceptional circumstances. The Council should consider whether it is appropriate to record its reasoning for selecting a transport choice.
• Review how it communicates with those it grants discretionary travel to and consider a service improvement to make it clearer how the Council applies the discretionary travel criteria.

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Final decision

46. I have now completed my investigation. I find fault with the Council for failing to suitably consider Mrs A’s request for alternative transport. I also intend to find fault with the Council for not providing a consistent approach regarding its discretionary travel policy. This was fault by the Council causing Mrs A and Child X injustice.

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Investigator's decision on behalf of the Ombudsman