Summary: Fault by the Council put Miss X’s disabled child at risk of harm on home to school transport. The Council has agreed to apologise, pay £1,500, and take action to improve its service.

The complaint

1. Miss X complains that the Council failed properly to safeguard her disabled child on home to school transport. In particular, the Personal Assistant’s failure to sit in the back seat put her child at risk of harm.
2. As a result, Miss X says her child was assaulted by another passenger on a journey to school in September 2019.

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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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)

Back to top

How I considered this complaint

6. I spoke to Miss X and considered the information she provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Home to school transport

10. Councils have a duty to provide free home to school transport for pupils of compulsory school age in certain circumstances. This transport must be suitable.
11. Statutory guidance for local authorities says that for arrangements to be suitable “they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.” (Home to school travel and transport guidance, 2014)

What happened

12. Miss X’s child, whom I shall call Z, has a disability. Z’s disability affects communication and sensory processing, among other things.
13. In 2019, Z travelled to school in a taxi with two other children with disabilities. The children were accompanied by a Passenger Assistant (PA), provided by the taxi company. The taxi company had a contract with the Council to provide transport on its behalf.
14. On a particular day in September 2019, Miss X says the PA told her as Z was being dropped of that Z and another child had been “proper going for it”. Miss X says there had been other such reports since the beginning of term.
15. The same day, the school notified Miss X that Z had injuries. The most significant of these was a broken front tooth. Miss X says the school told her that the Site Manager had witnessed an altercation between Z and another child in the taxi that morning. The school said it believed the injuries had occurred during this altercation.
16. Miss X complained to the Council in October.
17. The Council’s stage 1 response says that as the PA was not sitting in the back of the vehicle with the children, the altercation wasn’t witnessed. The Council’s contract with the taxi company requires PAs to sit in the back.
18. The Council also requires drivers and PAs to report to it any incidents or accidents during the journey. The taxi company had reported incidents since the beginning of term to Miss X but not the Council.
19. As a result, the Council said it would issue a contract warning to the taxi company. It also said it would provide further training to the drivers and PAs.
20. Miss X asked the Council to consider her complaint at stage 2. In response, the Council confirmed that the taxi company had failed in its contractual obligations. However, it did “not believe it can be established with absolute certainty that these injuries occurred during the taxi journey on the morning.”
21. It said “the headteacher reached the conclusion that it must have happened in the taxi because the Site Manager had witnessed the children in an altercation. It is entirely possible that the injuries happened as a result of that altercation but it is not possible to draw that conclusion with any degree of certainty”.

My findings

22. Where the complainant claims injury or harm to health as the main injustice, this is usually a matter for the courts to decide. But sometimes it is appropriate to acknowledge the impact of the fault has included harm, or risk of harm. Such harm, or risk of harm, can arise when the complainant, because of fault by the council, did not receive services intended to provide protection.
23. The PA’s failure to sit in the back with the children was fault. This put Z at risk of harm.
24. The Council says it cannot say with “absolute certainty” that Z’s injuries occurred because of an altercation on the journey to school. This is the wrong standard of proof. The correct standard of proof is “balance of probabilities”. This means the Council should have considered whether it was more likely than not that Z was injured during the journey to school.
25. Given the incidents reported to Miss X since the beginning of term, the altercation witnessed by the Site Manager at the school, and the photographs of Z’s injuries Miss X provided, the Council should have been able to say what it thought was more likely to have happened.
26. On balance, it seems more likely than not that Z sustained injuries on the journey to school. Had the PA been sat in the back, as required, this could have been prevented. This is an injustice to Z.
27. The Council says the taxi company failed to report previous incidents, as required by its contract. It says that had the provider reported the earlier incidents, it would have “acted swiftly and addressed the issue”. The failure of the provider to report incidents to the Council is fault. However, the contract does not say how the transport provider should report such incidents to the Council.

Back to top

Agreed action

28. To remedy the injustice to Z from the faults I have identified, the Council has agreed to:
• Apologise to Miss X
• Pay Miss X, for the benefit of Z, £1,500
29. The Council should take this action within four weeks of my final decision.
30. The Council should also take the following action to improve its service:
• Implement a mechanism, such as a form or email address, for transport providers to report incidents or accidents during home to school transport to the Council.
31. The Council should take this action within three months of my final decision.

Back to top

Final decision

32. I have completed my investigation. The Council is at fault. The action I have recommended is a suitable remedy for the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman