Summary: Mr B complained the Council failed to provide his daughter with appropriate transport to and from school. He said that as a result she missed school as she was not been able to get there without the appropriate transport. There was fault and the Council will arrange a fresh appeal hearing to remedy the injustice to Mr B. It will also review its procedures.

The complaint

1. I call the complainant Mr B. He complained the Council failed to provide his daughter with appropriate transport to and from school. He said that as a result she missed school as she was not been able to get there without the appropriate transport.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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. 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

5. I considered the complaint and documents provided by Mr B and spoke to him I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr B and the Council and considered their comments.
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

What I found

Summary of the relevant law and guidance

7. Statutory guidance on home to school transport sets out a recommended appeals procedure for councils to follow. It says, “The intention is to ensure a consistent approach across all local authorities, and to provide an impartial second stage, for those cases that are not resolved at the first stage.” Parents may challenge decisions about the transport arrangements offered, their child’s eligibility, the distance measurement from home to school and the safety of the route.
8. The guidance recommends a two-stage procedure for school transport appeals.
• Stage 1: review by a senior officer. A parent can ask for a review within 20 working days of receiving the council’s decision. A senior officer should respond within 20 working days and tell the parent the council’s decision.
• Stage 2: review by an independent appeal panel. A parent can ask to escalate their appeal within 20 days of receiving the council’s response at stage one and an appeal panel should take place within 40 working days of the request. The guidance recommends the parent should be able to make both written and oral representations to the panel.
9. At both stages of the appeals process, the decision should set out:
• the nature of the decision reached;
• how the review was conducted;
• information about other departments and/or agencies consulted;
• what factors were considered;
• the rationale for the decision; and
• how to escalate the appeal to the next stage, including when a parent can approach us.

Our Focus Report on school transport

10. In March 2017 we issued a Focus Report called “All on board? Navigating school transport issues”.
11. In the report, we highlighted a range of issues, including that for children with special educational needs and disabilities, councils should ensure not just their mobility but any health and safety difficulties associated with their special educational needs or disability are considered.

The Council’s home to school transport policy

12. The Council’s policy is that it will, in the first instance, offer travel assistance budgets (TABs) for children who are eligible for travel assistance because of their special educational needs. The aim of a TAB is to support families to take their own children to school, reduce journey times, and/or to support the independence of the young person and enable them to become independent travellers. It also gives parents/carers the flexibility to choose the mode of transport that suits their prevailing circumstances as the budget allows them to switch from one mode of transport to another.
13. The policy says parents and carers have a legal responsibility to ensure that their child attends school and are expected to take their children to school themselves wherever possible. Many families have complex childcare and employment patterns. It is not within the framework of the policy to provide travel assistance simply because the complexity of those arrangements makes it challenging for parents or carers to take their child to school. The policy sets out the travel assistance available in cases where a child or young person cannot be reasonably expected to travel to school safely on account of their special educational needs/disability.
14. The policy lists the factors the Council will take into account where there is a request for bus, taxi or other direct provision:
• Parental disability which would make it impossible or unreasonably difficult for the parent to take the child to school;
• The severity of the child’s special educational needs/disability – especially where there are complex physical disability/medical needs which might make it impossible or unreasonably difficult for the child to walk or use public transport to get to school; where the child presents a danger to him/herself or others;
• Where a parent’s employment would be jeopardised because of having to transport children to different schools and it would be impossible or unreasonably difficult for the family to make alternative arrangements.
15. The policy goes on to say the Council may transport children on a private bus which will be specially adapted to meet the needs of those travelling on them. Escorts are provided for all buses used to transport children with EHCPs. Parents must expect their child to travel with other children wherever appropriate to do so.
16. The Council may transport pupils in separate taxis based on the assessed needs of the child or young person. Escorts will not automatically be provided in every vehicle; it will only be where it is deemed necessary for the care of children or young people and/or the safe operation of vehicles. This will be determined at the point the request for travel assistance is made and reviewed annually.
17. Decisions on requests for transport are made by special education needs (SEN) travel panel. Requests for a review of the decision are first considered by a service manager. If the parent/carer remains dissatisfied they can make further representations and they will be considered by the head of service. If they remain unhappy they can make a complaint

What happened

18. Mr B’s daughter, X, has an education, health and care plan (EHCP). She is on role at a specialist school to meet her needs and started there in September 2019. She was travelling to school on a bus with other children with an escort on the bus. Schools then closed in March 2020 due to the COVID-19 pandemic.
19. I am not certain when X returned to school but in December 2020 it was agreed that a taxi would be provided to enable a phased return to school. But the Council’s position was that she would return to using the bus when she was back at school full-time.
20. In January Mr B said bus transport was not suitable for X as it did not provide sufficient support for her. He said her needs had changed and she needed more support. He said that a budget for his and his wife to make their own transport arrangements was not suitable as they could not go with her to school because of their own health issues. And there were no friends or family who could escort her.
21. The SEN transport panel considered the request at the end of January. It decided there were no grounds to say the bus was not suitable. It said that it had been in touch with the school who said there were no concerns when X arrived in school and the bus company had not reported any incidents. Therefore bus transport was appropriate.
22. Mr B appealed against that decision and an officer decided the decision should remain unchanged.
23. Mr B appealed again. The Council decided to offer a place in a shared taxi with an escort for two months to help X transition back into school. Mr B was not satisfied by this so asked for a further review. The Council offered an enhanced travel budget. That was enough to pay for a taxi four times a day to and from the school so that the parents or a family member, of friend, could travel with X and return home.
24. Mr B did not consider that was suitable because of his and his wife’s medical needs and sought to challenge it with the Council. He was directed to the complaint process but then the Council decided he should come to us.

Analysis

25. It is not our role to decide on what is the appropriate transport provision for X. We are considering whether the Council has considered the matter properly and without fault.
26. The crux of the matter is that Mr B considers the only suitable transport for X is in a taxi with an escort. The Council’s position was that bus transport is suitable but it did, exceptionally, offer a payment so that Mr and Mrs B caould make their own taxi arrangements. But that did not include for an escort.
27. The Council did not follow the proper process in reaching this decision and considering Mr B’s appeal. The statutory guidance is clear on how appeals should be conducted. The first stage is a review by a senior officer. That happened here and the decision explained how it had been reached and what the next stage was. The second stage should have been consideration by an independent appeal panel which would consider written and verbal representations by the parent. The guidance states that the members of the panel should be independent of the original decision making process but do not have to be independent of the local authority.
28. Here the second stage was considered by the head of service and an assistant director who the Council said do not sit on the panel that made the original decision. This is in not accordance with the guidance. Two people could not constitute a panel as it would not be clear what would happen if there was a disagreement between them. Especially where one is senior to the other. Nor could the head of service be considered to be independent. And the guidance states that parents should be able to make verbal representations which there is no provision for in the Council’s process.
29. So Mr B’s appeal was not dealt with properly and the Council’s policy is flawed. I cannot say what the outcome would be if there had been proper consideration so the Council should now arrange for a properly constituted panel to consider Mr B’s appeal.
30. There was further fault in what happened after the appeal. The letter conveying the decision did not direct Mr B to us as is recommended in the guidance. Instead, when Mr B wrote further, it was registered as a complaint but it was then decided that it could not be so considered.

Back to top

Agreed action

31. The Council will:
• Arrange an independent appeal panel to consider Mr B’s appeal. If the outcome of that appeal is for a different award of transport the Council should consider what other remedy would be needed. If agreement cannot be reached then Mr B can make a further complaint to us;
• Review its school transport appeal arrangements to ensure that it accords with the statutory guidance. It should send us a copy of the revised procedure.

It should complete the first bullet point within a month of the final decision and the second within two months.

Back to top

Final decision

32. There was fault which caused injustice.

Back to top

Investigator's decision on behalf of the Ombudsman