Essex County Council (21 004 127)

Category : Education > School transport

Decision : Not upheld

Decision date : 19 Jan 2022

The Ombudsman's final decision:

Summary: Mrs B says the Council unreasonably refused to award school transport to and from her son’s childminder’s address and, in doing so, failed to make a reasonable adjustment. There is no fault in how the Council considered Mrs B’s application for school transport.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complained the Council:
    • unreasonably refused to award school transport to and from her son’s childminder’s address; and
    • failed to properly consider her son’s disability and make a reasonable adjustment.
  2. Mrs B says fault by the Council means she now has difficulty transporting her children to school.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  2. 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

  1. As part of the investigation, I have:
    • considered the complaint and Mrs B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided.
  2. Mrs B 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

What should have happened

  1. The Council’s Education Transport Policy (the policy) says it will provide free home to school transport for children of compulsory school age to the nearest available school for their home address who meet the 'qualifying distance' criteria which are:
    • 2 miles or more for children below the age of eight;
    • 3 miles or more for children aged eight and above.
  2. The policy says the Council has a duty to transport eligible children to and from their main place of residence to their appropriate educational placement to allow attendance during normal school hours.
  3. The policy says transport will not be provided for additional provision outside of what is named in the education, health and care plan (EHCP). The policy provides a list of non-statutory provision which includes transport to childminders before, during or after school hours.
  4. The policy says appeals will be considered by an officer senior to the previous decision maker in a two part process:
    • Stage 1 - consideration will be made by an officer more senior than the previous decision maker.
    • Stage 2 - a full and final decision will be made by an officer more senior than the officer that considered the first stage appeal.
  5. The policy says where a parent feels he or she is unable to fully and clearly make their case in writing at the second stage of appeal, they may request a telephone or in person appointment with the second stage decision maker to explain their case orally. There should still be a written appeal submitted by the parent (or their representative) as their grounds for reconsideration at the second stage of appeal.
  6. In July 2014, the government issued its Home-to-school travel and transport statutory guidance (the guidance). Councils must take account of this statutory guidance when setting their transport policies. The guidance recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child's eligibility for travel support:
    • Stage 1: review by a senior officer; and
    • Stage 2: review by an independent appeal panel.
  7. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. Appeal panel members should be independent of the original decision-making process but do not have to be independent of the Council.
  8. The 2014 guidance says:
    • Previous guidance made clear local authorities should have in place and publish their appeals procedures but left it to the individual authority to determine how this should operate in practice. We are now recommending local authorities adopt the appeals process set out above. The intention is to ensure a consistent approach across all local authorities, and to provide a completely impartial second stage, for those cases not resolved at the first stage.

What happened

  1. Mrs B’s son has special educational needs. Mrs B applied for school transport for her son. The Council awarded transport from the home address and confirmed that ‘home’ is considered to be where the child is habitually resident.
  2. Mrs B asked the Council to consider providing transport to and from the childminder’s address as she had two children attending different schools and needed wraparound childcare to enable her to work. Mrs B told the Council the childminder lived closer to the school than the home address. The Council told Mrs B it could only provide transport to the registered home address and suggested she contact the operator of the transport to make a private arrangement.
  3. Mrs B appealed. The Council refused the appeal and pointed out it would only award transport from the address at which a child is habitually and normally resident. The Council advised Mrs B though she could contact the operator of the transport to see whether a pickup from an alternative address could be arranged but that would be at the operator’s discretion and Mrs B would have to do ask the operator whether it would charge for that service.
  4. Mrs B submitted a stage two appeal. The Council refused the appeal, referring to its transport policy. The Council noted the arguments Mrs B put forward but advised of its view those reasons were not exceptional to warrant a departure from the Council’s transport policy.
  5. Mrs B contacted the Council again as she felt that the Council should have considered her request as a reasonable adjustment. The Council advised its appeals process was now completed and directed Mrs B to the Ombudsman.

Analysis

  1. Mrs B says the Council unreasonably refused to consider awarding school transport to and from the childminder’s address for her son. Mrs B says in reaching that decision the Council failed to consider her son’s specific circumstances or consider making a reasonable adjustment.
  2. As I said in paragraph 3, the Ombudsman’s role is to consider the administrative process by which the Council makes its decisions. It is not for the Ombudsman to comment on the merits of that decision unless there is evidence of fault in how the Council has reached it. In this case I am satisfied the Council considered Mrs B’s representations at stage one and two of its appeal processes. I am satisfied the letter refusing the appeal following stage two made reference to the Council’s policy and also the representations Mrs B had made about her son’s specific circumstances and why he needed transport from the childminder’s address. The letter to Mrs B made clear the Council did not consider the arguments she had put forward constituted exceptional circumstances which would warrant a departure from the Council’s policy. In those circumstances I could not say the Council failed to consider Mrs B’s arguments or her son’s circumstances as they are referred to in the appeal decision letter. The issue is therefore that Mrs B does not agree with the Council’s decision about whether she has exceptional circumstances to warrant a departure from the Council’s policy. As the Council has reached its decision after following the right steps and considering the relevant evidence though it is not a decision the Ombudsman can criticise. That is the case no matter how much Mrs B disagrees with it.
  3. In reaching the view that the Council has considered the appeal properly I am aware the process the Council uses is different to that recommended in Government guidance as it does not arrange an independent panel for stage two appeals. I am satisfied that is a matter the Ombudsman has previously considered. The Ombudsman is satisfied the Council has provided clear reasons for departing from the guidance and is therefore not at fault for its transport appeal arrangements.

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Final decision

  1. I have completed my investigation and do not uphold the complaint.

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Investigator's decision on behalf of the Ombudsman

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