Summary: Mrs X complains about the Council’s decision not to provide school transport to her child, Y who has special education needs. The Council was at fault for not considering Mrs X and her family’s circumstances and fettering its discretion to assist a disabled person with accessing education. Since making her complaint to us, the Council has acted to resolve the personal injustice caused to Mrs X and her child. The Council has also agreed to review its policy and remind relevant staff of its duties under the Chronically Sick and Disabled Persons Act 1970.

The complaint

1. The complainant, who I have called Mrs X, complains about the Council’s decision not to provide school transport for her child, Y, who has special education needs. Mrs X says the Council has not considered her family’s circumstances and as a result, Child Y has been missing out on over an hour of school each day while Mrs X takes her four other children to two different schools. Mrs X says her family cannot afford wrap around childcare to give her sufficient time to take all her children to school. She also feels it is unreasonable for the Council to expect Child Y to walk to school when she believes the shortest route could be unsafe.

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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. I have spoken to Mrs X and considered the information she has provided in support of her complaint.
5. I have considered the information the Council has provide in response to my enquiries. The Council has not however provided all the information I have requested.
6. Mrs X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
7. 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.

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What I found

Relevant guidance

8. Section 508B of Education Act 1996 says councils must provide free home to school transport for eligible children of statutory school age to qualifying schools.
9. Councils must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘Eligible children’ include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

10. S.508C of Education Act 1996 gives councils discretionary powers to provide transport where they consider it necessary for the purpose of facilitating attendance of children not eligible under s.508C at any ‘relevant educational establishment’. A ‘relevant educational establishment’ includes a school where the child is a registered pupil. Such transport does not have to be free of charge.
11. If a council decides not to provide discretionary transport from its education transport budget, there may be a social care duty under s.2(1)(c) Chronically Sick and Disabled Persons Act 1970 (CSDPA) to provide ‘assistance to [a disabled person] in taking advantage of educational facilities available to him’. This duty arises where it is ‘necessary’ for the Council to provide a service under CSDPA to meet a person’s needs.

What happened

12. Child Y has special education needs and is supported at school with provision set out in the Education Health and Care Plan (EHCP). In September 2020, Child Y was due to attend the secondary school (School Z) named on the EHCP.
13. In June 2020, Mrs X applied for school transport in preparation for Child Y attending School Z, which the Council declined. Mrs X made her first appeal against the Council’s decision to refuse school transport in early August 2020. Mrs X explained that taking her other four children to two different schools meant that she had to take Child Y to school later in the morning and collect them from before the school day had ended. As a result, Child Y was missing over an hour of each school day. Mrs X said she had no other childcare support as her husband was at work by the time her children needed to go to school and her family’s low income meant they could not afford to pay for childcare.
14. The Council responded to Mrs X’s appeal on 17 August 2020. It explained walking route to School Z was less than the ‘statutory walking distance’ and the transport of other children to school was not a valid reason for the Council providing school transport to Child Y. The Council also explained the collection times for arranged transport near Mrs X’s home to School Z coincided with the time she needed to take her other children to school and would therefore not solve the problem. The Council suggested Mrs X considered wrap around childcare for her other children to give her the time to take Child Y to school. The Council advised Mrs X of her right to appeal the first stage outcome with an independent review panel.
15. Mrs X made a further appeal against the Council’s decision at the end of September 2020. She argued the Council’s suggested walking route to School Z was unsafe for Child Y to use unaccompanied because of their special education needs. Mrs X reiterated her concerns about the school time Child Y was missing out on each day. Mrs X provided a letter of support from School Z which explained the risks and concerns it had with the Council suggesting Child Y walked to school and the impact of starting late and leaving early on Child Y’s anxiety levels. Child Y’s general practitioner (GP) also wrote to support Mrs X’s appeal, which explained that Child Y’s diagnoses prevented them from walking to school.
16. The Council’s independent review panel considered Mrs X’s second appeal on 4 November 2020. The Council invited Mrs X to the appeal hearing, but she was unable to attend. The panel took the view Child Y was not eligible for school transport because they lived within walking distance of School Z and that Mrs X would need to make her own arrangements for childcare of her other children to give her the time needed to take Child Y to and from school. The panel noted that afterschool childcare was not available during the COVID-19 Pandemic and that travel training might be of help to Child Y. The panel also considered that Mrs X’s older children might be able to support by collecting their younger siblings from school while she collected Child Y. The panel also voiced concerns about who would be at home with Child Y when Council-arranged transport collected children to go to and from School Z. The panel unanimously decided the decision to refuse Mrs X application and appeals was correct as panel members felt she had other options to explore.
17. The Council wrote to Mrs X on 10 November 2020 to confirm the panel’s decision to uphold the decision to refuse school transport for Child Y. The letter signposted Mrs X to the Ombudsman if she remained unhappy with the outcome. Mrs X brought her complaint to us in June 2021.

Was there fault causing injustice?

18. The Council has followed the statutory guidance by providing a two-stage appeal process. It also afforded Mrs X the opportunity to attend the second stage appeal hearing in person to present her case, in line with statutory guidance.
19. Since Mrs X escalated her complaint to us and our initial enquiries, the Council has offered to resolve the issues she encountered. The Council has offered to provide school transport for Child Y, apologise and make a payment of £100 to Mrs X as a gesture for the difficulties she experienced. The Council said it would also review its existing school transport policy. Mrs X has since accepted this offer and appears satisfied with this outcome. The Council has confirmed its review of the school transport policy has been completed and it intends to make no changes as a result.
20. While I commend the Council for its early offer to remedy the injustice Mrs X has experienced, I have concerns about the way in which the Council handled Mrs X’s application and appeals.
21. The Council’s consideration of Mrs X’s application and appeals overlooks its duties under the CSDPA. The Council was at fault for fettering its discretion to provide school transport in cases where the child is not normally eligible but requires support to access education. Child Y was missing out on a considerable amount of education cumulatively because Mrs X was unable to be in three different places (her children’s schools) at the same time. This no doubt caused a negative impact on Child Y’s existing anxiety and their ability to fully access the support they were supposed to receive as part of their EHCP.
22. The Council’s letter explaining the outcome of Mrs X’s second appeal fails to provide any meaningful details about why the panel felt the refusal decision should not be overturned. The lack of clarity in the Council’s explanation is fault as it created unnecessary uncertainty for Mrs X.
23. The Council’s school transport policy includes reference to the relevant legislation and statutory guidance that underpins the Council’s decision-making in this area. It is disappointing the Council did not use its latest review of that policy to include a reference to CSDPA and its discretionary powers under this legislation. The Council has agreed to my recommendation to take further action to address this issue below.

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Agreed action

24. I am satisfied with the action the Council has taken to remedy the personal injustice Mrs X experienced. However, I recommend the Council should, within one month of the final decision, include reference to its discretionary powers under s.2(1)(c) Chronically Sick and Disabled Persons Act 1970 to its school transport policy and reminds relevant staff, including independent review panel members, of this duty. The Council has agreed to take this action.
25. The Council should provide us with evidence when it has completed the above action.

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Final decision

26. I have completed my investigation and uphold Mrs X’s complaint. There was fault by the Council, which caused injustice to Mrs X and Child Y, which it has taken appropriate action to remedy. Following my investigation, the Council has agreed to take further action to review its policy and remind its staff.

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Investigator's decision on behalf of the Ombudsman