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London Borough of Enfield (21 007 518)

Category : Education > School transport

Decision : Upheld

Decision date : 25 Mar 2022

The Ombudsman's final decision:

Summary: Miss X complains the Council failed to properly consider her medical conditions and disabilities before it decided not to award her child school transport assistance. The Council was at fault because the panel failed to follow the appeal process in line with statutory guidance. This has caused Miss X distress, uncertainty and frustration. The Council will take action to remedy the injustice caused.

The complaint

  1. Miss X complains the Council failed to properly consider her medical conditions and disabilities before it made its decision not to award her child, Z, school transport assistance.
  2. Miss X says as a result, the matter has led to financial loss and has made her mental health worse. She also says Z gets to school late and misses out on school and education.

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The Ombudsman’s role and powers

  1. 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)
  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)
  4. 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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How I considered this complaint

  1. I have discussed the complaint with Miss X and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
  2. I considered relevant legislation and statutory guidance on home to school transport assistance. I also considered a Focus Report we issued in March 2017 called “All on board? Navigating school transport issues”.
  3. I sent Miss X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Legislation and Guidance

Eligibility for free school transport

  1. The Education Act 1996 says councils must provide free school transport to eligible children. The term ‘eligible’ means children of compulsory school age who meet certain criteria.
  2. The eligibility criteria include children who live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above).
  3. Local authorities must publish general arrangements and policies in respect of home to school travel and transport for children of compulsory school age. Councils are required to publish a complaints or appeals procedure as part of the transport policy statement.
  4. 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.
  5. 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 verbal representations to the panel.
  6. 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 the Local Government Ombudsman.

Council’s home to school transport policy and appeals process

  1. ‘‘All applications must meet the essential criteria of age; distance; qualifying school…’’
  2. In addition, applicants must meet at least one of the other additional criteria set out in the policy. This includes:
  • ‘‘special educational needs, disabilities or mobility issues (including temporary medical conditions)
  • low income e.g. if a family is in receipt of maximum rate of working tax credit or the pupil is eligible for means-tested free school meals
  • need to be accompanied……’’
  1. Eligibility for and provision of travel assistance will only be considered on receipt of a fully completed application with supporting evidence.
  2. Our Travel Assistance Assessment Panel will consider all applications to determine eligibility. If any additional supporting evidence is required for us to assess the case, we will contact the applicant to request this, explaining the reason why the information is needed.
  3. We will also undertake appropriate secondary checks both on evidence provided and against Council records to determine family income and circumstances. Applicants will be informed of the panel’s decision.
  4. Applicants can appeal against any decision the Council makes regarding their travel assistance. There is a two-stage appeal process:
  • Stage 1 - applicant’s appeal will be reviewed by a Senior Council Officer who was not part of the original decision-making panel.
  • Stage 2 – applications will be considered by an Independent Review Panel. This is the final stage of the appeals process but if the applicant remains dissatisfied, they may also take the matter to the Local Government Ombudsman.
  1. Applicants also have a right to apply for a judicial review.

What happened

  1. This chronology includes key events and does not cover everything that happened.
  2. Miss X is a single parent who moved to the Council’s area following an issue of domestic violence.
  3. Miss X has some physical and mental health conditions.
  4. In June 2021, Miss X applied for school transport assistance for her child, Z. The application was based on the following grounds; distance to school, need to be accompanied, low-income household and medical condition. Miss X explained due to her medical conditions and disabilities, she struggled to regularly take Z to school and she was always late for school. She said Z received free school meals. Miss X said she was on benefits but she was struggling financially because she used taxies and sometimes buses to get Z to school. Miss X said she had no relatives in the area who could support her. She said she was concerned Z was missing out on school and would like the Council to support her with Z’s school transport.
  5. The Council refused Miss X’s application because it found Z did not meet the school transport assistance eligibility criteria. Its reasons were that Z; had no special educational needs, she did not meet distance criteria, there was no evidence to show Z’s eligibility for free school meals and no evidence of Miss X’s medical needs. The Council informed Miss X of its refusal decision and it advised her of her appeal rights.
  6. In July 2021, Miss X asked the Council to review its decision not to award Z school travel assistance. Miss X explained she suffered from severe mental health issues which led to Z being put on the child protection register. Miss X said she struggled to get up in the mornings to take Z to school. She said Z’s school was not within walking distance to their home and that the frequency of buses were low. Miss X said she received several letters from Z’s school about its concern with Z’s punctuality. Miss X said she was worried Z was missing out on education which was putting immense strain on her health. Miss X submitted her medical information in support of her application.
  7. On 13 July 2021, the Council contacted Z’s school. The Council said it established Z was not on the child protection register. It confirmed the school had written to Miss X about Z’s attendance and punctuality and that Miss X blamed the issue on traffic and buses. Z’s school said it was of the opinion there was no reason Miss X could not get Z to school on time. The school said Miss X had accepted a place for Z at summer holiday club which would run from 8am to 6pm. It said Miss X confirmed she would be able to get Z to the club for 8am.
  8. At the stage 1 appeal process, two Council staff reviewed Miss X’s application. The minutes of the meeting listed the documents provided for consideration at the stage 1 meeting. These included, Miss X’s application form, her appeal request, her medical notes and the notes from the telephone conversation the Council had with Z’s school. The Council upheld its initial decision not to award Z school transport assistance based on the reasons it previously highlighted. It further explained Z’s school was 1.2 miles from her home, a 24 minutes’ walk and a total of 25 minutes travel time by bus. It said Z did not meet the distance and eligibility criteria for home to school transport assistance.
  9. The Council issued Miss X its decision letter. It informed Miss X if she remained dissatisfied with its decision, she could escalate her case to the director of education whose decision would be final. And after the final appeal decision, Miss X could refer the matter to the Council’s complaints procedure.
  10. On 26 July 2021, Miss X’s case was considered at the Council’s stage 2 appeal process by the director of education and its decision letter was sent to Miss X. The Council said it considered the evidence Miss X previously provided, and the reasons and rationale the Z’s school travel assistance application was refused. The Council said it had followed proper procedure and it upheld its initial refusal decision. It explained there seemed to be no evidential reasons why Miss X could not walk Z to school or take the bus. The Council said if Miss X remained dissatisfied with its decision, she could complain to the Ombudsman.
  11. Miss X made a complaint to the Ombudsman. She complained the Council failed to properly consider her medical conditions and disabilities before it decided not to award Z school transport assistance.
  12. In November 2021, the Council contacted Z’s school again. The Council confirmed Z travelled to school by taxi and that the school said Miss X blamed the traffic when they were late. The school confirmed Z attended the 3‑weeks summer club with a start time of 8am although it was a flexible start. It said Z never arrived at the club at 8am but she arrived at various times between 8:30am and 9:30am. The school said sometimes Z’s grandmother also brought her to school.
  13. In response to our enquiries, the Council maintained Z did not meet the eligibility criteria for school transport assistance in line with its policy. It said Miss X did not submit any medical evidence for her health conditions and disabilities when she made her application in June 2021. It said the medical note Miss X submitted at the stage 1 appeal process was dated March 2020 which was 15 months before she made the school transport assistance application. The Council explained Miss X provided no other medical evidence and/or any recent medical evidence for her health conditions and disabilities. It said Miss X did not provide evidence Z was in receipt of free school meals at the stage 1 appeal process. The Council confirmed a senior council officer who was not involved in making the original decision on Miss X’s application considered her case at stage 1 appeal process. It said the stage 2 appeal was considered by the director of education.

Analysis

  1. We expect councils to follow the relevant statutory guidance unless there is a good reason to depart from it. In this case, at stage 2 of the Council’s appeal process, Miss X’s case was considered by the director of education who made the final decision. I do not consider one person can constitute a panel in line with the guidance. This was fault. The Council departed from the guidance, and it failed to provide adequate reasons for departing from it when it responded to our enquiries. As a result, Miss X has not had the benefit of an independent consideration of her case which the panel would have provided.
  2. I note the decision letter from the director of education was very brief. The letter gave no indication of how the evidence was considered, details of information about other departments and/or agencies it consulted, for example Z’s school, before it reached its decision. This was not in accordance with the statutory guidance which states councils must issue detailed decision letters to applicants. This was fault. It caused Miss X distress, uncertainty and frustration.
  3. Also, the guidance states parents should be able to make both written and verbal representations to the appeal panel. But the Council failed to give Miss X the opportunity to make verbal representations. This was fault. I consider if the Council had given Miss X this opportunity, it would have allowed the Council to make a more informed and robust decision. In particular about its conversation with Z’s school in relation to the 3-weeks summer school Z attended and the drop off hours and means of transport Miss X used to take Z to school during the period.
  4. The statutory guidance on a two-stage appeals procedure is to ensure a consistent approach across all local authorities and to provide an impartial second stage for cases that are not resolved at the first stage. Therefore, the Council failed to properly deal with Miss X’s appeal. I cannot say what the outcome would have been if there had been proper consideration, so the Council should now arrange for a properly constituted panel to consider Miss X’s appeal.

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Agreed action

  1. To remedy the injustice caused by the faults identified, the Council has agreed within one month of the final decision to:
  • apologise in writing to Miss X for the distress, uncertainty and frustration caused for failing to conduct the appeal process in line with statutory guidance
  • arrange an independent stage 2 appeal panel to consider Miss X’s appeal. Ensure Miss X is allowed an opportunity to give verbal representations
  • if the appeal is upheld and the decision is based on the same circumstances that applied at the time of the original stage 2 decision on 26 July 2021, the Council should refund Miss X’s cost in providing home to school transport for Z since then
  • by training or other means remind staff of the importance of following the statutory appeal process guidance when dealing with school transport assistance. For example, allow parents to make verbal representations to the appeal panel.

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Final decision

  1. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman

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