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East Sussex County Council (21 007 748)

Category : Education > School transport

Decision : Upheld

Decision date : 27 Apr 2022

The Ombudsman's final decision:

Summary: Mrs B complains about the Council’s decision not to award Child B school transport, causing him to be without transport he is entitled to. The Ombudsman does not intend to find fault with the Council for how it decided not to grant Child B transport. The Ombudsman finds fault with the Council for how it handled representations to the panel, and for how it communicated with Mrs B. However, the Ombudsman has found no further action is needed as the remedies and actions taken by the Council are proportionate to the fault and injustice.

The complaint

  1. Mrs B complains the Council has denied her son school transport without suitably considering his needs or the information provided.
  2. Mrs B complains this has left her son without school transport that he should be receiving, which has impacted his wellbeing and has caused her distress.
  3. Mrs B also complains about how the Council handled communication about her son’s transport, and that this caused further distress and uncertainty.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. 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. I considered Mrs B’s complaint and information she provided. I also considered information from the Council. I considered comments from Mrs B and the Council on a draft of my decision.
  2. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

  1. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools (Education Act 1996, 508B(1) and Schedule 35B).
  2. Eligible children include those who:
  • Live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above);
  • Receive free school meals, or whose parents receive the maximum Working Tax Credit, for transport to one of the three nearest schools up to a distance of six miles.
  1. The qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.
  2. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

What happened

  1. Child B has an Education, health and care plan and attends a specialist school for his needs.
  2. Previously, Child B lived at an address that was over three miles away from his school. Whilst living at this address, Child B was entitled to support from the Council to get to school.
  3. As well as an EHCP, Child B also had a blue badge and was in receipt of disability living allowance (DLA).
  4. Mrs B and Child B moved to a new address which was under three miles from Child B’s school.
  5. Mrs B wanted Child B to continue to have support from the Council to get to school. The Council denied the application for Child B to have support from the new address. The Council said this was because Child B was not an eligible child, and the Council had chosen not to use its discretion to provide support.
  6. Mrs B appealed the Council’s decision. The Council reviewed the appeal and decided that it did not uphold the appeal. The Council said that Mrs B could accompany Child B to school, and therefore it would not use discretion to provide support for Child B to get to school.

Analysis

Decision making

  1. As part of my investigation, I asked the Council to clarify whether the travel panel had access to Child B’s EHCP, blue badge application and DLA evidence.
  2. The Council confirmed that the panel was aware of the blue badge and DLA. It also confirmed that the panel had been provided with a link to Child B’s EHCP should the panel wish to view it. The Council also provided information from the officer responsible for the EHCP about Child’s circumstances.
  3. The Council also confirmed that it did not consult with Child B’s school during the process.
  4. Legislation says that Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. Eligible children include those who live beyond the statutory walking distance from the school, which is three miles for children aged eight and above.
  5. Child B was an eligible child when he lived at his previous address, which was over three miles from his school. However, when he moved addresses to a closer school, it meant that he was no longer an eligible child.
  6. Child B would have remained an eligible child if he could not walk to school due to medical or special educational needs. However, the travel panel reviewed all the evidence and determined that Child B could walk to school if accompanied. Therefore, Child B remained an ineligible child.
  7. This meant that it was at the Council’s discretion whether it should provide support for Child B to get to school.
  8. Part of Mrs B’s complaint is the Council had said she should accompany Child B to school and suggested equipment that may support him to get there.
  9. The Council recognised that Child B would likely be vulnerable on his own, and decided that Child B could be accompanied by Mrs B when walking to school.
  10. Statutory guidance says that when considering whether a child with SEND can reasonably walk to school, the Council can take accompaniment into account. Therefore, in this case, the Council decided it would be reasonable for Mrs B to accompany Child B. The Council said that as Mrs B did not put forward any medical needs or disabilities of her own, the Council could not see reason for her not to accompany him.
  11. 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.
  12. In this case, the travel panel were provided all the relevant information to consider Child B’s circumstances and needs. The Council then reached its decision based on all this information.
  13. I can see no fault in how the Council reached its decision as it has shown in considered the relevant information.

Mrs B’s right to present the case

  1. Part of Mrs B’s complaint is that she did not have the chance to present her case to the appeal panel.
  2. In response to my enquiries, the Council said that previously, the appellants could request to speak to an officer before the appeal and note would me made available to the panel. However, the Council has since recognised that in certain cases, this would have disadvantaged appellants.
  3. The Council has since reviewed how it allows appellants to make their case. It has since amended how it asks appellants if they wish to make a verbal representation at the meeting if they believe the will be disadvantaged otherwise.
  4. In this case, I do not consider that Mrs B was disadvantaged, as she could submit her views and information in writing and did not request to submit them verbally. I consider the changes the Council has made since Mrs B’s appeal to be a satisfactory remedy in this case.

Council’s communication after appeal

  1. Part of Mrs B’s complaint is about the communication she received after the appeal decision. Mrs B was sent communication that indicated her son would be receiving transport. When she tried to clarify this, she was told he would not be receiving transport.
  2. The Council has accepted there was maladministration in how it communicated with Mrs B after the appeal, and that Child B was accidentally left on the list for transport. This meant that Mrs B was sent communication about transport.
  3. The Council has since apologised to Mrs B and has reviewed the procedure and made changes to the process to ensure it does not happen again.
  4. It is my view that while there was fault by the Council, the remedy and service improvements already carried out by the Council are proportionate outcomes for this part of Mrs B’s complaint.

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Final decision

  1. I have now completed my investigation. I find no fault with the Council for how it decided whether to provide Child B with school transport. I find fault with the Council for how it managed representations to the panel, and for its communication with Mrs B. However, no further action is needed as the remedies and actions already taken by the Council were proportionate to the fault and injustice.

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Investigator's decision on behalf of the Ombudsman

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