Summary: the Council was at fault in avoidably delaying for six months in arranging an appeal at stage 2 of the transport appeals process. This fault caused Ms B injustice in the form of frustration, uncertainty and time and trouble as she had to complain to this office to have the matter resolved. The Council will take the agreed action to recognise this injustice and to avoid repeating the same faults in future.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains the Council has failed to deal properly with her request for a stage 2 appeal following the rejection of her stage 1 appeal for home to school transport for her daughter, X, in April 2021. Ms B says she submitted two letters requesting this stage 2 appeal on 13 and 31 May 2021 but no action was taken to arrange a stage 2 appeal or any reply made to these requests.

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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 considered the written information Ms B provided with her complaint and offered her the opportunity to discuss her complaint with me. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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.

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What I found

What should have happened

The relevant law

7. Local authorities have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances (s508B and Schedule 35B of the Education Act 1996).
8. The 2014 statutory guidance on home to school transport sets out a recommended two-stage appeal procedure against decisions not to provide transport. It says this is to ensure a consistent approach across all local authorities and to provide a completely impartial second stage. The two-stage process recommended is:

• Stage 1: review by a senior officer provided within 20 working days of the request; and
• Stage 2: review by an independent appeal panel. A parent has 20 working days to submit a request to escalate the matter to stage 2 after receiving the stage 1 appeal outcome. An independent appeal panel then considers the representations within 40 working days and provides a written outcome within 5 working days.

9. The Guidance says the panel should consider “written and verbal representations from both the parent and officers involved in the case”. Councils should make it clear that there is a right to complain further to the LGSCO.

The Council’s policy

10. This states that if an application for travel assistance is not approved the Council offers a right of appeal. The Council operates a two-stage appeal process. At stage one the appeal is a review by a manager who will notify the parent or carer of the outcome within 10 working days of receipt of the appeal form.
11. If the parent or carer remains dissatisfied the appeal moves to stage two where it will be reviewed by the Council’s Education Awards (Review) Sub-Committee). A decision will be made within 30 working days of receiving the stage two request.

What happened

12. In May 2021 the Ombudsman issued a decision on a previous related complaint submitted to us by Ms B. Our finding on that complaint was that the Council was at fault because it delayed in holding an appeal at stage 1 of the appeals process from the time it was submitted in September 2020 until April 2021. The Council apologised to Ms B for this delay but we found there was no injustice beyond frustration as when it did consider this appeal the Council correctly decided that Ms B’s child did not automatically qualify for transport. We told Ms B and the Council that Ms B could request a further appeal at stage 2 of the appeals process.
13. The Council confirms that Ms B submitted two written requests for a stage 2 appeal on 13 May and again on 31 May. Ms B emailed the Council on 13 May to say she wanted her appeal to be considered at stage 2 of the appeal. She said she would forward supporting documentation separately.
14. Ms B emailed the Council again on 31 May to say that she had not received any acknowledgement of her request dated 13 May. She also provided the grounds on which she wished to appeal.
15. The stage 2 appeal took place on 24 February 2022. I assume this was as a result of our enquiries on this complaint which were sent to the Council on 3 February. The Council wrote to Ms B on the same day stating the appeal was not upheld and what it had taken into account when considering her appeal. The Council says it offered Ms B the opportunity to attend the appeal hearing but that she declined. The Council’s letter did not provide details of her right to complain to this office.

Was the council at fault and did this cause injustice?

16. Under the timescales detailed in the statutory guidance the Council should have arranged the stage 2 appeal to happen by July at the latest. It did not in fact arrange the appeal until February 2022. This means that it delayed by six months in arranging this appeal. This amounts to fault. It appears the only reason it did consider the appeal then was because of the involvement of this office. I have seen no evidence to confirm the Council invited Ms B to make verbal representations but have no reason to believe this did not happen. The Council did not advise Ms B of her right to complain to this office if she was dissatisfied with the way in which the stage 2 appeal had been conducted or her appeal handled. This amounts to fault.
17. The delay caused Ms B injustice in the form of avoidable frustration, uncertainty and time and trouble in having to complain to this office to resolve the matter. I consider the injustice is exacerbated by Ms B having to complain to this office a second time following a six month delay in considering her complaint at stage 1 of the appeals process. In total it took Ms B nearly a year and a half to complete the appeals process following her original request for a stage 1 appeal.

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Agreed action

18. Within a month of the final decision on this complaint the Council will:
• apologise to Ms B;
• pay Ms B £350 to recognise the avoidable frustration, uncertainty and time and trouble she has been caused by the poor handling of her request for an appeal and taking into account that this was made worse as a result of the earlier delay.
19. Within three months of the final decision on this complaint the Council will:
• provide us with further details about an appeals mailbox it says it has now put in place to ensure that appeals are processed in a timely manner. It should provide details of when this was implemented and how it will ensure this mailbox is properly monitored to ensure that the faults identified in this complaint are not repeated in future;
• provide us with information on how may stage 1 and stage 2 transport appeals the Council has received over the last six months and how quickly these have been arranged; and
• confirm that in future its letters to appellants following a stage 2 appeal include information about how to complain to the Ombudsman’s office and tell us how this will be achieved.

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Final decision

20. The Council was at fault in avoidably delaying for six months in arranging an appeal at stage 2 of the transport appeals process. This fault caused Ms B injustice in the form of frustration and time and trouble as she had to complain to this office in order to have the matter resolved. The Council will take the agreed action to recognise this injustice and to avoid repeating the same faults in future.

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Investigator's decision on behalf of the Ombudsman