Summary: Ms C complained the Council wrongly decided not to fund transport to school for her children. She said that as a result she had to walk them to school which had an adverse impact on her health. And when that was no longer possible the children were unable to attend school. There was fault by the Council which caused injustice to Ms C. The Council will make a payment to her in recognition of the fault and impact on her and her children.

The complaint

1. I refer to the complainant as Ms C. She complained the Council wrongly decided not to fund transport to school for her children. She said that as a result she had to walk them to school which had an adverse impact on her health. And when that was no longer possible the children were unable to attend school.

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What I have investigated

2. I have investigated the complaint about school transport. I have not investigated complaints about the provision of alternative education for the reasons I explain in the body of the statement.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I considered the complaint and documents provided by Ms C and spoke to her I asked the Council to comment on the complaint and provide information. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms C and the Council and considered their comments. .
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

Summary of the relevant law, guidance and good practice

7. Local authorities must make suitable travel arrangements for eligible children to attend their qualifying school. This transport must be 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. To be eligible they must live outside the statutory walking distance from the school.
8. When a parent applies for school transport to a school beyond the statutory walking distance, if there are places available at a nearer suitable school then the council is entitled to refuse free school transport. Which school is the nearest school can depend on a number of factors.

The Council’s policy

9. The Council provides free transport to and from a child’s education setting for a single school designated for the home address. The school must be further than the statutory walking distance for the child’s age.

What happened

10. In August 2020 Ms C applied for home to school transport for her three children. The school where they were on roll was her preferred school but was not the nearest or designated school for their home address. The Council refused the request for transport. Ms C appealed and that was considered by an officer panel. That too rejected her application. She then appealed to the appeals committee. That met in early December and recommended that Ms C apply for emergency financial support from the COVID-19 emergency fund but, if that was not successful, transport assistance would be provided for the first term of 2021.
11. Shortly afterwards Ms C contacted the emergency fund. The officer she spoke to said she should have school transport and it was not something for the emergency fund. Ms C went back to the Council who asked her to provide the decision in writing.
12. At the start of term in January Ms C contacted the Council. Ms C complained about the officer and asked for a senior officer to contact her. The emergency fund officer spoke to officers at the Council. At the end of the month the Council agreed to provide transport. An officer contacted Ms C to arrange delivery of bus passes. Ms C said that she had, the day before, withdrawn the children from school and would be educating them at home.
13. In February Ms C wrote to the Council. She said she was preparing to take legal action against the Council and was seeking compensation of £150,000. She asked that her correspondence be passed to the Council’s legal advisers. There was then contact between Ms C and the Council’s legal advisers.
14. In May Ms C complained to the Chief Executive. In response the Chief Executive directed there be an internal review of how Ms C’s application had been considered by the Council. The review reported in June. It was critical of some aspects of the Council’s handling of the application. In summary it said that insufficient weight had been given to the concerns Ms C had raised about the racist abuse her children had suffered. It said the Council’s policy complied with statutory guidance but improvements could be made. It said officers and Members should receive training on safeguarding.
15. The Council wrote to Ms C with the outcome of the review. It offered her unconditional bus passes for her children for as long as they needed them. It also suggested Ms C engage with the Council’s early help team to see whether other support could be offered to the family.
16. Ms C replied. She said that she did not want any support from early help and that it was now too late to offer the bus passes.
17. As I understand it, there was then further correspondence from Ms C with the Council’s claims department and with its insurer’s solicitors. Ms C then complained to us.

Analysis

The transport appeal

18. The Council’s own review of Ms C’s applications and appeals found that her grounds for appeal about the racism her children had suffered had not been properly considered, either at the first review or the appeal hearing. I agree with that assessment that this was not properly addressed at either stage.
19. The decision to require Ms C to apply to the emergency fund before awarding school transport was not made on a sound basis. The appeal did not know what the terms of reference were for the emergency fund when making that recommendation. It should have limited its consideration to whether Ms C should be awarded transport based on her circumstances. There was no basis for making a conditional award dependent on other support over which the Council had no control.
20. There was further fault in how the Council responded when Ms C had approached the fund. The Council asked for a written decision but Ms C had not been given a written decision as the exchange had been over the phone. But the Council was insistent it needed to be in writing. The Council had contact from the emergency fund officer on 7 January so it should have been able to satisfy itself of the decision from the emergency fund. The payment was not actioned until 26 January. This delay was unjustified.

Complaint handling

21. In the correspondence over 6/7 January it was clear Ms C was making a complaint and asking for it to be escalated, the Council didn’t do that and there was no response. On 26 January Ms C headed her email ‘letter before action’. The Council decided not to put it through the corporate complaint process but I have not seen any other response to Ms C. Ms C wrote again in February and her correspondence suggests she had had no response from the Council. The Council has told me that there was then correspondence with its legal advisers but it has not provided copies of that.
22. Based on the information I have seen I have to conclude there was not an adequate response from the Council to Ms C’s correspondence over early 2021.
23. Ms C then complained to the Chief Executive. Again I do not have a copy of that but it prompted the review I refer to above. This was an appropriate way of addressing the issues raised by Ms C and provided a comprehensive review of what had happened and provided robust recommendations for action to improve services. The Council told Ms C of the outcome and made offers of support and of transport. That was an appropriate response.

Provision of alternative education

24. When Ms C withdrew her children from school she said she was educating them at home. As I understand it later in 2021 in her correspondence she did ask the Council to provide education. I do not have copies of all this correspondence so I cannot be certain exactly what Ms C was requesting, or how the Council responded.
25. The Council considers it has not had chance to consider a complaint from Ms C that it has failed to provide alternative education for her children. I am not persuaded of this; the information I have seen, and Ms C’s comments, suggest that she was raising concerns about her children’s education and what alternatives might be available. We will consider this as a separate complaint.

Remedy

26. Where there has been fault we have to consider what that has meant for the complainant and ask the Council to provide a remedy which will, as far as is possible, put them back in the position they would have been in but for the fault. Here I consider that, on the balance of probabilities, Ms C would have been awarded bus passes earlier in this process. I think that would have happened at the appeal hearing in December and possibly, at the first officer appeal in September.
27. Ms C argues that given the information she had supplied in August about her health and vulnerability to infection from COVID-19 the Council should have awarded transport immediately. She says the failure to do so is what led directly to the deterioration in her health. She looks to the Council to provide a substantial remedy to fund the medical treatment she now needs.
28. Even if I were to conclude that proper consideration at the first review in September 2020 would have led to an award of transport, I cannot make the connection that Ms C does about the consequences for her health. Many factors could have contributed to her ill-health. The sums Ms C is claiming are large and I consider the only place that could determine such a claim is the courts.
29. Given the uncertainty about what would have happened had Ms C received the award of transport sooner the only remedy I can ask the Council to provide is a sum to recognise the fault and distress caused to Ms C.

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Agreed action

30. The Council will, within one month of the final decision, pay Ms C £500.

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Final decision

31. There was fault by the Council which caused injustice to Ms C.

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Investigator's decision on behalf of the Ombudsman