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London Borough of Hillingdon (21 011 741)

Category : Education > School transport

Decision : Upheld

Decision date : 23 Mar 2022

The Ombudsman's final decision:

Summary: Ms X complained about the Council’s decision on her son’s school transport, resulting in distress to her son and inconvenience to her. We find the Council at fault for not following its published process, but this did not affect the Council’s decision making. We recommend the Council apologise to Ms X for not following its published appeals process and make a payment to recognise the uncertainty caused. We also recommend the Council remind staff dealing with transport appeals of the importance of following its published policy.

The complaint

  1. Ms X is complaining about the Council’s decision to have her son’s school transport provision begin and end at a pickup point rather than their home. Ms X is unhappy with the way the Council has considered her appeals as she feels it has not properly considered her evidence.
  2. Ms X has said travelling to the pickup point is causing her son, Y, distress. She has also said it is difficult to manage this every day as she has two other children to get to school at similar times.

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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)
  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 discussed this complaint with Ms X by telephone.
  2. I have considered all the information provided by Ms X and the Council, including the appeal notes and decision letters.
  3. I have considered:
    • The Education Act 1996
    • ‘Home to school travel and transport guidance’ published by the Department for Education (‘the Statutory Guidance’)
    • The Council’s home to school transport policy
  4. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Home to school transport

  1. Councils have a duty to provide free home to school transport for ‘eligible children’. (Education Act 1996, section 508B).
  2. ‘Eligible children’ are children of compulsory school age who:
    • Live within statutory walking distance but cannot reasonably be expected to walk to school because of the nature of the route, or because of their special educational needs, disability, or a mobility problem; or
    • Live beyond the ‘statutory walking distance’; or
    • Receive free school meals, or whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B and Statutory Guidance paragraph 16)
  3. Councils must secure “suitable home to school travel arrangements, for the purpose of facilitating the child’s attendance at the relevant educational establishment” and provide these free of charge. (Education Act 1996, section 508B (1))
  4. ‘Home to school travel arrangements’ for an eligible child are defined as “travel arrangements relating to travel in both directions between the child’s home and the relevant educational establishment in question in relation to that child”. (Education Act 1996, section 508B (3)).
  5. The statutory guidance explains, “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”
  6. Relating to ‘suitability of arrangements’, the statutory guidance says councils “may at their discretion use appropriate pick-up points when making travel arrangements. For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study”. (Statutory guidance paragraph 35)

Transport appeals

  1. Councils should have an appeals process in place for parents who wish to appeal about their child’s eligibility for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
  2. The guidance recommends councils adopt the following appeals process:
  • Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer should review the original decision. They should send the parent a detailed written notification of the outcome of the review. This should set out the nature of the decision, how they conducted the review, what they considered, the rationale for the decision reached, and how to escalate their case to stage 2; and
  • Stage 2: An independent appeal panel should consider written and verbal representations and send a detailed decision within 40 working days of the parent’s request. This should set out the decision reached, how the review was conducted, what was considered, the rationale for the decision, and information about appealing to the Ombudsman. (Annex 2 of the guidance)
  1. Appeals can challenge the council’s assessment of a child’s eligibility, its measurement of distance to school, and its assessment of route safety. Parents can also ask the council to consider their exceptional circumstances.

The Council’s home to school travel assistance policy

  1. The Council’s published policy explains it will consider each application on its own merit and requests that families provide all the relevant information during the application stage.
  2. If it is satisfied a child is eligible, the Council will then decide which travel assistance to offer based on the child’s needs and circumstances. The Council’s policy explains its offer will explore options that offer the greatest independence to help a child’s move towards independence for adulthood.
  3. The Council’s policy explains it will review eligibility and provision at least yearly, and when the child reaches the end of a key educational stage, moves to a new school, or has a change in circumstances.
  4. If a parent disagrees with the Council’s decision its published appeals policy mirrors the recommendations of the statutory guidance, as set out above.

What happened

  1. Ms X has two children who are eligible for home to school travel assistance. Before moving home in September 2020, both Ms X’s eligible children’s transport started and ended at their home.
  2. On 3 September 2020, Ms X reapplied for Y’s transport provision so it could be moved to their new home. The Council assessed Ms X’s application and decided that, while Y was still eligible for home to school travel assistance, it would now be appropriate for this to start and end at a designated pickup point.
  3. Ms X was unhappy with the Council’s decision and appealed against this on 2 October. Ms X explained she felt the transport should be door to door as she had two autistic sons, one of whom was Y, who were known to run off. She explained she also had a third son who she needed to get ready for school.
  4. Ms X provided a doctor’s letter from 17 September which recommended transport pick up and drop off Y at his home address to due mobility problems and to ensure safety. She also provided letters from another doctor and Y’s school from 2019 which gave more details about his needs.
  5. The Council considered Ms X’s appeal at stage 1 review. It wrote to Ms X on 5 November to let her know her appeal was unsuccessful. The Council explained it felt there was not enough evidence to consider individual or extenuating circumstances.
  6. The Council quoted a section of its policy which explains it will consider any relevant exceptional circumstances for children from vulnerable groups. It also explains it would not usually consider family work commitments, childcare arrangements, or inconvenience to the parent.
  7. The letter did not give reasons why the Council thought it was safe for Y to be using a pickup point or comment on whether mobility was an issue for him.
  8. The Council’s letter explained Ms X could have her appeal heard by a councillor at Stage 2 if she disagreed.
  9. Unhappy with the outcome of the Stage 1 review, Ms X verbally requested this be progressed to Stage 2 on 11 November.
  10. On behalf of Ms X, a social worker explained Y could take well over an hour getting ready in the mornings, as well as having to be fed breakfast. He explained Y had severe autism and would often try to run off when he and Ms X left home in the morning as well as scratching and bruising her to get away. The social worker explained Y often became distressed while waiting for the transport to arrive at the pickup point. He also said the Council should consider difficulties posed to Ms X by Y’s brother’s autism.
  11. A virtual Stage 2 appeal was held on 1 December and Ms X attended this. The Council sent a letter to Ms X that same day to explain her appeal had been unsuccessful. It explained a councillor considered all evidence submitted by both Ms X and the Council and had decided Y would benefit from the social interaction and independence presented by the group pick up. The letter explained the Council would review Y’s arrangements as necessary and would also review his siblings’ arrangements to ensure flexibility. The letter did not mention Ms X’s right to refer to the Ombudsman.
  12. On 29 September 2021, Ms X asked the Council to review Y’s travel arrangements. She provided a letter dated 12 March 2021 from a behaviour analyst. This letter explained it was a concern that Y was taking transport from a busy road as he does not understand risks and danger properly. The letter explained Y can become distressed because of the noise of the road and had difficulties waiting when the transport was late so pickups from home would be helpful to him.
  13. The Council carried out route evaluations as well as gathering information from the transport team to get their view. The evaluations showed Ms X took Y to the pickup point by car and he appeared calm, he also seemed to engage well with the staff on the transport. The transport staff said Y always seemed calm and happy and they could see no significant mobility problems that would prevent Y from getting to the pickup point.
  14. The Council considered Ms X’s request and wrote to her on 27 October to explain its decision remained unchanged due to the travel assistance team’s observations. The letter explained it considered the matter closed but Ms X could contact the Ombudsman if she wished to pursue it further.

Analysis

  1. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was right or wrong. Instead, we look at the processes a council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
  2. Government guidance recommends appeals are heard by a senior officer at Stage 1 and an independent appeal panel at Stage 2. The Council’s policy is in line with this. However, the information the Council has provided shows an internal panel heard the appeal at Stage 1 and a councillor heard the appeal at Stage 2.
  3. I cannot second-guess whether the result of Ms X’s appeal would have been different, but the Council is at fault for not following the published appeals process. That said, there does not appear to be a direct injustice to Ms X or Y because of this fault. I say this because the Council appears to have given clear reasons for its decision which suggests the outcome would not have changed.
  4. There is also fault in the way the Council communicated decisions to Ms X during the appeals process. Appeal responses should be detailed and contain information about how reviews were conducted, what was considered, and the rationale for decisions. The Stage 1 response Ms X received was vague and did not fully comment on how her submissions were considered or the rationale behind decisions. This would have caused uncertainty for her.
  5. Stage 2 appeal responses should explain parents have the right to appeal to the Ombudsman if they are unhappy with the appeals process. The letter sent to Ms X on 1 December 2020 did not contain any information about the Ombudsman. This is fault and would have caused a loss of opportunity for Ms X as she was not told she could bring a complaint to the Ombudsman until the Council’s letter of 27 October 2021 – more than ten months later.

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Agreed action

  1. To remedy the injustice set out above, I recommend the Council within one month:
    • Provide Ms X with a written apology for failing to follow its published appeals process and for the way it communicated its decisions.
    • Pay Ms X £100 to recognise the uncertainty caused by failing to follow the correct process and the delays in letting her know she could contact the Ombudsman.
    • Remind staff dealing with transport appeals of the importance of following its published process and sending detailed responses at each stage.
  2. The Council has accepted these recommendations.

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Final decision

  1. For the reasons given in the Analysis section, I have completed my investigation and I find fault with the Council for failing to follow its published appeals process. I also find fault with the way the Council communicated its decisions to Ms X.

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Investigator's decision on behalf of the Ombudsman

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