Summary: Mrs X complained the Council wrongly refused to provide her daughter, who has special educational needs, with school transport. There was fault in the way the Council considered Mrs X’s application and appeal which means she cannot be sure it reached the correct decision. This fault may have affected others. The Council should reconsider Mrs X’s application and review its policy and procedures.

The complaint

1. Mrs X complains the Council has wrongly refused to provide home to school transport assistance for her daughter who has special educational needs. She says she cannot travel safely to school without this provision and Mrs X has had to reduce her working hours to ensure her daughter can attend school.

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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. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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

6. I have considered the information supplied by Mrs X and her representative. I have considered the initial information provided by the Council including the records related to Mrs X’s stage one and two appeals.
7. I have considered the relevant law and guidance and the Ombudsman’s Guidance on Remedies
8. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
9. 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

Special Educational Needs

10. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

Law and guidance on school transport provision

11. Under the Education Act 1996 councils have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances. They have discretion to provide transport for children who are not entitled to free transport. They may charge for this transport.
12. Councils must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
13. 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.’
14. Eligible children include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16); and
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs (SEN), disability or mobility problem. For children with SEN, eligibility should be assessed on an individual basis to identify their particular transport requirements. If a school is named unconditionally in a child’s education, health and care plan (EHC plan) then it is the child’s nearest suitable school. Usual transport requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to special educational needs and/or disability.
15. The home to school travel and transport statutory guidance (July 2014) says ‘in determining whether a child cannot reasonably be expected to walk for the purposes of special educational needs, a disability or mobility problems eligibility the council would need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied’.
16. It goes on to say ‘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’.
17. The guidance sets out a recommended two stage review/appeal process. At stage two the guidance sets out the panel should provide a detailed written notification of the outcome of the appeal setting out:
• The nature of the decision reached
• How the review was conducted
• Information about other departments/agencies consulted as part of the process
• What factors were considered
• The rationale for the decision reached; and
• Information about the parent’s right to go to the LGSCO.

The Council’s home to school transport policy

18. All pupils under the age of 16 are entitled to free transport on buses within London. The Council therefore considers this sufficient to meet the transport needs of most pupils of compulsory school age.
19. The Council’s policy sets out that ‘wherever possible, Royal Greenwich expects parents/carers of children and young people with an Education Health and Care (EHC) Plan to make arrangements for their child to attend school in the same way as for parents/carers of children without a plan, as this is an important factor in developing the child or young person’s independence, social and life skills’.
20. It says: the statutory minimum walking distance for children or young person with SEND to be eligible for assistance from Royal Greenwich are:
• 2 miles from school for children aged eight years or under
• 3 miles from school for children aged eight years or over
21. In addition to considering the distance from the child or young person’s home to school, Royal Greenwich will also consider:
• The needs of the child
• The complexity of the home to school journey
• The use of public transport whenever possible and appropriate
• Promoting independent travel and training.
22. The Council’s policy states ‘no dispensation can be made for parents who are working at the time their child/young person travel to and from school, or who have other child/young person to get to school.’
23. The policy sets out that where an application is refused, an appeal must be submitted within 28 days. It sets out a two stage appeal process. At stage one the appeal is considered by the Head of SEN. At stage two the appeal is considered by an independent panel.

The Equality Act 2010

24. Local authorities must comply with the Equality Act 2010. The Equality Act prohibits a local authority from discriminating against someone on the grounds of a “protected characteristic”.
25. The Act also places a legal obligation on the local authorities to comply with the public sector equality duty. This means they must consider how their home to school transport decisions and policies affect people with protected characteristics, and must have due regard to the need to:
• eliminate discrimination against people with protected characteristics;
• promote equality of opportunity between people who have a protected characteristic and those who do not; and
• foster good relations between people who have a protected characteristic and those who do not.

What happened

26. In September 2019 Z started attending a special school named in her EHC Plan which is 1.1 miles from home. In December 2020 Mrs X applied for school transport for her daughter Z to attend the school. The application set out Z travelled by bus and was accompanied daily. It said she had autism spectrum disorder (ASD) and learning difficulties and needed to be supported by people with a good understanding of ASD. Both parents were struggling to take her to school due to work commitments and health reasons. It said Z had no awareness of danger and did not have the capacity to travel independently.
27. The Council refused the application a week later. The letter set out that Z did not meet the statutory walking distance as the journey was 1.1 miles. It said it would expect her to be accompanied by a responsible adult if necessary, either by walking, public transport or car. It said there were no exceptional circumstances which would prevent Z from achieving this. Mrs X appealed against the decision later the same month.
28. Mrs X set out there was no mention of Z’s individual need or whether she could walk safely to school. She said both parents were working and had two younger children to take to school so could not accompany Z. Mrs X said she took medication for joint pain and Mr X had eye problems. Mrs X said Z could display challenging behaviour, had difficulties listening to others and could become anxious in a confined space. She said the Council had not considered Z’s difficulties and how they impacted on her mobility.
29. In the stage one response the Head of SEN set out they considered Z lived within the statutory walking distance for their school and age. They then considered whether Z could reasonably be expected to walk the distance to school because of their SEN or disability. They said Z’s SEN needs did not prevent her from being able to travel safely on foot or by public transport with adult support. They said the Council would expect Mrs X to put in place a responsible adult to accompany Z to school and to support her to begin to develop her road safety and independence skills in line with her EHC Plan. They said they would expect a responsible person to accompany Z if Mrs X felt Z could not manage the journey herself. They said the policy set out that no dispensation can be made for parents who are working at the time their children travel to and from school or who have other children to get to school.
30. Mrs X asked to go to stage two of the appeal process. Mrs X attended the appeal virtually. The Council considered the information provided at stage one plus a letter from the school which set out that Z was reliant on supervising adults to ensure she was safe when in the community and she was unable to travel independently. It said she had little awareness of road safety and could present with challenging behaviour.
31. The minutes of the hearing noted Mrs X said she could not drive and needed to get the other children to school. Mrs X said Z was unable to sense danger so travelling on the bus was not ideal. The Council officer noted Z had travelled to her school without Council assistance for 18 months. They noted they had looked at the EHC Plan and the review which noted Z was doing well at the school and had a good attendance record. They noted the family circumstances had changed and there was no change in Z’s needs. They said they could not base transport on family circumstances but must direct more on Z’s needs. The Council officer stated the Council was unable to allow transport assistance based on family circumstances. They said there was a parental responsibility to get a child to school and Z had no evidenced need for transport. They said they could not award transport purely because parents were working.
32. The minutes of the stage 2 panel meeting noted Z had no mobility issues and there were no other SEN reasons why she could not travel to and from school with the support of an adult if needed. The Council’s presenting officer told the panel the Council could not provide transport assistance to a child purely because the parents are working or on family circumstances, only based on the child’s needs. There is no record of what the panel deliberated before coming to its decision not to uphold the appeal. The stage two panel letter to Mrs X explained the panel concluded the Council had correctly applied the policy, Z had no mobility needs and it was not unreasonable for Z to travel 1.1 miles accompanied if necessary. It did not uphold the appeal.
33. Following the appeal, the Panel Chair emailed the Council’s Presenting Officer. They stated ‘We felt that 1.1 miles was not an unreasonable distance, [Z] has no mobility issues and there are no other SEND reasons why she cannot travel to and from school with the support of an adult if needed. We also felt that the family circumstances are now as they were before Dad became unwell and both parents can support with the logistics of the school run for all three children’.

Findings

34. The Council’s policy, in place at the time, makes no reference to the Equality Act and the Council’s duty to have regard to this in considering Z’s school transport application. This was fault. The Council has since amended its policy and I am satisfied this is now addressed in the revised policy.
35. The Council initially refused Mrs X’s application based on distance. This was fault. A child with a disability, mobility problems or SEN is a separate and distinct category of eligible child for home to school transport under the law. The Education Act 1996 says usual transport requirements should not be considered when assessing transport needs of eligible children due to SEN. Z has special educational needs and so the home to school distance was not relevant. We had raised this issue with the Council following an earlier decision and are concerned, based on evidence we have seen, that this fault is continuing. It also means other children with SEN may have been wrongly refused transport based on distance alone.
36. The Council’s policy in place at the time referred to the statutory walking distances when considering transport eligibility for children with SEN/disabilities. This was fault. In response to a separate complaint to the Ombudsman, the Council has already revised its transport policy to address this fault. It has now published the revised policy on its website.
37. The Ombudsman is not an appeal body. We cannot replace a council’s decision with our own. Our role is to consider whether there was fault in the way the Council reached its decision.
38. The law does not automatically require councils to provide transport to children with SEN. It is for the Council to decide on a case by case basis. The statutory guidance says when a child with SEN attends a school within the statutory walking distance, councils must:
1. consider if the child is eligible for free school transport because the route is unsafe, because of problems with their mobility or because of associated health and safety issues related to their special educational needs or disability.
2. if so, councils must consider if the child could reasonably be expected to walk if accompanied.
3. if so, councils must go on to decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied.
39. Although the Council’s stage one letter initially referred to distance, which was fault, it then applied the correct test to consider whether Z could reasonably be expected to walk to the school given their disability, SEN or mobility problems – as set out in 37 a) above. It set out the Council’s consideration of Mrs X and Z’s case and said it was not unreasonable for Z to travel independently accompanied as necessary - as set out in 37 b) above. It considered relevant information and followed the guidance on these two points, so we cannot criticise its decision on these parts.
40. However, I cannot be certain, on the evidence considered, that the Council properly considered paragraph 37 c) above on whether the child’s parents can reasonably be expected to accompany the child. The guidance sets out the expectation a child will be accompanied unless there is a good reason why it is not reasonable to expect parents to do so.
41. The panel notes from the stage two hearing record there was no reason Z could not get to school if accompanied by a responsible adult. However, neither the stage 1 letter nor minutes of the stage 2 meeting show how the Council, or its panel, considered whether it was reasonable for Z to be accompanied by her parents.
42. In their email to the Council’s Presenting Officer following the appeal, the Chair of the panel set out the panel’s reasoning for why they considered Z could be accompanied by her parents. However, during the appeal the Council repeatedly stated that no dispensation could be made for parents who are working or who have other children to get to school. The Council’s inflexible policy is fault. Councils should not have a blanket policy where it has the power to exercise its discretion. I cannot know the extent to which this policy influenced the panel’s decision making and whether, if not for the policy, this would have resulted in a different decision for Mrs X.
43. We cannot come to a view on the issue of whether it would be reasonable for the Council to expect a child of Z’s age to be accompanied, as set out in paragraph 37 c) above. The law and statutory guidance do not set out at what age it would be reasonable or not for a child to be accompanied. The interpretation of the issue of age, which is based on case law, would be for a court to decide and not the Ombudsman.
44. The statutory guidance recommends that at both stages of the appeal process, the Council provides a detailed written notification of the outcome setting out the nature of the decision, how the decision was reached, who was consulted, what factors were considered, and the rationale for the decision. The stage two decision letter failed to include any meaningful explanation of how the decision was reached and the rationale for the decision. This was fault. In addition, although there were notes of the hearing, there were no notes of the panel’s deliberations. Good administrative practice is to have notes. This was fault.

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Agreed action

45. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X for the frustration caused by the Council’s faults and reconsider Mrs X’s transport application. It has already decided Z could reasonably be expected to walk if accompanied. Therefore, it needs to consider whether Mr and Mrs X can reasonably be expected to accompany Z on the journey to school, based on their individual circumstances and without using a blanket policy.
2. review its procedures to ensure:
1. initial decisions on school transport applications made on the basis of a child’s disability, mobility issues or SEN are decided with regard to the correct test and are not based on statutory distances.
2. stage two appeal letters provide a meaningful explanation of how the panel reached its decision.
3. it keeps a contemporaneous note of the panel’s decision making.
46. Within four months of the final decision the Council has agreed to:
1. provide training or guidance to relevant staff to ensure transport applications for children with SEN are properly considered in line with the correct test in the statutory guidance.
2. reconsider any refused transport applications regarding SEN which the Council has received in the last school year, ensuring it applies the correct test.
3. revise its transport policy to ensure it considers exercising its discretion when considering the individual circumstances in each case rather than applying a blanket policy that no dispensation can be given for working parents.
47. The Council will need to provide us with evidence it has completed the agreed actions.

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Final decision

48. I have completed my investigation. There was fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused and to service improvements to prevent a recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman