Summary: Mr X complained the Council failed to transport his son to college for eleven days as outlined in his son’s Education, Health and Care (EHC) Plan. Mr X says he needed to transport his son to college during this time but the Council only paid £0.30 per mile and not £0.55 per mile. The Ombudsman found fault with the Council. The Council agreed to the Ombudsman’s recommendation to pay Mr X’s travel expenses at £0.55 per mile.

The complaint

1. Mr X complained the Council failed to transport his son to college for eleven days as outlined in his son’s Education, Health and Care (EHC) Plan.
2. Mr X says he needed to transport his son instead which amounted to 374 miles over the eleven days. Mr X says the Council only paid his expenses at £0.30 per mile when he was expecting payment around £0.55 per mile.

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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. We cannot question whether an organisation’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)
5. If we are satisfied with an organisation’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 all the information Mr X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mr X and the Council had opportunity to comment on my draft decision before I reached my final decision.

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What I found

8. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
9. Eligible children can include children of compulsory school age who cannot walk to school because of their special educational needs, disability or a mobility problem. (Education Act 1996, Schedule 35B)
10. The Council must provide free transport to the nearest qualifying school for children who are eligible because of their special educational needs or disability.
11. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
12. The Council’s education transport policies for home to school transport for special education needs students do not include any reference to costs or payments for parents providing transport.
13. The Council’s policy on Personal Travel Budgets outlines a rate of £0.55 per mile. A Personal Travel Budget is a monthly sum of money a parent or carer may receive to transport child or young person with an EHC Plan to their educational setting. The Council pays a Personal Travel Budget in advance and designed for a long term agreement with an EHC Plan.

What happened

14. Mr X’s son, Y, had an EHC Plan with the Council which included a provision to provide transport for Y to and from his college.
15. On 6 September 2021, the Council failed to provide transport for Y to college. Mr X transported Y to college and contacted the Council to complain about the lack of provision.
16. The Council failed to reinstate Y’s transport to and from college until 24 September 2021.
17. On 14 October 2021, the Council asked Mr X to provide an expense claim form for transporting Y to and from school from 6 September 2021 until 22 September 2021. Mr X sent a “Claim for Education Travelling Expenses” form to the Council on 19 October 2021 requesting 34 miles per day over 11 days totalling 374miles, as Y did not attend college on Thursdays.
18. The Council paid Mr X £63.36 in expenses on 26 November 2021.
19. Mr X told the Council he considered the payment too low. The Council told Mr X it had paid his expenses at £0.30 per mile. Mr X continued to dispute the payment amount with the Council. The Council paid Mr X a further £13.08 on 7 January 2022 bringing the total payment amount to £76.28.
20. Mr X complained to the Council on 6 January 2022. Mr X said he expected payment at £0.45 in line with the Government travel mileage and fuel rates allowances, or £0.55 per mile in line with Swindon Borough Council’s Personal Budgets for SEND. Mr X said the Council should have paid him £205.70 at the £0.55 per mile rate.
21. The Council sent Mr X a Stage 1 complaint response on 24 January 2022. The Council admitted it failed to provide transport for Y for 11 days. The Council said it considered it had paid the expenses in full based on the information in the claim form. The Council said it pays £0.30 per mile for home to school transport. The Council said the £0.55 per mile Mr X was claiming was for when a parent transports their child to and from school on a longer-term basis.
22. Mr X responded to the Council on 25 January 2022. Mr X agreed he had signed a form for 34 miles per day but said the Council was wrong to only pay his expenses at £0.30 per mile.
23. The Council rejected Mr X’s request for a Stage 2 complaint response so Mr X approached the Local Government and Social Care Ombudsman (the Ombudsman).

Analysis

24. The Council has accepted it failed to transport Y to college for 11 days from 6 September 2021 to 24 September 2022. The Council has explained the reason it failed to complete Y’s transport during this time is because of staff shortages caused by the Covid-19 pandemic.
25. The Council’s explanation for the failure to transport Y is understandable. However, the Council committed to providing transport for Y to and from college in line with his EHC Plan. Failure to provide this service is fault.
26. The Council’s fault meant that Mr X needed to transport Y to college for 11 days at 34 miles per day. The Council has accepted it needed to pay Mr X for his expenses when it asked him to provide the expenses claim form. The Council has also confirmed in its Stage 1 complaint response that it accepted Mr X’s request for 11 days’ worth of transport at 34 miles per day.
27. The Council says it has paid Mr X for his expenses through the total payments of £76.28. The Council says it has paid Mr X at £0.30 for the 34 miles per day for 11 days. However, the Council’s payment of £76.28 for 374 miles only amounts to a rate of between £0.20 and £0.21. The Council has miscalculated the payment to Mr X based on its chosen payment rate of £0.30. The Council should have paid Mr X £112.20 based on £0.30 per mile; paying £76.28 was fault.
28. Mr X has disputed the Council’s decision to only pay him £0.30. The Council told the Ombudsman it paid Mr X £0.30 because of a signed document by Mr X agreeing to this payment rate of £0.30. The Council also told Mr X in its Stage 1 complaint response that it pays £0.30 per mile for travel expenses to and from school. The Council has not been able to evidence either a signed document by Mr X or a policy detailing the payment rate of £0.30. The Council has not provided any evidence or policies to support its decision to pay £0.30 per mile.
29. The Council is correct the Personal Travel Budget is not designed to calculate payment for Mr X’s circumstances. The Personal Travel Budget is designed as long-term payment instead of the Council providing transport to and from school. Y’s EHC Plan specified the Council would provide transport to and from college and, therefore, Y does not receive a Personal Travel Budget.
30. But, the Council does not have a specific policy for when it fails to provide transport in line with an EHC Plan. A such, the Council should use the closest policy it has to calculate the mileage allowance. The Council’s Personal Travel Budget policy is specifically for the function Mr X was fulfilling from 6 September 2021 to 24 September 2021. This being, the transport of a child with an EHC Plan to and from a place of education.
31. The Council should award Mr X his travel allowance in line with this policy at a rate of £0.55 per mile amounting to £205.70. The Council has underpaid Mr X by £129.42.

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Agreed action

32. Within one month of the Ombudsman’s final decision the Council should:
• Pay Mr X £129.42 for the underpaid cost of his travel expenses and provide him with an apology for the underpayment and inconvenience caused in chasing this matter up with the Council.

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Final decision

33. There was fault leading to injustice. As the Council accepted my recommendations, I have completed my investigation as I consider that a suitable remedy.

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Investigator's decision on behalf of the Ombudsman