Summary: There was fault in how the Council decided the home to school transport provided to the complainant was suitable. This casts doubt on the decision reached. The Council has agreed to review its decision.

The complaint

1. Ms X complains the Council failed to provide suitable home to school transport.
2. Ms X complains the Council has offered her a personal travel budget but the amount is insufficient to provide the transport and has not been backdated to when she started driving her child.

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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 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)
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 information provided by Ms X and the Council including the complaint correspondence and the Council’s policy.
7. I have considered:
• The Education Act 1996
• The Children and Families Act 2014
• Statutory guidance: Home to school travel and transport guidance
• Relevant caselaw
• Ombudsman’s Principles of Good Administration
• Ombudsman’s Guidance on Remedies
• Ombudsman’s Focus Report: All on board? Navigating school transport issues.
8. 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

Relevant law and guidance

9. A Council must make such travel arrangements as it considers necessary to facilitate an ‘eligible child’ to attend their relevant educational establishment. The Council must provide this free of charge. (The Education Act 1996, section 508B)
10. For arrangements to be suitable, they must be safe and reasonably stress free, to enable the eligible child to arrive at school ready for a day of study. (Department of Education, 2014, Home to school travel and transport guidance)
11. The issue of non-stressful transport was considered in R V Hereford and Worcester CC ex p P [1992] which found the obligation on councils is to make such transport arrangements as it considers necessary for a child to reach school ‘without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer, just as it must be to make such arrangements as it considers necessary for him to travel in safety and in reasonable comfort’. The courts have found ‘it is primarily for the local authority to decide’ what is necessary (R (on the application of M) v London Borough of Hounslow (2013)).
12. The Department for Education’s statutory guidance for home to school transport says councils should have both a complaint and an appeals procedure for parents to follow should they have cause for complaint about the service, or wish to appeal about the eligibility of their child for travel support. It says appeals should have two stages: Stage one conducted by a senior officer and stage two by an appeal panel independent of the process to date. The appeal panel should consider written and verbal representations from both parents and officers involved.
13. Eligibility for children who cannot reasonably be expected to walk to school because of mobility problems or because of health and safety issues related to their special educational needs (SEN) or disability must be assessed on an individual basis to identify their particular transport requirements. (Department of Education, 2014, Home to school travel and transport guidance)
14. The main body of the statutory guidance does not specify how a council should assess particular transport requirements but this can be inferred from the advice on appeals. The guidance on appeals says at stage two councils must give written notification setting out:
• The nature of the decision reached
• How the review was conducted
• Information about other departments or agencies consulted
• What factors were considered
• The rational for the decision reached.
15. It is therefore expected councils will seek necessary evidence to be able to accurately assess the individual child’s transport needs.

The Council’s policy

16. The Council’s policy for home to school transport says for pupils with SEN, any needs detailed in an Education, Health and Care (EHC) plan or other professional assessment will be taken into account at the time of assessment for transport.
17. The policy says once a pupil is assessed as being eligible for transport assistance a risk assessment will be undertaken to determine the most appropriate requirements for the individual pupil on the journey to and from school. If a parent does not agree with the arrangements, they should raise this with the Passenger Transport Team, but if they chose to withdraw their child from transport they will become responsible for getting the child to and from school at their own expense while this is investigated.
18. The Council’s policy for personal transport budgets says these are an option for families and are granted at the discretion of the Council for those eligible for Council funded transport. The amount payable is to contribute towards the costs, for example of using a family car, and is based on the distance between the home and school. There is a £5000 per year maximum budget for journeys over 10 miles for children with EHC plans.

Chronology

19. In late 2021, the Council assessed Ms X’s child as being eligible for free home to school transport and provided a vehicle shared with several other pupils and a passenger assistant.
20. Ms X says the transport provided was not suitable because her child, who is over six foot and has claustrophobia, was too cramped and anxious. Her child confirmed in writing they could not travel in a shared vehicle. Ms X says the noise levels in the vehicle were high, the timings were unsuitable and there were too many pupils with complex needs sharing one vehicle.
21. Ms X says her child’s EHC plan states they require a calm environment where they do not feel enclosed. Ms X says consistent predictable staffing is essential because of her child’s anxiety.
22. Ms X said the driver and escort would change at short notice in the Council provided transport.
23. In response to concerns the Council divided the pupils into two vehicles. Ms X’s child now only needs to share a taxi with one other pupil, the driver and a passenger assistant. The Council’s stage one appeal response said it had considered the EHC plan and consulted the SEN officer and Educational Psychologist (EP) to assess needs. The Council said the advice received was that sharing with several pupils was not suitable but sharing with one other pupil, a passenger assistant and driver was suitable. The Council said there were spare seats in the vehicle so Ms X’s child would have space and the taxi would be quieter. The Council acknowledged that there would need to be a transitional period and offered Ms X a personal travel budget of £26.31 per day (based on a maximum annual allowance of £5000) for the days when her child would not use the taxi until the February 2022 half term, when the Council expected the transition to be completed.
24. Ms X says that due to their previous experience her child refused to use a shared vehicle. Ms X says anxiety and inflexibility are features of her child’s disability. Ms X told us that she and a relative were continuing to take her child to school and back, a 48 mile round trip, twice a day. Ms X says this affects her ability to work and she had to work during the evenings to make up lost hours. Ms X says the daily rate offered by the Council is not enough to cover the wear and tear on the car of traveling 96 miles a day.

The stage two panel

25. Ms X asked for the appeal to go to stage two.
26. The panel recorded that Ms X’s preference was to transfer to the personal transport budget as the taxi being provided is not sufficient for [her child’s] complex needs and anxieties. Ms X wanted to use some of the £22,000 the Council had told a previous Tribunal was the cost of providing a taxi for her child.
27. Ms X told the panel she could not continue to drive her child herself due to work commitments and her proposed budget would include petrol costs, wear and tear on the car, and the cost of a trusted person to drive. Ms X’s cheapest proposal was £80 per day inclusive of petrol and a driver.
28. The Council said £22,000 was the cost of a sole taxi as there were no spare places in a vehicle at the time of the Tribunal appeal, but the current cost was less. The Council considered its offer of a shared taxi suitable as there was no evidence to support a need for a sole use vehicle.
29. The panel considered whether the Council’s offer of £5000 per year was fair. The Council had by now offered to pay this from January 2022 until the end of July 2022.
30. Ms X told the panel she was aware the Council had previously offered a personal travel budget above £5000 per year to another family. Ms X was concerned there was no risk assessment at the time the taxi was first provided and only one escort for several pupils with complex needs. Ms X told the panel her general practitioner and an occupational therapist (OT) would support the need for individual transport as her child hated to be enclosed. Ms X said the travel was having a large impact on wear and tear of her car and on her employment. Ms X says her child can only travel with one driver and no other people in the car.
31. The Council’s advisor told the panel there were driver and escort risk assessments available and guidelines on how to deal with children with complex needs.
32. The panel noted the EHC plan did not state a single use vehicle was required and there was no medical evidence to support a need for individual transport. The panel asked Ms X about the smaller number of pupils now in the taxi. Ms X told the panel her child was still refusing to get into the taxi even though they knew the other pupils. The panel asked Ms X about her fuel costs and Ms X said these were about £100 per week (in January 2022).
33. The panel considered the evidence it had heard. It noted that there were 38 weeks in the academic year and Ms X’s fuel was £100 per week so this was £3800 per year. On this basis the panel considered the Council’s offer of a maximum budget of £5000 was sufficient. The panel also considered the taxi should remain an available option with the school supporting Ms X’s child to use it. The panel noted the annual review paperwork referred to daily anxiety about transport. The panel decided to contact the school before reaching a final decision.
34. The panel reconvened the following day after a response had been provided from the school that travelling in the taxi is something they could work towards by September 2022. The school confirmed Ms X’s child did have irrational anxieties regarding the taxi. The panel noted the school would update the Council in June if the September timescale seemed unrealistic at which point we will have evidence of SEN needs requiring alternative transport arrangements to be made.
35. The Panel’s decision was to grant the personal budget from January 2022 at £5000 per year with a condition that, with support put in place by school and the transport team, Ms X’s child would work towards using the Council transport by September.
36. After the reconvened panel had issued its decision, Ms X provided new evidence from an OT which stated Ms X’s child had sensory issues and anxiety which made them feel unsafe and claustrophobic with others in the car. The OT advised putting Ms X’s child in an anxiety provoking situation would be detrimental until work had been done on self-regulation skills.
37. The Council confirmed to me it had received this evidence but decided not to consider it or reopen the case. It said this was because the stage two panel had considered evidence from professionals and sought evidence from the school and offered a personal budget which it said was Ms X’s preferred option. If Ms X accepted this, then her child would not need to travel with other pupils. Ms X has not accepted the budget but instead brought her complaint to the Ombudsman.
38. Ms X told me that since the transport decision any attempt to persuade her child to use the shared taxi has been unsuccessful and there is no current prospect of them using the taxi. Ms X says her child would use a single use taxi with a consistent trusted driver.
39. Ms X told me she hoped to be reimbursed for the weeks she had driven her son to school since May 2021, as the Council had only offered a payment from January 2022.
40. In response to my enquiries of the Council said it is willing to make one further final offer to Ms X of £5000 per year backdated to May 2021, being £6315.78.
41. Ms X has also been told to reapply for transport for September 2022 as her child will then be post-16. The council says it will also consider a personal budget at the applicable rate.

Analysis

Suitability of the nature of transport offered

42. Ms X’s child is eligible for free home to school transport under s.508B Education Act 1996. The Council has a legal duty to provide transport suitable for the child’s individual needs which is reasonably stress-free.
43. The Council must undertake an individual assessment of the particular transport requirements. The Council did consider the EHC plan, but this did not specifically address anxiety around transport. The Council also took advice from an EP that a shared vehicle with fewer children was suitable. However, despite this advice Ms X’s child continued to refuse to use the shared taxi. The Council did not seek any medical evidence or carry out any face to face assessment to establish why this was the case.
44. By the time of the stage two appeal the panel had evidence that Ms X’s child was not using the shared taxi with the other pupil. Ms X’s child had confirmed in writing they were unable to use this. Ms X had described the effect on her child of the transport offered. It is unclear what weight, if any, the panel gave the family’s evidence.
45. The panel considered it was Ms X’s preference to transfer to the personal transport budget, but Ms X’s preference was for a sole use taxi so she would not need to do the driving which was affecting her work.
46. The panel considered it would only have evidence to support a sole use taxi once there had been a period where this was trialled unsuccessfully for several months ‘at which point we will have evidence of SEN needs requiring alternative transport arrangements to be made’. This is fault, the statutory guidance does not provide for an extended period of assessment in this way. The assessment must have been made before the decision so that a judgment whether transport is suitable and reasonably stress free can be made. This may include a face-to-face assessment where there is conflicting evidence or the reasons why the pupil cannot use the transport are unclear.
47. The Council’s policy also requires an individual risk assessment. This is not a risk assessment of the driver or escort, as suggested by the Council’s advisor to the panel, but an assessment of the child’s individual needs.
48. The panel needed to satisfy itself the offer of transport (a shared use vehicle with three other people including the driver and escort) was ‘suitable’ at the time of the hearing. It is not enough for a panel to rely on a lack of evidence in favour of a sole use taxi, it also needed to be satisfied the child was able to use the shared use taxi in a way that was ‘reasonably stress free’.
49. I am not persuaded the panel has done enough to show how it satisfied this test, or that it gave a clear rationale why the shared taxi was found to be reasonable stress-free for a child who said they were too anxious to use it. This is particularly the case after the panel adjourned the hearing to obtain further evidence from the school.
50. The further evidence supported the family’s case, that the child was currently too anxious to use a shared vehicle. The school said that September 2022 was the earliest they would expect Ms X’s child to be able to use a shared vehicle. The panel did not revisit its view on the suitability of the offer on receipt of the school’s evidence. This is fault and casts doubt on what decision the panel would have reached had it done so. The panel only considered the school’s evidence in terms of whether it was appropriate to make a personal budget conditional on a transition plan being in place.
51. Following the stage two decision the Council received new evidence from an OT that supported Ms X’s view, and that of the school, that a shared vehicle was not currently a suitable option. The Council said it did not consider this. This is fault. We would expect councils to consider if new evidence may cast doubt on a previous decision and to reopen the matter if appropriate.

Personal transport budget

52. I also have concerns about the way the Council and panel considered the personal transport budget. This is supposed to be a voluntary option for parents / carers who want to make their own transport arrangements instead of taking up an offer of transport.
53. Ms X’s request for a personal budget was based on her providing the transport she believed the Council should be providing, but which it was not because, in her view, the offer was unsuitable. Ms X requested a budget to include the cost of employing a trusted driver as well as petrol costs, so she could maintain her employment. Ms X did not want to continue doing the driving herself, although this was the option the panel considered. There is no evidence the panel considered how Ms X’s child could get to school if Ms X was no longer able to drive him. This is fault.
54. The panel said it could not consider historical cases where a sum above the current maximum budget had been agreed. However, councils also cannot have blanket policies and must always be willing to use their discretion to depart from policy in individual cases.
55. Applying the Council’s personal transport budget policy, someone travelling 10 miles a day, four single journeys per day, would receive a mileage rate in the region of 65p per mile if a budget of £5000 per year was provided. Ms X’s mileage was over twice this (96 miles a day). The offer of £5000 per year amounted to only 27p per mile. Ms X’s petrol costs will have risen significantly since January 2022, and this budget may now be insufficient to cover Ms X’s current petrol costs. The current government (HMRC) rate is 45p per mile to reflect costs in addition to fuel. I am not persuaded the Council or panel properly considered using their discretion to consider whether to depart from the usual policy. Whether the budget was appropriate also depended on whether it was a voluntary arrangement made in preference to a suitable offer; or whether Ms X was forced to provide transport because no suitable offer had been made.
56. It is welcome the Council have offered to backdate its offer of a personal budget to May 2021. The Council has agreed to hold open this offer until the conclusion of this investigation and its review.

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Agreed action

Within one month of my final decision

57. The Council will:
• Review its decision about the suitability of the transport it has offered.
• Write to Ms X and the Ombudsman setting out its decision and its reasons.
• If the Council decides the transport was not suitable, provide a remedy for any avoidable distress, expense and inconvenience to Ms X in line with our Guidance on Remedies. If Ms X remains dissatisfied at the end of this process, she can ask the Ombudsman to review the remedy offered.
58. The Council will ensure individual assessments to identify particular transport requirements of individual pupils are carried out at the time of the application and reviewed on receipt of new evidence.

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Final decision

59. There was fault in how the Council decided the transport provided was suitable. This casts doubt on the decision reached. The Council has agreed to review its decision. This is a suitable remedy.

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Investigator's decision on behalf of the Ombudsman