Summary: Mr B complained the Council’s transport provider repeatedly failed to transport his disabled son to school, and the Council failed to properly respond to his complaints. We found the Council caused a service failure as it failed its duty to ensure Mr B’s son was transported to school in line with his special educational needs. The Council agreed to apologise to Mr B and make payment to remedy the injustice this caused him and his son.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about how the Council handled his concerns about its school transport for his son (Child X), who has special educational needs. He said:
• its transport provider had failed to collect Child X on at least 13 occasions in the 2021-2022 academic year;
• it failed to pay the agreed cost of each missed visit, or delayed making payments; and
• it failed to acknowledge, respond and allocate a reference number to his complaints.
2. Mr B said he experienced distress due to the inconvenience to transport Child X to school on short notice on several occasions and had a financial detriment as a result. He also said Child X experienced distress due to the change in his routine, which was worse due to his special educational needs.

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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 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

5. As part of my investigation, I have:
• considered Mr B’s complaints and the Council’s responses;
• discussed the complaint with Mr B and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and policy relevant to the complaint.
6. Mr B and the Council now 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

Council’s School Transport Policy

7. The Council’s Policy sets out circumstances in which a child with special educational needs will be entitled to receive school transport support. This includes children with an Education, Health and Care plan which the Council has assessed as requiring transport support.
8. Passenger assistants for school transport will only be provided in limited circumstances, this includes where a child has been assessed as needing the support due to special educational needs.
9. Where the Council has a duty to provide transport, it may agree to pay travel allowance for a parent to transport their child to school.
10. To deliver school transport the Council’s has agreements with transport providers which includes provision of private vehicles. Its Contract Management Team manages its agreements with its providers monthly through Key Performance Indicators (KPIs) which includes punctuality, reliability and complaints. If a provider breaches the agreement, the Council can apply penalties.

What happened

11. Mr B’s son, Child X, has autism and other health conditions. These are set out in his EHC Plan along with his special educational needs (SEN). Child X needs his SEN provision and set routines to attend school. If his routine is changed at short notice, he will normally act out physically and it can take him some time to regain control.
12. The Council agreed it has a duty to provide Child X with free school transport due to his SEN. It also agreed he needed support from a passenger assistant to ensure his transport could be delivered.
13. The Council arranged Child X’ school transport with one of its transport providers from the 2021-2022 academic year. This included a specific vehicle and the same passenger assistant for his school transport. Its transport provider allocated a specific driver to transport Child X.
14. However, between September 2021 to June 2022 the transport provider failed to collect Child X at the agreed times on at least 13 occasions. On each occasion the provider told Mr B with short notice it could not attend, or it would arrive up to two hours late for the pick-up due to limited availability of other drivers. The reasons given were in most cases related to COVID-19 sickness or shielding, or other sickness.
15. To ensure Child X attended school Mr B transported his son to school on each occasion the school transport was cancelled or delayed.

Mr B’s complaints

16. Mr B complained to the Council in late Autumn 2021. He said its transport provider had failed to transport Child X to or from school as agreed. This included:
• short notice cancellations, or replacement drivers would not be able to bring Child X to school within a reasonable time;
• delayed collections, which caused upset to Child X and distress for Mr B;
• an unsuitable vehicle being used, which had to be changed and caused Child X upset.
17. In response the Council apologised for the distress and inconvenience this had caused the family and said it would pay Mr B a travel allowance for the transport he had provided. It explained it had discussed the concerns with its transport provider, and found the issues were due to COVID-19 related sickness or shielding. It also said its Contract Management Team did not have concerns with the transport provider’s overall performance.
18. In late 2021 Mr B asked the Council to arrange a different driver to transport Child X.
19. In early 2022 Mr B told the Council its transport provider had missed seven collections and asked for a response to his request for a change of driver. He also questioned the processes the Council or its transport provider had in place to routinely test drivers for drug and alcohol use.
20. Mr B continued to email the Council, including a councillor and other Council departments, about the issues with Child X’s school transport, delays in payment of the travel allowance, further missed collections, and to get a response to his request for a different driver and how drivers were monitored for substance use.
21. The Council paid Mr B for the initial three missed collections, but as he had not received a response to his ongoing concerns. He asked the Ombudsman to investigate. At this time, the transport provider had missed 12 collections for Child X.
22. In Spring 2022, we told Mr B and the Council his complaint had not yet completed the Council’s complaint process. We asked the Council to consider Mr B’s complaint and provide its final complaint response.
23. The councillor Mr B had included in his complaints, responded to Mr B’s concerns a month later. He explained:
• the transport provider and the Council was struggling to provide the transport due to the shortage of drivers, which was well published. This meant it was not possible to keep drivers in reserve;
• the recruitment and retention of drivers had been challenging;
• COVID-19 cases were still high and impacting staffing levels, which included late absence notices;
• it had asked its transport provider to allocate an alternative driver for Child X; and
• all outstanding travel allowance payments for missed collections were being processed.
24. The Council provided its final complaint response to Mr B in Summer 2022. It explained it, its councillor, or its transport provider had responded each time he had raised concerns. It acknowledged Mr B’s concerns were reasonable. It apologised for the upset and distress Mr B and Child X had experienced as a result of the unplanned absences and shortage of qualified drivers, but sometimes circumstances were outside the Council’s control. It also said it would review the service Child X, and other children had experienced, including the performance of its transport provider.
25. Mr B shared more information from Child X’s allocated drivers’ social media accounts, which he said showed alcohol and drugs use, and inappropriate comments regarding disabled people.
26. Shortly after, Child X was allocated a different school transport driver.
27. Mr B remains dissatisfied with the Council’s handling of his concerns, and the school transport Child X received. He asked the Ombudsman to consider his complaint.

Analysis and findings

School transport

28. The Council agreed it had a duty to provide school transport to Child X, and to provide a passenger support assistant. While the Council was entitled to contract its transport service to transport providers, it remained responsible for its transport providers actions and the services Child X received.
29. I acknowledge the difficulties the Council, and its transport provider, has had since the start of the academic year in 2021 due to the ongoing impact COVID-19 has had on staffing sickness and levels. Including other external factors which may have impacted the ability to recruit and retain drivers.
30. I also acknowledge the transport provider tried to provide replacement drivers when this was possible.
31. However, regardless of this, it remained the Council’s duty to provide Child X with suitable school transport which met his special educational needs. I found the number of missed collections (16) over a 10-month period amounted to a service failure.
32. While the Council provided a travel allowance to Mr B, which covered his fuel costs. It has not properly remedied the distress and uncertainty Mr B and Child X experienced. Nor the inconvenience Mr B experienced in having to provide the school transport himself to ensure Child X did not experience further distress, or a loss of educational provision.

Child X’s allocated driver and Safeguarding

33. In January 2022 Mr B asked the Council about how it, or its transport provider, monitored its drivers for alcohol or drugs use. The Council told him this was monitored through random testing when the provider deemed this necessary.
34. I understand Mr B had concerns at the time, primarily due to the amount of absence Child X’s driver had. However, I am not satisfied there was enough information, or concerns, available at the time for the Council to raise a safeguarding concern regarding the driver.
35. In summer 2022, when Mr B provided further information from Child X’s allocated driver’s social media accounts regarding substance use and derogatory comments. The Council’s transport provider allocated Child X a different driver. There were therefore no safeguarding concerns to consider at the time.
36. It is not for the Ombudsman to decide whether the Council or its transport provider should have replaced Child X’s driver sooner, as such matters relates to internal staffing issues, and there was no evidence of harm or danger to Child X.

Complaint’s handling

37. Mr B complained to the Council in October 2021, and continued to raise his concerns to the Council, its transport provider, and a councillor until June 2022. On most occasions one of these provided a response to Mr B’s concerns.
38. However, although Mr B received responses, the responses he received did not properly address and resolve his concerns. Nor did he receive a final complaint response until June 2022, six months after the Council’s stage one complaint response. He could therefore not bring his complaint to the Ombudsman’s attention until then. This was fault.
39. I acknowledge Mr B included the Council, the transport provider, a councillor, and other Council departments in his emails. This may have caused some confusion. However, the Council was responsible for the transport service Child X received, and to respond in line with the Council’s Corporate Complaints Policy, regardless of any responses from its councillor or the transport provider.
40. I have therefore found the Council at fault for failing to acknowledge Mr B’s complaints and respond as set out in its Corporate Complaints Policy. It is clear the Council’s view was the same as the transport company and its councillor, any response he should have received would therefore have been the same or similar. The distress Mr B experienced is therefore limited to the frustration this caused, and the delay in his ability to bring his concerns to the Ombudsman’s attention.

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Agreed action

41. To remedy the injustice the Council caused to Mr B and Child X, the Council should, within one month of the final decision:
1. apologise in writing to Mr B, and pay him £200 to acknowledge the distress, inconvenience he had as a result of the Council’s failure to provide suitable and timely transport to his son on 16 occasions;
2. pay Mr B £150 to use as he sees fit for the benefit of Child X, for the distress Child X experienced during instances where he was left waiting for the Council’s transport provider’s pickups at home or in school, which Mr B could not prevent; and
3. pay Mr B an additional £100 for the time and trouble he had to bring his concerns to the Council’s and Ombudsman’s attention.
42. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. provide an update on the Council ongoing review of its school transport service for Child X and other families. Including any learning and actions taken as a result of this complaint; and
5. remind its staff to respond to complaints as set out in the Council’s Corporate Complaints Policy, regardless of whether responses have also been provided by councilors, or commissioned service providers. This is to ensure, once the Council’s internal complaint process has been completed, all complainants have the opportunity to bring their concerns to the attention of the Ombudsman, or other relevant body.

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Final decision

43. I have completed my investigation with a finding the Council caused a service failure, which caused an injustice.

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Investigator's decision on behalf of the Ombudsman