Summary: Mrs X complained about the Council’s application of its home to school transport policy. There was fault in the way the Council conducted its stage 2 appeal which caused Mrs X uncertainty. There was also delay holding the panel. The Council has agreed to apologise to Mrs X, reconvene a stage 2 panel and update its policy to reflect statutory guidance.

The complaint

1. Mrs X complained the Council unreasonably refused her application and appeal for her relative, Y, to be accompanied on home to school transport and failed to follow the correct appeals process.
2. Mrs X says the time spent pursuing the complaint has caused her frustration and uncertainty.

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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. I spoke to Mrs X about her complaint and considered information she provided.
6. I considered the Council’s response to my enquiry letter.
7. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments received before I made a final decision.

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What I found

Home to school transport

8. The “Home to school travel and transport guidance” (2014) provides guidance for councils on how to meet its duties to provide school transport for eligible children. The guidance outlines a statutory two-stage appeals process:
• Stage 1: a review by a senior officer. A parent can ask for a review within 20 working days of receiving the Council’s decision. A senior officer should respond within 20 working days and tell the parent the Council’s decision.
• Stage 2: review by an independent appeal panel. A parent can ask to escalate their appeal within 20 days of receiving the Council’s response at stage one and an appeal panel should take place within 40 working days of the request. The guidance recommends the parent should be able to make both written and oral representations to the panel.
9. Councils must have regard to statutory guidance and ensure local policies are in line with it, unless they can provide good reason to depart from it.

The Council’s policy

10. The Council’s “Home to School Transport” policy outlines the criteria for home to school transport and details how appeals will be held. It says:
• Passenger Assistants (chaperones) are provided where it is assessed as appropriate based on the needs of the child.
• As children become older the Council evaluates whether independent methods of travel are appropriate to develop their life skills.

11. The Council’s appeals policy consists of two stages:
• Stage 1: two independent casework officers review the original decision. The Council will send a detailed notification of the review to the parent and inform them of their right to request a stage 2 review. If the parent requests a stage 2, it will hold it within 40 days of receiving the request.
• Stage 2: an independent panel of two will consider written representations from the parent and casework officers involved. It says it will send a detailed written notification to the parent of the decision. This will include:
1. how the review was conducted;
2. information about other departments and/or agencies that were consulted as part of the process;
3. what factors were considered;
4. the rationale for the decision reached; and
5. information about the parent’s right to bring the matter to the Local Government and Social Care Ombudsman if they remain dissatisfied with the decision.

What happened

12. Mrs X is the primary carer of Y. Y has special educational needs and disabilities including limited vision. In February 2021 Mrs X applied for school transport to take Y to and from school.
13. In March 2021 the Council held a panel and agreed to fund education transport for Y. It wrote to Mrs X, informed her of its decision, and provided information about the appeal process.
14. Mrs X then asked the Council to provide a chaperone for the journey. The Council responded in April 2021 and told Mrs X it would not provide a chaperone.
15. In May 2021 Mrs X appealed the Council’s decision. She reiterated Y’s additional needs and said a chaperone would ensure her physical and emotional safety during the journey.
16. The Council held a stage 1 review. It sent Mrs X a letter stating the outcome. It told her the appeal for a chaperone was rejected. It acknowledged Y’s additional needs and vulnerabilities but said Y did not have behavioural difficulties which would require a chaperone. It told Mrs X of her right to appeal the decision and said a stage 2 panel would consider written and verbal representations from her.
17. In July 2021 Mrs X requested the Council hold a stage 2 panel. She continued to outline Y’s additional needs as the reason for the appeal.
18. The Council held a stage 2 panel in February 2022. It has not been able to provide us with any minutes or meeting record. It did not invite Mrs X to attend the Panel to hear her verbal representations. One of the Council officers that attended the panel noted the panel could not reach a decision based on the information available and recommended additional information about Y’s needs were considered during an annual review of her Education, Health and Care Plan.
19. Council emails indicate the Council did not believe a chaperone was necessary for safety reasons and noted Y’s need to develop her independence was a factor in the decision-making process.
20. The Council wrote to Mrs X told her the outcome of the stage 2 panel. It said that because there were no safety concerns about the transport arrangements, and for the purpose of increasing Y’s independence, it did not agree to provide a chaperone for the journey.
21. In April 2022 the Council spoke with Mrs X by phone. Council records indicate Mrs X understood the reason no chaperone would be provided. However, Mrs X remained unhappy and complained to us.
22. In response to our enquiries, the Council said the stage 2 panel was delayed due to staff shortages. It offered to apologise to Mrs X for the uncertainty it caused.

Analysis

23. The Council’s policy says it will hold a stage 2 panel within 40 working days of receiving a request. The stage 2 panel was not held until seven months after Mrs X submitted her appeal. This is fault and caused Mrs X uncertainty about the outcome. The Council’s offer to write an apology letter to Mrs X is appropriate to remedy any uncertainty the delay caused.
24. The Council was unable to provide the meeting minutes of the stage 2 panel. This is poor record keeping and is fault. The lack of proper records means Mrs X cannot be certain about how the decision to refuse her request for a chaperone was reached by the panel.
25. The Council’s policy says the stage 2 panel will consider written representations but does not say parents can make verbal representations. This is out of line with the statutory guidance which states a stage 2 panel should consider written and verbal representations. Councils should provide an opportunity for the parent or carer to state their case in person, whether virtually or face-to-face. Councils should provide this opportunity at the appeal stage unless they can show good reason for departing from the guidance.
26. Whilst the Council’s policy does not say it will accept verbal representations, in practice the Council told Mrs X of her right to provide verbal representations to the stage 2 panel when it wrote to her in mid-2021. However, the Council did not invite Mrs X to attend to provide any verbal representations when the panel was held in February 2022. This is fault.
27. I cannot say whether the outcome of the panel would have been different if Mrs X had been provided with the opportunity to make her verbal representations to the panel. However, the uncertainty about what may have happened is an injustice to her.

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Agreed action

28. Within one month of the final decision the Council will:
• Write to Mrs X and apologise for the delay in holding the stage 2 panel which caused her uncertainty about the outcome.
• Offer to hold a new stage 2 panel and consider Mrs X’s verbal and written representations as part of this, should Mrs X accept this offer.
• Review its practices to ensure it maintains accurate records of panel meetings and decision making.
29. Within three months of the final decision the Council will review its Home to School Transport policy to ensure its procedures give parents the opportunity to provide verbal representations as part of a stage 2 panel hearing, in line with the statutory guidance.

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Final decision

30. I have completed my investigation. I found fault and the Council has agreed actions to remedy the injustice caused by the fault and improve its services.

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Investigator's decision on behalf of the Ombudsman