Summary: B missed almost a year of education because the Council was unable to arrange school transport for him. The Council has agreed to make a symbolic payment to recognise the impact on B’s education.

The complaint

1. Mrs M complained the Council did not provide school transport for her son, B, and as a result, he was unable to attend school for almost a year from September 2021.

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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.
3. Service failure can happen when an organisation fails to provide a service it should because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by the Council to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
4. We must consider whether any fault or service failure 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)
5. Once 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 Mrs M; and
• information provided by the Council.
7. I invited Mrs M and the Council to comment on my draft decision.

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What I found

8. Mrs M's son, B, has significant needs which affect his learning, development and communication.
9. B is a pupil at a special school. He was due to start his post-16 education at the school in September 2021. The Council agreed to provide transport, as it had done for previous years.
10. Mrs M made a formal complaint to the Council in December 2021. She said B had been without transport and therefore unable to attend school since the beginning of term.
11. In January 2022, the Council arranged transport for B on a bus with 7 other pupils. Unfortunately this proved unsuccessful. Because of his disability and challenging behaviour, there were concerns for the safety of B, the driver and the other passengers. The Council decided to explore other options.
12. The Council replied to Mrs M’s complaint in February 2022. The Council explained:
• it does not provide transport itself. It has contracts with private operators;
• it had notified an operator when it approved B’s transport, but the operator had ‘missed’ the request. By the time the mistake came to light, there was no longer a space on the route so the Council had to tender for a new route; and
• there was a national shortage of drivers, and despite multiple tenders and direct approaches to providers, it had not received any bids and was unable to provide transport for B and other pupils.
13. The Council apologised and said it would reimburse Mrs M if she had been able to take B to school. Mrs M does not drive and has been unable to get B to school.
14. In May 2022, the Chair of Governors of B’s school wrote to the Council to complain. B was still without transport and unable to get to school.
15. The Council wrote to the Chair of Governors to say:
• it was ‘actively pursuing’ the option of transport for B in a larger vehicle with one other pupil, but had not received any response from the ‘market’ for the two tenders it had put out;
• it only provided ‘solo’ transport in exceptional circumstances, and managers had not approved solo transport for B. The Council explained that given the shortage of drivers, this would be an inefficient use of resources; and
• it understood the frustration the lack of transport was causing Mrs M and B, but said it was doing all it could to resolve the situation.
16. Unhappy with the Council’s response, Mrs M complained to the Ombudsman.

Update

17. We contacted the Council to ask for information.
18. The Council said it had not approved ‘solo’ transport because:
• its updated transport policy said this will only be approved for complex medical needs and where there are formal 1:1 support arrangements in place at school;
• the cost would be significant on an already pressurised budget; and
• it would be inefficient to use scarce vehicles given the current driver shortage to transport only one pupil.
19. It nonetheless said Mrs M could have used the transport appeals process to request ‘solo’ transport for B in a taxi.
20. The Council said it had provided transport from June 2022 in a shared vehicle with one other pupil, and this would continue for the new school year from September.

Consideration

21. The Council agreed to provide school transport for B in September 2021; transport is necessary to enable him to attend the special school where he is a pupil.
22. The Council said it was let down by an operator and has since been unable to make suitable arrangements because of the national shortage of drivers and the lack of response from the ‘market’ to its tenders. The Council said B has been without transport because of circumstances outside its control.
23. While I understand the Council made efforts to secure transport for B, and the national shortage of drivers complicated matters, the Council remained responsible for B’s transport. We describe its inability to provide transport in these circumstances as a ‘service failure’. It was fault.
24. In light of the amount of school B has missed, I was surprised that managers did not consider B’s circumstances to be ‘exceptional’ and therefore did not justify ‘solo’ transport. While I appreciate the Council was trying to be helpful, I do not agree with the Council’s suggestion Mrs M should use the appeals process to request ‘solo’ transport. The Council agreed to provide transport. It was aware of B’s needs, including his history of challenging behaviour on transport, since it provided transport for a number of years. The Council should have made the necessary arrangements to ensure B could attend school.
25. The Council did not provide transport between September 2021 and June 2022, except for a few weeks in January. As a result, B was unable to attend school. He missed much of the first year of his post-16 education. This is a significant injustice.

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Agreed action

26. We have published guidance to explain how we calculate remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, as in the case of Mrs M and B, we may recommend the Council makes a symbolic payment to acknowledge the impact of the fault and what could have been avoidable distress.
27. The Council has agreed to:
• apologise to Mrs M and B;
• make a symbolic payment of £4,800 to acknowledge the education B missed.

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Final decision

28. I have ended my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman