Summary: Mrs X and Mr Y complained about the mileage rate the Council awarded for their son’s school transport. The Council failed to properly consider Mrs X and Mr Y’s request for school transport in 2016. The Council agreed to apologise and backdate the higher mileage rate to January 2019 to remedy the injustice.

The complaint

1. Mrs X and Mr Y complained about the mileage rate the Council awarded for their son’s school transport.
2. Specifically, Mrs X and Mr Y complained:
• The Council hid the fact there was a higher mileage rate, which was not part of its published policy, but which the Council awarded at its discretion when a child or young adult required solo transport.
• The Council applied the standard mileage rate arbitrarily, without assessing their son’s transport needs.
• They would not have accepted the standard rate if they had known a higher rate existed.
• The fact the Council did not publish the higher rate was meant they could not challenge its decision.
• The Council reneged on a promise to backdate the higher mileage rate.
3. Mrs X and Mr Y missed higher mileage rate payments they consider they were entitled to. They also found it stressful and traumatic trying to challenge the Council to backdate the higher rate.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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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What I have and have not investigated

7. Mrs X and Mr Y’s complaint relates to a Council decision dating back to 2016. However, they were not aware of the potential fault and injustice until 2021, and they challenged the Council’s decision at the earliest opportunity. I have therefore exercised discretion to investigate all events dating back to the Council’s decision in 2016.

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How I considered this complaint

8. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainants.
• Documents provided by the Council and its comments in response to my enquiries.
• The Education Act 1996.
• Home to school travel and transport guidance - statutory guidance for local authorities (July 2014).
• The Council’s home to school and college transport policy.
9. Mrs X, Mr Y, and the Council 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

Guidance and legislation

10. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘Eligible children’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

The Council’s transport policy

11. The Council’s transport policy confirms where a child is entitled to transport or assistance, it will be by one of more of the following:
• A rail or bus season ticket.
• A free place on a bus.
• A mileage allowance to cover fuel costs. This is 25p per mile.
• By taxi in exceptional cases.
• A contribution towards the cost of travel.
12. Where appropriate, parents may be offered the mileage allowance to transport their children to school.
13. The Council recognises transport needs may vary as a child develops. It will review their entitlement to transport at the time of the annual Education and Health Care Plan (EHCP) review.

What happened

14. I have summarised below some key events leading to Mrs X and Mr Y’s complaint. This is not intended to be a detailed account of what took place.
15. Mrs X and Mr Y’s son, who I will call A, suffers from cerebral palsy, visual impairment, autism, a sensory processing disorder, and anxiety. He is very sensitive to noise and can become severely distressed. A’s behaviour can be challenging so he has a behaviour management programme. He uses a wheelchair and needs help from adults to transfer.
16. Mrs X and Mr Y moved into the Council’s area in 2016. They requested help with school transport for A in November 2016. A’s referral form confirms his cerebral palsy, and that he uses a wheelchair. It said he needed a fuel allowance. The section of the form titled ‘solo/shared’ transport was marked ‘N/A’.
17. The Council wrote to Mrs X and Mr Y confirming they could claim expenses for taking A to school. It also confirmed the mileage rate was 25p per mile.
18. In January 2019, A was diagnosed with Epilepsy. He suffers focal seizures which require rescue medication. He has an emergency seizure protocol. A’s seizures can be triggered by stress, over-stimulation, anxiety, or lack of sleep.
19. A’s most recent EHCP confirms he requires one to one support at all times during the school day. He sometimes needs two to one support to ensure his safety, manage his behaviour, and reduce or manage his anxiety.
20. Mrs X and Mr Y contacted the Council in June 2021 after the Council mistakenly applied the higher mileage rate of 40p but then withdrew it. Mrs X and Mr Y said the Council’s decision from 2016 was based on its failure to carry out an assessment of A’s needs. They also said the Council concealed the fact it has a higher mileage rate.
21. The Council said the Special Educational Needs Assessment Team (SENAT) assessed A’s eligibility and the nature of transport needs in 2016. It said the referral form did not state A needed solo transport. The Council said it would review that decision and confirmed it would contact A’s school as part of its review. It also confirmed if it decides A needs solo transport it will award the increased rate and backdate it, depending on when his needs meant he could not tolerate travelling with others.
22. The Council wrote to Mrs X and Mr Y with the result of its review on 24 September 2021. It said it contacted A’s school and the school confirmed A has solo transport on school trips. However, the Council suggested this was because A’s wheelchair was not crash tested and, if it was, he would likely be able to join a wheelchair accessible minibus. The Council therefore decided A could access shared transport. It said there was no evidence he needed solo transport.
23. Mrs X and Mr Y said the Council did not carry out a formal transport assessment in 2016. Its assessment from September 2021 is the first time it assessed A’s needs. Mrs X and Mr Y said the review panel’s decision was flawed and made false assertions:
• First, they said it was false A’s school said he could use shared transport if his wheelchair was crash tested. They invited the Council to contact the school’s principal about this.
• Second, they said it was false to say there is no evidence from parents, school or health to suggest A needs solo transport. They said the Council had failed to consider verifiable evidence about A’s complex behavioural and sensory processing needs which show he needs solo transport.
24. The Council confirmed it contacted A’s school’s Principal over the miscommunication of the school’s view. The principal confirmed A would not use shared transport. The Council said this, on its own, was not enough and it was seeking evidence in support.
25. In October, the Council confirmed it received further information from A’s school, including examples of incidents and their frequency. It accepted A needs solo transport and said it would award the higher mileage rate going forward.
26. A’s transport plan confirms he requires solo transport because noise made by others can make him become severely distressed and can trigger seizures.
27. Mrs X and Mr Y thanked the Council and asked it to backdate the payment to 2016, as per its earlier agreement, because their son’s behavioural and sensory needs have been present since then.
28. The Council refused to backdate the payment because:
• The information it gathered was based on A’s recent changes of needs, not historical presentation.
• A’s school sought more funding for him in August 2021, which the Council agreed. This request said A developed increased need for a sensory program and behavioural strategies demanding more support.
• Mrs X and Mr Y stated in A’s last school review: ‘A has seen increased levels of anxiety since his Epilepsy diagnosis’.
• A’s need for two to one support was included in his EHCP for that year but was not included the previous year.
29. Mrs X and Mr Y referred to the Council’s agreement to backdate the payment in line with A’s needs. They asked when the Council considered the backdate should be to. They also asked the Council why it did not assess A’s specific needs in 2016 and why it did not make them aware of the increased rate then.
30. The Council said its first decision was not a practical assessment, but a judgement made from the available information. It agreed to backdate the increased rate to 1 January 2021, because this tied in with its agreement of A’s increased needs.
31. Mrs X and Mr Y complained to the Council in January 2022. They said the Council did not publish the higher mileage rate and its lack of transparency meant parents could not question the lower rate and were unfairly denied access to the higher rate. They also said the Council did not assess A’s level of need in 2016, which it had a statutory duty to do.
32. In response, the Council said:
• Its responsibility is to assess whether pupils meet the eligibility criteria for transport assistance. If a pupil is eligible, then the type of transport offered is subject to a separate decision. Parents can refuse Council transport and transport their child themselves instead. It said where a parent or carer chooses to transport their child the Council is not required to incur a higher cost than it would have incurred if it provided transport itself.
• Its decision on reimbursement when parents transport their children to school is entirely at its discretion.
• It understood A was assessed for transport eligibility by SENAT in November 2016. Mrs X chose to transport A herself. For that reason, SENAT did not seek to understand what sort of transport would be suitable for A if the Council provided it. The Council therefore first offered 25p per mile reimbursement which Mrs X and Mr Y accepted.
• It understood from annual reviews between November 2016 and February 2021 there was no suggestion A’s care and learning needs changed.
• In February 2021, A’s school reported his care and learning needs had changed. The Council therefore agreed to review A’s transport needs and agreed he was likely to need solo transport if the Council were to provide it. The Council agreed to offer the higher rate of 40p per mile which was backdated to the time A’s needs changed.
• It did not uphold Mrs X and Mr Y’s complaint and found its first decision to offer the 25p rate was suitable.
33. Mrs X and Mr Y asked to escalate their complaint to stage two. They said the Council did not address the fact its higher mileage allowance is hidden from the public. Mrs X and Mr Y also challenged the Council’s interpretation of its statutory duties. They repeated the Council failed to assess or identify A’s transport needs in 2016. They said that meant the Council did not make an informed decision when it allocated the lower mileage rate and had no basis for stating there was no suggestion A could not use shared transport.
34. The Council sent its final complaint response on 27 May 2022. It said:
• Its stage one response clearly set out its position about the statutory guidance.
• Its obligation was to assess A’s eligibility for provision of transport arrangements, not his travel needs. Mrs X elected to transport A, so the Council is not responsible for his transport and there was no requirement to assess or further understand his transport needs.
• Its offer of help is at the Council’s discretion and is a goodwill gesture of support. It is not an ‘award’ that can be appealed.
• It accepted the higher rate of 40p per mile is not published in its policy. However, it said the rate offered was not to serve as a starting point for negotiations, it was the standard rate for children that would otherwise be transported by the Council.
• It did not uphold Mrs X and Mr Y’s complaint they should have been able to challenge the rate the Council offered. It said it offered help in line with its published policy and Mrs X and Mr Y accepted it.
• It will consider publishing both mileage rates as part of a review of fuel reimbursement.
35. Mrs X and Mr Y brought their complaint to the Ombudsman on 30 May 2022.

My investigation

36. In response to my enquiries, the Council told me A’s transport plan is from 2021 when SENAT assessed him for solo transport. The Council said this was after Mrs X and Mr Y challenged the mileage rate from the 2016 assessment. However, the Council said its 2016 assessment did not say solo transport was required and the relevant box for solo transport on A’s referral form was not ticked. It therefore applied the standard rate, which Mrs X and Mr Y accepted.
37. The Council also told me it considers offering the higher mileage rate in situations where the parents/carers are prepared to transport a child to school, who has been assessed as needing solo transport, and the Council cannot arrange transport more cost effectively. In A’s case, Mrs X and Mr Y always intended to provide transport and so no assessment was needed. The Council applies the standard rate in such cases. In addition, and as above, the Council said A’s referral form did not state he needed solo transport.
38. The Council said the SENAT review in summer 2021 confirmed A’s need for solo transport and backdated this to January 2021. The Council said its initial review found no evidence of a requirement for solo transport. Mrs X and Mr Y challenged this decision, which led to SENAT speaking to A’s school and agreeing to the higher rate in line with a decision for increased funding for his school needs made in August 2021. SENAT agreed to further backdate the higher rate to January 2021 after discussions with Mrs X and Mr Y. In response to my draft decision, Mrs X and Mr Y said the Council has not yet made the backdated payment.
39. The Council confirmed it has committed to reviewing its transport policy. It currently has an internal note which highlights the standard rate is 25p per mile and that a higher rate for children requiring solo transport is 40p. The assessment is based on the referral made by SENAT or any reassessment if issues with existing arrangements highlight a possible increase in care needs.
40. As part of my investigation, I contacted the Principal of A’s school about any progression or changes in A’s care and support needs.
41. The Principal told me they had located A’s notes from the time he was first assessed by the school in 2015. The notes confirm A’s presentation at that time was similar to the present. He had a behavioural management strategy from his previous school, and his needs and management strategies align similarly to his needs which continue to be in place now.
42. The Principal also confirmed A’s staffing ratio in school was increased following his Epilepsy diagnosis in 2019.

Analysis

43. The Council does not have a statutory duty to assess a child’s transport needs, insofar as this is not prescribed within the Education Act 1996. However, the Council does have a duty to provide transport to eligible children and it can only do so by carrying out some form of assessment.
44. The decision to provide a child with transport is not solely determined by what the law says. For example, the law does not say how much the Council should pay if a parent accepts a mileage allowance payment instead of the Council providing transport. The Council must have regard to its own policies when it assesses a child’s transport needs and makes that decision.
45. The Council decided A was eligible for school transport in 2016. It did not complete an assessment of A’s transport needs, because Mrs X said she would take A to school. The Council also said there was no evidence then to suggest A needed solo transport, so it awarded its standard mileage allowance of 25 pence (which it awards for children who can travel with others).
46. There are some issues with the Council’s decision making here. First, it said there was no evidence A needed solo transport. Well, the Council did not assess A’s transport needs or ask for evidence about this. The Council has a procedure where it can award a higher rate for higher needs, yet in this case I have not seen any evidence the Council considered A’s specific transport needs. That was fault.
47. Second, the Council’s published transport policy does not state the fact it can award a higher rate for children who need solo transport. Mrs X and Mr Y were therefore unaware of the higher rate and were unaware they may need to provide evidence of A’s need for solo transport. That was fault.
48. Third, Mrs X consented to receive expenses instead of the Council providing transport. The Council said Mrs X ‘accepted’ the lower mileage rate of 25 pence. That was not the case. The Council ‘awarded’ the lower rate and Mrs X was unaware of the higher rate. If the Council is to relieve itself of the duty to provide transport it must be clear about the options available. It failed to do so in this case. That was fault.
49. The Council has two mileage rates because it recognises some children have greater needs than others. Yet in this case the Council applied its lower rate without assessing A’s individual needs. Its decision was therefore flawed and was not made correctly in line with its procedure.

Injustice

50. The Council’s failure to assess A’s transport needs in 2016 caused frustration to Mrs X and Mr Y when they found out in 2021. It also caused uncertainty about the mileage rate they were entitled to.
51. The Council agreed to review the matter. I consider it has remedied some of the injustice by carrying out a full assessment of A’s needs, awarding the higher mileage rate, and by agreeing to review its transport policy. However, the Council’s fault has also caused uncertainty about the date the higher rate should apply from.
52. If the Council had assessed A in 2016, it is difficult for me to say what the result would have been.
53. I appreciate Mrs X and Mr Y’s view that A would have needed solo transport from the outset, due to his complex needs and sensory processing difficulties, but I cannot make that decision.
54. The Principal of A’s school indicated A’s presentation in 2016 was similar to now, and confirmed his current behavioural management strategy remains similar to 2016. However, the Principal also confirmed A’s staffing ratio at school increased when he was diagnosed with Epilepsy in 2019.
55. I found A’s Epilepsy and associated seizures to be a central part of his travel plan. It also formed part of the Council’s consideration when determining he needs solo transport.
56. In response to my draft decision, Mrs X and Mr Y said it was A’s behaviour and risk of harm which changed its decision, not his Epilepsy diagnosis. They also said other children with Epilepsy do not have solo transport.
57. I cannot comment on the transport needs of others. However, A does not only suffer from Epilepsy. He has a combination of complex care needs. When the Council awarded A solo transport it said it was due to a change in his needs, which were greater than before.
58. I therefore consider it is suitable to assert A’s care and support needs, and in turn his transport needs, changed and increased in January 2019 following his Epilepsy diagnosis.

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Agreed action

59. Within four weeks of my final decision, the Council agreed to:
• Apologise to Mrs X and Mr Y for failing to properly consider their request for school transport in 2016.
• Backdate the higher mileage rate of 40p to 1 January 2019 and make a payment to Mrs X and Mr Y accordingly.
60. The Council should provide us with evidence it has complied with the above actions.

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Final decision

61. I have completed my investigation. The Council failed to properly consider Mrs X and Mr Y’s request for school transport in 2016. The Council agreed to apologise and backdate the higher mileage rate to January 2019 to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman