Summary: Mr X complained about how the Council considered his appeal for free school transport. The Council was at fault in how it recorded the appeal panel hearing and for the information in its appeal outcome letter. This caused Mr X frustration and uncertainty, for which the Council will apologise. The Council was also at fault for delay in acting when Mr X’s child was out of education. This did not cause a significant personal injustice. The Council will carry out improvements to its practice to prevent the faults occurring again.

The complaint

1. Mr X complained about how the Council considered his appeal for free school transport for his daughter, W. Mr X said the Council's independent stage two panel did not properly consider the information available to it and so its decision to offer W transport with other children in a taxi was flawed. He also said the Council should have offered W alternative educational provision for the time when they did not attend school between September 2021 and April 2022.
2. Mr X wanted the Council to offer W transport in a taxi on their own with an escort. He said the Council's decision caused him anxiety and low mood.

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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 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. 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)
6. 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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How I considered this complaint

7. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mr X and the organisation 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

Relevant law and guidance

Free school transport

9. The Education Act 1996 places a duty on councils to make such travel arrangements as they consider necessary to facilitate attendance at school for eligible children. Eligible children include those who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
10. The Home-to-school travel and transport statutory guidance (the Guidance) says councils should have an appeals process in place for parents who wish to appeal decisions about free school transport including the arrangements offered.
11. The Guidance recommends councils adopt a two-stage appeals process:
• Stage 1: review by a senior officer within the Council; and
• Stage 2: independent appeal panel to consider written and verbal representations. The panel should then send a detailed decision letter setting out: the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about complaining to us.

The Council's travel policy

12. The Council's policy says that once it accepts a child is eligible for free school transport, it will consider what arrangements are most suitable based on the child’s needs.
13. It notes the Council will give priority to solutions that reduce reliance on Council services and develop the child’s independence. In line with this approach, the Council prefers offering primary age children a Travel Assistance Budget (TAB). This budget covers the cost of the child’s travel arrangements whether that is petrol for driving the child to school, or the price of public transport. The policy also states the Council will only arrange for an escort in a vehicle if this is necessary for safety reasons and the arrangement is subject to review.

Children out of school

14. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age, receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the various legal powers to compel parents to ensure their child’s regular attendance at school. This includes a fixed penalty notice (a fine). Councils can also prosecute parents. If the court finds a parent guilty of an offence they can receive a fine of up to £2500 or imprisonment of up to three months.
15. Where children of compulsory school age are absent from school because of illness, exclusion or otherwise, the relevant council has a duty to make suitable educational provision. This is referred to as ‘alternative provision’.
16. Caselaw has found the word ‘otherwise’ is intended to cover situations where it is “not reasonably possible for a child to take advantage of any existing suitable schooling”. Where it is reasonably practicable for a child to access the education on offer then the duty to provide alternative provision does not apply.

What happened

Background and outcome of the previous Ombudsman's investigation

17. Mr X’s child, W, has special educational needs and has received free school transport for several years. W previously travelled on a bus. The bus had an escort to support the children during the journey.
18. In early 2021, Mr X told the Council he felt the bus was no longer suitable because W’s needs had increased. He said a budget to pay his costs transporting W to school would not be feasible because he and his partner had health issues. He wanted W to travel to school in a taxi with an escort. The Council refused and Mr X appealed its decision.
19. In its stage two appeal outcome in April 2021, the Council said it would offer Mr X a travel budget to cover the cost of a taxi to and from W’s school if Mr X would act as escort.
20. The Council subsequently decided to arrange a solo taxi with escort because W was on a part-time timetable which made travelling by bus unfeasible. The Council told Mr X the arrangement would remain in place until the end of the summer term, by which time W should be attending full-time.
21. Mr X was unhappy and complained to the Ombudsman in June 2021.
22. In September 2021, the Council confirmed to Mr X it would no longer offer W solo taxi travel with an escort. It said W could either return to the bus they previously travelled on, or Mr X could accept the offer of a budget for a taxi, if he would escort W. Mr X refused both options and W stopped attending school.
23. By late September 2021, the Council became concerned about W’s absence from school and reiterated its offer of a budget. It also said it would arrange for an occupational therapist to travel on the bus with W to assess their needs and see what support could be offered. Mr X again refused.
24. The Ombudsman's investigation (21 003 111 - Local Government and Social Care Ombudsman) found fault with how the Council carried out the second stage of Mr X’s appeal. We also found it at fault for failing to include information about how to complain to the Ombudsman in its stage two appeal outcome letter.
25. The Council agreed to carry out a new stage two appeal for Mr X as a result of the Ombudsman’s investigation. It also agreed that if the outcome of its new appeal was for a different travel award, it would consider what other remedy to make to Mr X.

2022 stage two appeal

26. In advance of the new stage two appeal, W’s school commissioned an Occupational Therapy (OT) assessment of W’s ability to travel on a bus. It found that during two observed trips, W struggled sometimes with sensory information, which caused some anxiety and discomfort. Overall, W coped well and managed their symptoms with minor interventions like reassurance and re-direction of their focus. The OT did not suggest a bus would be an inappropriate method of transport for W.
27. The Council held the new stage two appeal in mid-February 2022. I asked the Council for records from the appeal hearing. It sent me the panel chair’s minutes. They only summarise the information Mr X gave verbally at the meeting.
28. The panel’s decision letter stated only that “having reviewed your child’s case, we are pleased to inform you that your appeal has been accepted, and we are offering [W] a space in a taxi for the rest of this academic year”. It explained the Council's travel assistance team would contact Mr X to arrange the transport.
29. The Council contacted Mr X to arrange transporting W to school in a shared taxi with other children and one escort. Mr X was unhappy and said he had given the panel sufficient information to prove W needed a solo taxi with an escort.
30. The Council told Mr X it agreed with the panel’s decision to offer W a shared taxi. It explained it was satisfied a shared taxi was safe for W. However, it said it would arrange a solo taxi with an escort for W until the end of the academic year.
31. Mr X was unhappy and complained to the Ombudsman again.
32. The Council decided to award W a solo taxi at the start of the next academic year, in September 2022. In total, W was out of education between September 2021 and April 2022.
33. I asked the Council how it considered whether it should make Mr X a further remedy given that its February 2022 appeal came to a different conclusion to that of the flawed April 2021 appeal. The Council said Mr X had told it he felt £16,000 would be an appropriate remedy. It did not agree to make any financial remedy because it was of the view that W’s absence from school was due Mr X’s refusal to engage with its offers of transport in September 2021.

Findings

Decision to offer a shared taxi

34. The Council's February 2022 panel records are flawed. They only contain the information Mr X gave verbally at the hearing. They do not include what other information the panel considered, including the substantial number of documents Mr X sent, any evidence from the Council or how the panel balanced those arguments to come to its decision. This was fault which caused Mr X frustration and uncertainty. The Ombudsman expects councils to keep appropriately detailed records of appeal hearings to justify its decision-making. Failure to do so inevitably calls into question the validity of the outcome.
35. The Guidance states the stage two panel outcome letter needs to include certain information including the factors the panel considered, its rationale for its decision and how to complain to the Ombudsman. The Council's letter only stated the panel upheld Mr X’s appeal and would offer W space in a taxi for the remainder of the year. In addition, this information was not clear; it was not until the Council's travel assistance team contacted Mr X that he became aware the offer was for a place in a shared taxi, not a solo taxi as he expected. The letter does not comply with the Guidance, which was fault. This meant Mr X could not be assured the panel’s decision was properly made, which caused him avoidable frustration.
36. The Ombudsman previously found fault with information the Council included in the stage two panel appeal outcome letter it sent to Mr X in April 2021, so it is concerning to see the fault occur again. This compounded the injustice to Mr X. Where we find fault with how panels are held, we normally recommend a new panel hearing. However, the Council has since decided to award W a solo taxi with an escort, which is Mr X’s desired transport.

Period W was out of education

37. The Council's view was that once W had returned to school full time, there was no need for solo taxi transport. Therefore, in September 2021, the Council reiterated its previous offer of a travel budget or bus. Mr X was unhappy with those options and when it became apparent W was not attending school by late September, the Council offered to arrange for an OT to travel on the bus with W to assess their needs. It also reiterated the offer of a travel budget. The Council initially took suitable steps to explore ways to ensure W could continue to attend school.
38. However, the Council did not take any further action after late September. This was fault. The Council should have been considering what other steps it needed to take to ensure W received a suitable full-time education. It should have considered whether it needed to offer alternative provision, or start formal action such as issuing a fine for non-attendance or legal action to ensure Mr X brought W to school. On balance, this did not cause Mr X a significant injustice. A suitable school was available for W to attend and the Council had offered W the transport it considered suitable for their needs. It is more likely than not that it would have decided it did not have a duty to provide W with alternative provision. Therefore, it should have taken steps to compel Mr X to ensure W attended school.
39. The Ombudsman cannot question a council's decision if it is made without fault. After our previous investigation, the Council agreed to consider a remedy for Mr X if the outcome of the new appeal was different. The outcome was different, and the Council did consider whether a remedy was needed. It decided it was not, as it had offered Mr X suitable transport for W from September 2021 and it was Mr X's choice not to accept it. The Council appropriately considered whether a remedy was needed and decided it was not. There was no fault in how it reached this decision and so I cannot question the decision reached.

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Agreed action

40. Within one month of the date of my final decision, the Council will apologise to Mr X for the frustration and uncertainty caused by its failure to properly record the panel hearing or send the hearing outcome in line with the statutory guidance.
41. Within three months of the date of my final decision, the Council will:
• review the information it gives panel members to ensure they are aware of the need to keep accurate records of hearings and the panel’s decision-making;
• produce a template letter for appeal decision outcomes. It should ensure staff are prompted to include the information required in the statutory guidance and that it signposts parents to the Ombudsman if they remain dissatisfied; and
• remind staff that when a child is out of education, they must consider what action the Council should take; whether that is arranging alternative provision or starting attendance enforcement action.

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Final decision

42. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman