Summary: Ms X complains the Council failed to consider backdating a transport award when it reviewed her case on appeal. Ms X also complains about the conduct of the appeal. During this investigation the Council agreed to consider the request to backdate. This action resolves this part of Ms X’s complaint and no further action from the Ombudsman is needed. While the decision is not favourable to Ms X, the Ombudsman has no basis to question the outcome. There is no evidence of fault in the way the appeal was conducted.

The complaint

1. Ms X complains the Council failed to backdate a transport award it offered after a recommendation from the Ombudsman to hold a fresh appeal due to previous failings in its process. Ms X says if the Council had followed the correct process originally it may have offered to fund transport in November 2021 rather than in May 2022. Ms X wants the Council to backdate the transport award.
2. Ms X also complains the appeal did not consider the effect on her daughter’s mental health of the transport arrangements offered. Ms X says Government guidance on school transport says for arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.

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The Ombudsman’s role and powers

3. 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)
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 have considered our previous decision which recommended the Council hold a fresh transport appeal. I have considered the documents from that appeal and Ms X’s complaint correspondence to us.
6. In my draft decision I recommended the Council consider the request to backdate. The Council agreed to do so, and I have considered its response.
7. I have considered Ms X’s comments on my draft decision.

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What I found

What happened

8. Ms X previously complained to us the Council had unreasonably refused to provide alternative transport for her daughter to get to school. Ms X says that as a result she had to incur expense taking her daughter to school every day. Ms X’s daughter had an Education, Health and Care Plan and travelled to a special school by shared transport provided by the Council. Ms X said her daughter was being bullied by two other children on the transport.
9. The Government issued statutory guidance in 2014, ‘Home-to-school travel and transport statutory guidance’ (‘the guidance’) which recommends councils have a two stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support.
10. The guidance says council policies should set out a clear and transparent two stage process for parents who wish to challenge a decision about:
• the transport arrangements offered;
• their child’s eligibility;
• the distance measurement in relation to statutory walking distances; and
• the safety of the route.
11. The guidance says the process should involve:
• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.
12. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case.
13. The Council’s school transport policy provided for a two stage review process. At the first stage the Council’s School Places and Appeals Officer will make a decision on the case. At the second stage the request will be considered by senior officers within the education service.
14. We found in our previous investigation that the Council had investigated alternative transport options. It identified the only other option would cost £15.60 more per day. The Council therefore declined Ms X’s request for alternative transport. Ms X challenged that decision. We found the Council wrongly considered Ms X’s challenge through its complaint procedure and not through the transport appeal process. As a result, we were not satisfied the Council had properly considered Ms X’s appeal. The Council agreed to remedy the complaint by providing a further appeal for Ms X to present her case verbally at a hearing.
15. The Council held the appeal and considered Ms X’s concerns about bullying and request for alternative transport. The panel decided suitable transport was being provided as a passenger assistant was present and would identify any bullying. The panel decided the Council had met its statutory duty to provide suitable transport. The Council considered provision of a second vehicle would be outside the Council’s policy and statutory duties.
16. The panel noted that due to events outside the Council’s control [Ms X’s child] does not feel safe on transport. This was due to past events witnessed outside of school. Despite the presence of the passenger assistant Ms X’s child had not felt able to return to transport.
17. The panel exercised its discretion to offer Ms X two options:
• For her daughter to continue using the Council’s shared transport but to sit next to the passenger assistant, or
• A personal transport allowance of £5.33 per day if Ms X preferred to drive her daughter to school from September 2022 onwards.
18. The panel considered the arrangements for the passenger assistant to sit with Ms X’s daughter would provide her with the necessary reassurance she was safe.
19. The Council told me no notes were taken at the appeal hearing so it is not possible to see the panel’s discussion other than as it is set out in the decision letter.
20. The Council told Ms X the offer of a transport allowance was to acknowledge the impact on her daughter set out in her evidence to the panel.
21. The Council told me Ms X had not asked it to backdate the daily payment of £5.33.
22. In my draft decision I found it was appropriate for the Council to consider the request to backdate Ms X had now made and asked it to do so. The Council agreed and has reviewed whether backdating of the award is appropriate.
23. The Council decided not to backdate. The Council did not accept the premise of Ms X’s case. It said its decision at the stage two appeal in July 2022 to offer a direct payment was at additional cost to the Council. Had Ms X agreed to the Council’s arrangements (to use the bus and sit by the passenger assistant) the Council considers there could be no reasonable argument these arrangements were not safe or suitable. The Council has used its discretionary power to offer a direct payment as a generous acknowledgement Ms X viewed things differently, that her child was still not using the transport on offer and to accommodate Ms X’s preferred method of transport.
24. The Council says that to backdate the award, when in its view suitable transport was available throughout, but refused, would potentially set a precedent for parents to arrange their own transport in any circumstance where they were dissatisfied with the arrangements made by the Council. It said arguably this would put the Council in breach of its fiduciary duty to ratepayers. It said the decision to offer a direct payment was nothing to do with any delay in the appeal and there was no reason to assume a direct payment would have been offered had the hearing taken place earlier, given no finding was ever made the Council’s transport arrangements were not suitable.

Analysis

25. We would expect councils to consider any reasonable request to backdate an award in circumstances where there was fault in holding an appeal earlier. However this does not mean that awards must be backdated, the Council will need to consider each case on its facts.
26. The Council did agree to consider the request to backdate at draft decision stage. This was a suitable remedy to Ms X’s complaint about backdating.
27. Regarding Ms X’s complaint about the conduct of the appeal, while it is disappointing no minutes of the panel’s discussions were recorded, there is sufficient detail in the decision letter to show their thought process. The panel did consider the evidence of the impact on Ms X’s daughter and did consider if the Council had met its duty to provide ‘suitable’ transport that was reasonably stress-free. There is no evidence of fault in the way the panel reached its decision arrangements were suitable.
28. The Ombudsman cannot intervene in the judgment of an appeal panel where there has been no fault in the process. (Local Government Act 1974, section 34(3), as amended)
29. The panel decided to use discretionary powers to offer Ms X a direct payment going forward. The Council is correct to say that it is not certain the same decision would have been made at the time of the original application. Ms X’s child had not returned to the transport despite the passage of time since the alleged bullying. The Council may not have made the same offer had the appeal being processed in November 2021.
30. The Council has now correctly considered the decision to backdate and given reasons why it is not willing to do so. As there is no evidence of fault in the way the Council reached this decision, the Ombudsman has no jurisdiction to intervene.

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Final decision

31. I have completed my investigation. The Council has held an appeal as requested by the Ombudsman in a previous investigation and has considered Ms X’s request to backdate an offer of a direct payment in lieu of Council transport. There is no evidence of fault in the way the appeal was conducted or the decision not to backdate was reached.

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Investigator's decision on behalf of the Ombudsman