Summary: Miss X complains about the Council’s decision to refuse her appeal for home to school transport for her son who has special educational needs. We find that the Council was at fault. It has not explained its decision adequately and so has not demonstrated it considered the appeal properly. The Council has agreed to make a payment to Miss X to recognise the impact of its failings. It will also arrange another appeal hearing and remind appeal panel members about the importance of properly explaining their decisions. If the appeal is successful the Council will reimburse Miss X’s reasonable transport costs.

The complaint

1. Miss X complains that the Council failed to consider her appeal for home to school transport for her son properly and failed to explain its decision. This was the second appeal hearing she had and came about following a recommendation from the Ombudsman on an earlier complaint. As a result she says she has had to transport her son to and from school herself, which has put a strain on her finances.

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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. We cannot question whether an organisation's decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1) and 34(3), as amended)
3. 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 discussed the complaint with Miss X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport.
6. Miss X 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

Relevant law, policy and guidance

Home to School transport

7. Councils 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 to 16);
• children living within walking distance of the school but who cannot 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 to walk to school because the route is unsafe;
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit, for transport to one of their three nearest qualifying schools. For secondary school children they must live more than two miles but not more than six miles from that school (Education Act 1996, section 508B(1) and Schedule 35B)
8. Councils also have discretion under the Education Act 1996 to offer transport where they consider it necessary to help ensure the child attends school.

Education, Health and Care Plans and transport

9. A child with special educational needs may have an Education, Health and Care (EHC) Plan following an EHC needs assessment. The Plan sets out the child’s needs and what arrangements should be made to meet them.
    
10. A parent may appeal to a Special Educational Needs and Disabilities (SEND) Tribunal against a decision not to carry out an assessment or not to issue an EHC Plan.

11. The EHC Plan is set out in sections. Section I names the school placement. Where only one school is named in Section I that school is considered the nearest suitable school. The Council must then provide home to school transport for the child to that school where other relevant qualifying conditions are met.

Home to School transport appeals

12. Statutory guidance ‘Home to School travel and transport’ recommends a two-stage appeal process for parents who disagree with a transport decision, as follows:
• Stage 1: review by a senior officer
• Stage 2: review by an independent appeal panel to consider written and verbal representations from both the parent and officers involved in the case.
13. The Council has such a two-stage appeal process. Following a recommendation by the Ombudsman on Miss X’s previous complaint, the Council’s policy now makes it clear it will invite the parent to attend the second stage appeal panel hearing either virtually or in person.
14. The statutory guidance says appeal panels should give a “detailed written notification of the outcome” which includes:
• the nature of the decision reached;
• how the review was conducted;
• information about other departments and/or agencies that were consulted as part of the process;
• what factors were considered; and
• the rationale for the decision reached.

Good administrative practice

15. The Ombudsman has published guidance for local authorities, ‘Principles of good administrative practice’ setting out what we see as key standards of good administration. One of these is “stating the criteria for decision-making and giving reasons for decision”. The Ombudsman advises that councils should clearly explain the rationale for decisions and record them.

What happened

Background

16. Miss X has a child, C, who has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). In December 2021 he was also diagnosed with autism. While C was in his final year at primary school Miss X asked the Council for an EHC needs assessment. She later appealed against the Council’s refusal to issue an EHC Plan.
17. Miss X successfully applied for a secondary school place for C at School 1 from September 2021. She says she chose this school because it is a mainstream school with an autism resource base. To qualify for a place at the autism base a child has to have an EHC Plan. During his final year at primary school C attended several transition sessions at School 1.
18. In April 2021 Miss X applied to the Council for free school transport to School 1. On the application form she explained the effects of C’s ADHD, saying C was impulsive, had little awareness of danger, and had mobility problems. She said he could not travel by public transport, with or without an adult, because of the stress due to his sensory needs. He did not yet have the autism diagnosis at that stage.
19. The Council refused the application for transport on the grounds that C was not attending his nearest suitable school. Miss X went through the two-stage appeal process ending with an appeal panel decision in November 2021. She was not successful and made a complaint to the Ombudsman.
20. We found that the appeal panel had failed to consider Miss X’s appeal properly. In particular it had not considered all the circumstances Miss X presented and its discretionary powers to award transport even if the Council had decided C was not eligible because it did not consider he was attending his nearest suitable school. The Council agreed to our recommendation to hold another appeal hearing and invite Miss X to attend.

Second appeal hearing

21. The appeal panel hearing took place by video-conference in early August 2022. Miss X attended and presented her case. She also submitted evidence of C’s disabilities and special needs. Miss X’s arguments included the following:
• A number of professionals had agreed that C would need to attend the autism resource base at School 1 but could not have a place without an EHC Plan. The COVID-19 pandemic meant that the EHC process had been delayed both at the assessment stage and through repeated postponements of the SEND Tribunal hearing.
• The Tribunal hearing took place in February 2022. The Tribunal referred the case back to the Council to carry out a further needs assessment. It allowed Miss X to keep the right of appeal if the Council did not agree to issue an EHC Plan.
• She was confident the Council would issue an EHC Plan and she did not want to send C to another school for a short time and then have to change schools again. Because of his autism he has difficulty coping with change.
• School 1 was the only school which would allow C to have an extended transition period even before having an EHC Plan. He had attended several sessions at School 1 before starting there.
• The extra support available at School 1 for children with autism meant it was the nearest suitable school for C.
• She had had to leave her job to take C to and from school which caused her stress and financial strain.
22. The appeal was unsuccessful. The decision letter said:
• The panel had considered the information Miss X provided at the hearing, and as part of her original application and previous review and appeal.
• It had considered the Council’s home to school transport policies and the statutory guidance.
• From the evidence provided the panel was “of the opinion that there are nearer suitable schools. In addition, whilst the panel recognises that you took the advice of others into account, it was ultimately parental choice for [C] to attend [School 1]. Therefore the panel’s view is that [C] remains ineligible for travel assistance”.
• “The panel also did not think that there was sufficient evidence to suggest that a discretionary award was required for transport in this instance.”
23. Shortly after the appeal hearing the Council issued a final EHC Plan for C naming School 1. It agreed to provide home to school transport. Miss X appealed against the type of transport offered as she did not consider the arrangements were suitable for C.
24. Miss X also complained to the Ombudsman about the appeal decision. She would like the Council to reimburse the cost of transport during the period she has been taking her son to school.

Analysis – was there fault causing injustice?

25. Based on the evidence I have seen I do not consider the Council has been able to demonstrate it has met the required standards for decision-making, either as set out in the statutory guidance or to meet the Ombudsman’s expectations.
26. The appeal panel has not properly explained how it reached its decision. The decision letter does not set out the factors it took into account or the rationale for its decision. The panel gave its opinion that there were nearer suitable schools but did not say why. It gave no reasons at all for deciding not to make a discretionary award. The decision letter does not mention Miss X’s arguments concerning her reasons for choosing School 1, the delay in issuing an EHC Plan, C’s transition sessions at School 1 and his difficulty dealing with change. Nor does it explain why the panel rejected her arguments.
27. The Council has provided a copy of some notes the appeal panel took of the hearing. These indicate that Miss X was able to present her case. Miss X says she had a good opportunity to do so. However the notes do not show how the panel reached its decision. There are no formal minutes of the meeting.
28. Given the lack of evidence about how the panel came to its conclusions, I cannot be satisfied the panel considered the appeal properly. This leaves Miss X in doubt about whether the outcome might have been different if the panel had considered all her circumstances and evidence fully.

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Agreed action

29. To remedy the injustice to Miss X the Council has agreed to arrange another appeal hearing for her with different panel members. The appeal panel should keep a proper record of its decision-making. The decision letter should set out the factors taken into account and the rationale for the decision.
30. If the appeal panel decides to uphold Miss X’s appeal, the Council should reimburse her reasonable transport costs from the date it decides she should have been awarded transport.
31. The Council will make the following payments to Miss X:
• £250 to recognise her time and trouble in pursuing the complaint; and
• £500 to recognise the avoidable anxiety, uncertainty and distress she experienced.
32. The Council has agreed to remind appeal panel members of the importance of following the statutory guidance on providing detailed reasoning for their decisions.
33. The Council should take the above actions within one month of the decision on this complaint, and provide us with evidence it has done so.

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Final decision

34. I have found fault by the Council in how it made and explained its decision on Miss X’s school transport appeal. I am satisfied with the action it has agreed to take to remedy the injustice caused and so I have completed my investigation.
35. 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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Investigator's decision on behalf of the Ombudsman