Summary: Mr X complains about the Council’s refusal to provide free home to school transport to his daughter who has a learning disability. The Council has failed to assess the child’s ability to walk the required distance (even if accompanied). It applied the wrong legal test and did not follow its own policy. This is fault and casts doubt on the decision reached. The family may have missed out on free transport and has been put to unnecessary time and trouble bringing the complaint. The Council will review its decision, make service improvements, offer a financial remedy if it decides to overturn its previous decision and make a time and trouble payment to Mr X.

The complaint

1. Mr X complains about the Council’s refusal to provide free home to school transport for his daughter, who has special educational needs (SEN), when she transferred to secondary school. Mr X complains the Council refused transport on the grounds of statutory walking distance, although it has granted it for other children who live within the distance.
2. Mr X says the Council’s decision has caused distress and impacted his ability to work and earn an income. Mr X says as he cannot cancel work to transport Y by car, as the Council expects, his daughter misses out on going to school some days.
3. Mr X also complains he asked for information about how to attend the virtual appeal hearing but this information was not provided.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question whether a council’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, section 34(3), as amended)
6. We may investigate matters coming to our attention during an investigation if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
7. 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

8. I have considered information provided by Mr X and the Council including:
• Mr X’s application for transport support
• Ms X's appeal at stage one and stage two and supporting evidence
• The Council's decision letters
• The Council's response to enquiries we raised.
9. I have spoken to Mr X by telephone.
10. I have considered relevant law and guidance including:
• Education Act 1996
• Home to School Travel and Transport Statutory Guidance
• The Ombudsman's guidance:
1. 'All aboard? Navigating School Transport Issues' (March 2017)
2. Guidance on Remedies.
11. 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.
12. Mr 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

The law and relevant guidance

13. Section 508B of the Education Act 1996 ('The Act') says councils must provide free school transport to eligible children. The term 'eligible' means children of compulsory school age who meet certain criteria as set out in Schedule 35B of the Act.
14. ‘Eligible’ children fall into four categories:
• Children with special educational needs (SEN) or a mobility difficulty who cannot reasonably be expected to walk to school even though the school is within the statutory walking distance.
• Children whose route to school is unsafe.
• Children who live outside the statutory walking distance to school (currently 2 miles of under 8 years and 3 miles if between 8-16 years).
• Children from some low income families.
15. Councils also have discretion under s.508C of the Act to make provision for non-eligible children where they consider it 'necessary' to facilitate the child's attendance at school. A common situation where this may arise is where a child has a disabled parent.
16. The Government has issued statutory guidance 'Home to School travel and transport' for local authorities ('the Guidance'). Councils must have regard to the Guidance when carrying out their duties. This means Councils can depart from the Guidance, but if they do, they must have a good reason for doing so.
17. The Guidance says eligibility under SEN / mobility grounds should 'be assessed on an individual basis to identify their particular travel requirements' and that the statutory walking distance is not relevant for children applying on the grounds of SEN or mobility needs.
18. If the child can physically walk the distance but is unsafe to do so unaccompanied, the Council must consider:
• whether the child could reasonably be expected to walk if accompanied and, if so,
• whether the child's parent can reasonably be expected to accompany the child.
19. When considering whether a child's parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.
20. Councils should have in place both complaints and appeals procedures for parents to follow should they have cause for complaint about the service or wish to appeal about the eligibility of their child for travel support. The Government recommends a two-stage review/appeals process for Councils to follow:
• Stage one of the recommended appeal process is a review by a senior officer who provides a 'detailed written decision' setting out:
1. The nature of the decision reached
2. How the review was conducted
3. Information about other agencies consulted as part of the review
4. The factors considered and the rationale reached.
• Stage two of the recommended appeal process is a review by an independent appeal panel which considers written and verbal representations from both the parent and the officers involved and again provides a detailed written decision. Panel members must be independent of the original decision-making process but do not have to be independent of the Council.

Council’s policy on travel support to access education for children with SEN

21. The Council’s policy for children with SEN says travel support may be considered using supporting written evidence from a range of sources for example, education or health professionals, parents or other relevant professionals. The policy provides a non-exhaustive list of conditions which may qualify for support and includes severe behavioural emotional and / or social difficulties in comparison to other young people of their age.
22. The policy also sets out examples of other exceptional circumstances when transport support may be offered even where a child is not an ‘eligible’ child, for example parents with medical needs.
23. The policy says when an application is received an initial evaluation will determine whether transport support is likely to be approved. If an application does not contain enough information to complete the initial evaluation, it will be returned to the parent/young person. The next stage is for a full assessment of eligibility. ‘This stage will include the gathering and evaluation of written evidence and parental circumstances. It will usually include consideration with the school/college concerned, caseworkers and any other relevant specialists and the parent/carer/young person’. At this stage the application with either be declined or forwarded for a risk assessment, including a home visit, ‘to determine the needs of the child/young person including their physical, medical, health and behavioural information’.

Chronology of events

24. In Spring 2022 Mr X applied for school transport for his daughter, whom I shall refer to as Y, for September 2022 when she moved to secondary school. At primary school a relative had transported Y to school by car, but the relative was unable to continue this arrangement for secondary school.
25. The secondary school Y was due to attend is either 2.1 miles (Council’s calculation) or 2.5 miles (Mr X’s calculation) from Y’s home. For the purposes of this investigation this discrepancy is not relevant as both calculated distances are below statutory walking distance.
26. The application form is a simple form with questions and yes/no boxes. Mr X circled ‘yes’ to the question ‘does your child have a learning disability such that they are unable to walk to school?’ The question about whether parent(s) are disabled such that they were unable to accompany Y to school is circled ‘no’.
27. The Council refused the application on the basis Y lived within statutory walking distance and parents were available to support Y to travel to school and the Council ‘was not aware of any extenuating circumstances that would prevent you from doing so’.
28. The Council has provided notes of a ‘phone review’ in early May 2022, presumably in response to a request from Mr X for review, although this document is not available to me. The officer noted:
• Y had sensory overload in busy environments.
• Mrs X was a carer.
• Mr X and a relative currently shared transporting Y to primary school.
• Mr X ran his own business and worked from 8am to 9pm and needed use of his car for work.
• Mrs X did not drive and had a medical condition.

This ‘review’ does not appear to have led to any change in the Council’s position.

29. The next document available to me is Mr X’s formal appeal request in mid-May providing further representations that:
• Y could not walk the distance to her new school, she could not stay safe and was being referred to Child and Adolescent Mental Health Services (CAMHS) due to her behaviour.
• Y had ‘meltdowns’ about even the mention of public transport due to previous bad experiences.
• Y was able to use a school minibus in the past and associates this with going to school.
• Mrs X did not have access to a car, does not drive and had a medical condition which prevented her walking the distance to school.
• Mr X works over fifty hours per week and is not able to assist with transport.
• Without school transport Y would be unable to attend school.
30. The Council’s stage one appeal response:
• Upheld the original decision a transport award outside the usual policy was not justified.
• Found Mrs X was available to accompany Y.
• Found Mr X had a car and as he was self-employed could fit his work around Y’s school times.
• Found there was a direct bus which required minimal walking.
31. Mrs X appealed at stage two stating:
• The Council had found Mr X could fit his hours around school, but this was ‘ridiculous’ given the nature of his work required him to work around client’s availability and appointments set externally which would lead to Y missing a lot of school.
• Y refused to use public transport and had an irrational fear of this.
• Mrs X did not drive and there was no-one else who could take them.
• They could not walk due to busy roads and Y having no sense of danger and being startled by sudden noises and running off.
32. Mrs X provided a letter of support from the primary school.
33. The Council has provided me with a copy of a letter showing that Mr X was invited to the stage two appeal which was arranged to take place virtually. The letter stated ‘You must contact the Home to School Transport Team to inform them you will be attending the appeal hearing so that access into the appeal hearing can be arranged’. Mr X says he did try and contact the Team, but no-one got back to him, so he was unable to attend. The Council told me it could investigate this further if Mr X could advise which member of staff he contacted. Mr X has provided further information which I have provided to the Council.
34. The stage two review panel was held in mid-August. The decision letter sets out the matters the panel considered as follows:
• As Y lived only 2.1 miles from school she was not ‘eligible’. She needed to live three miles or more to be eligible.
• Mr X was invited to attend the hearing but did not do so.
• Mr X had said it was too far for Y to walk due to her behaviour and that Mrs X did not drive and had a medical condition.
• Mr X said he could not fit his work around school.
• Mr X said Y could not tolerate a taxi or public transport.
• Mrs X could not support Y due to her behaviour.
35. The panel found:
• There was not enough evidence to support transport was necessary.
• Y was not eligible as the distance was below the statutory walking distance of three miles.
• The letter from the primary school did not explain why Y’s needs could not be met by parent support.
• The family had managed transport at primary school.
• There was no evidence for Mrs X’s medical conditions.
• There was no evidence for Y being unable to use public transport or taxis.
• There was no medical evidence provided to demonstrate how Y may find walking or using public transport difficult due to her conditions. ‘The panel concluded that this was probably very likely due to the conditions described. However, even were they to accept that Mum had medical conditions…the panel felt that as [Mr X] was a self employed…, and a driver, you should have flexibility over the hours you work and could reasonably be expected to time your work around Y’s school transport needs.’ While the panel accepted Mr X had work appointments booked, he would have control over when these were organised.
• The panel did not consider a transport solution provided by the Council was ‘necessary’.
36. Mr X made further representations after the stage two decision:
• The panel found the distance had to be over three miles, but a friend’s child had been granted transport who lived a shorter distance.
• When he contacted the school transport team to attend the hearing he was passed around different departments and was not provided with details how to attend.
• Mr X ran a business which required him sometimes to work away from home.
• A relative who had helped at primary school was now too unwell to help.
• Mrs X could not walk two return journeys totalling 7.2 miles per day due to her medical condition, they did not send in medical evidence as they did not expect the panel to ‘act as if we were making up an illness to try and get support’.
• There was no evidence they could provide to support Y’s aversion to public transport, this was just the way she was.
• Mr X’s work was restricted by the needs of clients and timing of appointments set by an external body. If he were to take on the school transport this would significantly reduce the number of clients he could work with per day and have a serious effect on his business.
• Mr X provided proof of Mrs X’s medication.
37. The Council did not provide a further response.

Analysis

38. S.508B Education Act 1996 says councils must make transport arrangements for eligible children to attend school. An ‘eligible’ child is defined in Schedule 35B and includes children with SEN, a disability or mobility problems who cannot reasonably be expected to walk to school. It is for the Council to determine if a child is eligible, therefore the onus is on the Council to determine whether SEN, disability or mobility problems mean it is not reasonable to expect a child to walk to a school within statutory walking distance. The Guidance says for applications on SEN/disability/mobility grounds: ‘Eligibility for such children is to be assessed on an individual basis to identify their particular transport requirements’.
39. The section of the Guidance on eligible children does not set out how councils should assess eligibility, but the Government’s expectations can be inferred from the section on appeals. This says appeal decisions should set out the rationale for the decision and set out information about what other departments and / or agencies were consulted as part of the Council’s process. The expectation is therefore that Councils should consult other agencies and gather evidence where necessary to complete the assessment.
40. There is nothing in the law or guidance which prevents councils asking parents to provide information or evidence that may be in parents possession, but there is no requirement for parents to seek medical reports or advice, which are often not within a parent’s gift to obtain.
41. The Council’s policy reflects that an individual assessment is required yet it is apparent no assessment of how Y’s learning disability and behaviour difficulties impacted on her ability to walk was carried out. There was no gathering of evidence and no home visit, this was fault. The Council failed to follow the law and its own policy.
42. The application was turned down (at first instance and at stage two) on the basis Y could not be an eligible child because the distance was below statutory walking distance of three miles. This is fault because statutory walking distance does not apply to applications made on SEN/mobility grounds. It is concerning the transport officer and the appeal panel officers did not know this. This suggests similar errors may have been made on other cases.
43. It is unclear why the appeal was rejected at stage one, the reasoning seems to be that Mr X could accompany Y or Y could travel by bus, however again there is no assessment or consideration of whether Y could walk the distance if accompanied by an adult given her learning disability and behaviour difficulties.
44. The appeal panel has commented it did not have enough evidence to make a finding about whether Y could walk. The panel should therefore have adjourned the appeal for this evidence to be gathered. Instead, it indicated it accepted parent’s evidence that Y could not walk the distance required, but viewed this as irrelevant as Mr X could drive Y. This was fault, the legal test for eligibility set out in Schedule 35B of the Act is a walking test not whether a child can travel by car. Having wrongly decided Y could not be an eligible child under s.508B because of distance, the panel considered the application only under its discretionary powers of s.508C as to whether Mrs X’s medical condition and Mr X’s work were exceptional circumstances that meant transport was ‘necessary’ for Y to attend school.
45. The faults I have identified mean Y’s application has not been considered in line with the law and the Council’s policy, this casts doubt on the decision reached. The decision needs to be reviewed. This does not mean the Council will necessarily award transport, which will depend on what an individual assessment of Y’s walking ability reveals.
46. Mr X was not able to attend the previous hearing, however as I have recommended a new appeal hearing, this will be a suitable remedy.

Injustice

47. Mr X tells me that Y’s behaviour has become more challenging since she started high school in September 2022. His work has meant there have been days when he has been unable to take Y to school and she has had to miss school. Mr X says this is not helping Y settle into her new placement.
48. Mr X has also incurred cost and suffered inconvenience because of the decision to refuse transport support and time and trouble bringing the complaint.

Have other families been similarly affected?

49. In my draft decision I made recommendations the Council review other applications received on SEN/mobility grounds in the past twelve months to check whether similar errors occurred. The Council has now done so and told me it has not found other cases impacted by the errors found in this case.

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Agreed action

Within two weeks of my final decision

50. The Council will seek evidence about Y’s ability to walk to school, accompanied or unaccompanied from parents and relevant professionals (for example CAMHS, her new school etc).

Within four weeks of my final decision

51. The Council will review the application and make a fresh decision, with reasons explaining:
• How the Council has assessed Y’s ability to walk, accompanied or unaccompanied, referring to evidence gathered or face-to-face assessments undertaken.
• How the Council has decided it is reasonable to expect a parent to walk with Y to and from school.
52. If the Council again decides not to award transport, it will provide Mr X with the same rights of appeal to stage one and stage two as with his original application.
53. If the Council overturns its previous decision, it will offer Mr X a financial remedy for the period Y has been without transport. If Mr X and the Council cannot agree a figure, then Mr X may bring this matter back to the Ombudsman to consider.
54. The Council will pay Mr X £250 for his time and trouble bringing the complaint and the injustice that his application was not considered correctly in the first place.

Within twelve weeks of my final decision

55. The Council will ensure all relevant staff and panel members have refresher training on how to assess applications made on the grounds of SEN and mobility needs.

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Final decision

56. I have completed my investigation. The Council failed to assess an application for free home to school transport on SEN/mobility grounds correctly. It applied the wrong legal test and did not follow its own policy. This is fault and casts doubt on

57. the decision reached. The agreed actions set out above are a satisfactory remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman