Summary: There was administrative fault in the way the Council communicated with Ms X about the outcome of her transport appeal. This meant there was a period when Ms X did not access a free taxi for her child to travel to school which caused inconvenience and distress. The Council will apologise, update its application process and make a payment of £250 to acknowledge the injustice caused.

The complaint

1. Ms X complained the Council:
• did not respond to her appeal for home to school transport
• did not follow the law in its original transport decision
• arranged for a taxi to turn up at her home without informing her of this decision.
2. Ms X says she had to make her own arrangements to transport her child, which involved pushing her child in their wheelchair up a steep hill when she has health problems.
3. Ms X wants:
• an apology from the Council
• a financial remedy to acknowledge the missed travel assistance, stress, inconvenience and time and trouble bringing the complaint.

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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. 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

6. I have considered information provided by Ms X and the Council including:
• Transport application and appeal documents
• The Council’s response to my enquiries.
7. I have considered relevant law and statutory guidance:
• Education Act 1996
• Department of Education home to school travel and transport guidance (‘The Guidance’)
• Our Focus Report: All on board? Navigating school transport issues, March 2017
• The Ombudsman’s Guidance on Remedies.
8. 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.
9. Ms 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 and guidance

10. Local authorities must make suitable home to school travel arrangements as they consider necessary for 'eligible children' of compulsory school age. The travel arrangements must be made and provided free of charge. (Education Act 1996, s.508B)
11. '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 (SEN), 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)
12. The transport duty does not arise if another person, who is not the local authority, has provided free transport to the eligible child unless those arrangements do not provide suitable home to school travel arrangements for the purposes of facilitating attendance at school. (Education Act 1996, 508B(2))
13. In deciding whether a child of statutory school age cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’, a council will need to 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. When considering whether a child’s parent can reasonably be expected to accompany the child, 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 expectation is 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 (Department of Education 2014 home to school travel and transport guidance). 
14. Section 508C of Education Act 1996 provides councils with discretionary powers to go beyond their statutory duties and provide transport to children who are not entitled to free transport.
15. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
16. The Guidance recommends councils adopt the following appeals process:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us. (Annex 2 of the guidance)

17. If an appellant considers there has been a failure to comply with procedural rules or if there are any other irregularities in the way an appeal was handled, they may have a right to refer the matter to the Local Government Ombudsman. (paragraph 54 of the guidance)

Key events

18. Ms X applied for free home to school transport in June 2022 to start from September 2022, when her child moved to secondary school. Ms X applied on the grounds of SEN/disability/mobility as her child is a wheelchair user.
19. The Council has accepted there were problems with the online application form which prevented applicants uploading and submitting additional evidence. It says it is revising the process to resolve this.
20. The Council says Ms X’s application was discussed at the SEN assistance panel but refused because although Ms X’s child was an ‘eligible’ child (s.508B) due to their disability, Transport for London (TfL) provides free travel which satisfies the statutory duty. The Council has explained in its response to my enquiries it relied on the exemption in s.508B(2) that where an organisation other than the Council has made provision for free travel that is suitable, it is not required to also provide transport.
21. The Council sent a decision letter to Ms X which the Council accepts contained errors as it stated transport was refused on the grounds of distance or because the child did not have an Education, Health and Care Plan. The Council told me this was an error, Ms X’s child was always ‘eligible’ under s.508B, the question was what transport assistance was required. The Council says it considered the offer by TfL of free London wide wheelchair accessible buses was appropriate and sufficient. The Council says it has addressed the error in the letter with the team concerned.
22. Ms X appealed to stage one with the help of an advocate.
23. The stage one appeal was considered before the school summer holidays and transport was agreed. The appeal outcome was that transport was provided due to ‘exceptional circumstances’. This implied transport was awarded not under s.508B (because Ms X’s child was an eligible child) but under the discretionary powers of s.508C. The Council has confirmed to me this was not what was meant. Ms X’s child is eligible under s.508B and the phrase exceptional was used to explain why it intended to provide a taxi rather than expect the child to use a TfL bus.
24. The Council told me the appeal decision letter did not get to the parent for which we apologise. The Council believes this was most likely an oversight at a very busy time of year for transport applications.
25. The Council says it put a taxi in place for the start of term in September. It said efforts were made to inform Ms X of this, but officers could not get a response. The Council later ascertained Ms X was out of the country. Transport was therefore delayed until mid-September.
26. Attendance records provided to me by the Council show Ms X’s child missed the first two days of school only.
27. Ms X says she did not find out her appeal had been successful, and a taxi provided, until late September when a taxi appeared at her house. Until then Ms X was transporting her child by pushing them in their wheelchair.
28. In response to my enquiries the Council has acknowledged fault in the wording of the original decision, failing to send Ms X the appeal letter, and for difficulties with uploading evidence to its system. The Council says it would like to offer Ms X and her child £250 for the distress caused. The Council told me it would have appreciated the opportunity to have considered Ms X’s case via its complaint procedure and offered her a remedy and apology direct.

Analysis

29. The Council has acknowledged fault in the original process in that families could not upload evidence. This may have prevented Ms X from receiving the right decision first time without needing to appeal.
30. The appeal letter contained inaccurate reasons for refusing transport. This was fault.
31. The Council failed to notify Ms X of the outcome of the appeal, this was fault. If Ms X had known her appeal had been successful, she would have been able to follow up about the transport arrangements before the start of term. While transport was available, Ms X was not at home when it arrived as she was transporting her child to school herself. It therefore took Ms X three weeks to find out transport was available.
32. The Council told me it has worked to resolve the errors highlighted by Ms X’s complaint, but the new application process is not yet live on its website.
33. While the Council indicated Ms X should have used its complaint process, we do not expect families to do so when they have already used the transport appeal process. Ms X was unaware her appeal had been successful, she assumed her appeal had been ignored. It is therefore understandable that she approached the Ombudsman without contacting the Council further.
34. The Council has offered to apologise to Ms X and her child and make a financial payment of £250 to acknowledge the distress caused. This is in line with the Ombudsman’s Guidance on Remedies.

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Agreed action

35. Within four weeks of my final decision the Council will send an apology letter to Ms X and pay her £250.
36. The Council’s will ensure its new application process, allowing families to upload additional evidence, will go live on its website on 23 June, when the new admissions window opens.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have completed my investigation. There was administrative fault in the way the Council communicated with Ms X about the outcome of her original application and her transport appeal. This meant there was a period when Ms X did not access a free taxi for her child which caused inconvenience and distress. The actions already taken by the Council, and the further actions agreed, are a satisfactory remedy to the complaint.

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Investigator's decision on behalf of the Ombudsman