Summary: Mrs X complains the Council did not properly consider her school transport appeals for her son and daughter, who are disabled. We consider there is fault by the Council. It has agreed a remedy.

The complaint

1. The complainant whom I shall call Mrs X, complains the Council failed to properly consider her appeal against its refusal to provide school travel assistance for her daughter B and regarding her appeal for over 16 travel assistance for her son A. She says the Council did not take account of her son and daughter’s disabilities and difficulties in travelling and accessing education.

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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 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).
3. 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 discussed the complaint with Mrs X and considered the complaint and the information she provided. I have made enquiries of the Council and considered the comments and documents the Council provided. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The law and Council policies related to transport provision and special needs

6. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider necessary to facilitate attendance at education or training and the financial help available for learners of sixth form age (age 16 to 19). Arrangements may include a concessionary fares scheme, a bus pass, a mileage allowance or provision of actual transport. Parents may be asked to contribute to these costs. The Council’s policy must include arrangements for learners with special educational needs and disabilities.
7. The Council has a transport policy for young people aged 16-18 in further education, continuing learners aged 19 and those young people aged 19 – 25 (inclusive) with learning difficulties and/or disabilities.
8. The Council’s policy states that all young people who live in a London Borough up to the age of 18 if they are in full time education, are entitled to free transport on buses within London. The Council considered that such an arrangement is sufficient to meet the transport needs of most young people of this age range to enable them a reasonable choice of course.
9. The Council’s policy also states that with regard to young people with a special educational need or a disability, it will consider a full range of travel options which “reflect the core principle of promoting independence and will include, where available, the use of public transport, provision of a freedom pass, independent travel training, travel buddying, motability scheme, the London taxi card scheme and capital call, which is a complementary service to Taxicard. It is recognised that in exceptional circumstances additional travel assistance may be required.”
10. Referring to independent travel training the Council’s policy says:

The Council’s travel training provider works with each student for as long as is necessary for them to be able to undertake their journey independently to/from home to school and includes:

• Learning a route
• Road safety
• Asking for help
• Problem solving
• Stranger awareness

In determining whether you/young person may be suitable for ITT, we look at their needs according to their EHCP, a travel planner (who has travel training accreditation) will meet with the families/young people and carries out assessments of suitability and develops a travel plan.

11. The Council has a two stage review and appeals process in line with Department for Education guidance.
• First stage - review by a senior officer within 20 working days of the request.
• Second stage – appeal to an independent appeal panel of three senior officers within 40 working days of the request.

What happened - A

12. Mrs X’s son A, who has sickle cell disease, received transport assistance from the Council up to year 11. The Council provided individual taxi transport.
13. In April 2022 Mrs X applied to the Council for transport assistance from September 2022 for A as he entered sixth form at the same school. She said there were exceptional circumstances because A could not use public transport and was prone to infection. He received disability living allowance for mobility. She said her two other children attended a different school and both were disabled and had medical conditions. Mrs X said she was also disabled herself.
14. In July 2022 the Council carried out a travel assessment for A. It noted;
• travelling to his school by car took 35 minutes. By bus it took 37 minutes, including a 7 minute walk to the bus stop and a 7 minute walk to the school.
• A’s parents’ concerns that he needed to be prompted continually to do things at the right time.
• A’s proposed Education, Health and Care Plan (EHCP) stated that he had a sickle cell crisis approximately once a month and took penicillin every day to reduce the risk of infection.
• The EHCP noted that A was a candidate for independent travel training.
• The Council considered health evidence including advice from the health service regarding sickle cell crisis. It considered that most people diagnosed had very few mobility problems, and if in sickle cell crisis they would not be well enough for school.
15. On 31 August 2022 the Council advised Mrs X of its decision. It said that all young people up to the age of 18 in full time education were entitled to free transport on buses within London. It said the Council considered these arrangements were sufficient for most young people. Therefore, it considered that A was not eligible for additional travel assistance. The Council did not address Mrs X’s points regarding A’s mobility, and inability to use public transport. The Council stated how Mrs X could request a stage one review of its decision.
16. On 1 September 2022 Mrs X emailed the Council regarding its decision and its delay in coming to a decision. The Council replied and agreed she did not need to go through the stage one review given its delay in considering her application. The Council also agreed to pay an interim personal transport budget from September 2022 pending the outcome of the appeal.
17. Mrs X’s appeal disputed the distance and the details of the journey the Council had described. She gave details of the impact of the disease on A and his mobility difficulties. She said the EHCP showed he had problems communicating his needs. She reiterated details of the family’s circumstances. She provided further documents to support her appeal including letters from A’s health specialists.
18. The Council held an appeal hearing on 7 October 2022. Mrs X was able to attend virtually. The Council’s case was that A could travel independently, having taken account of his EHCP, and the health evidence.
19. The Council notified Mrs X of its decision on 7 October 2022. It upheld the decision that A was not eligible for additional travel assistance. It gave details of the information and evidence it had considered, and the points Mrs X raised and discussed in the hearing. The Council said that its independent travel trainers could contact Mrs X to arrange support and advice to help A become an independent traveller.
20. On 14 October Mrs X appealed further and then complained when advised that no further appeal was possible. She said the Council intentionally delayed its decision so that there was not enough time to appeal and put transport in place.
21. She also complained later that A had received travel assistance previously and the Council should continue its support. She said the Council’s representative had stated A had been the only child at the school to get travel assistance. Mrs X said this was wrong and not relevant. She believed the refusal was due to racial discrimination. She said the Council’s representative was negative about her son’s wish to be a doctor. She complained the Council’s decision did not take account of A not being able to walk long distances, and anything could happen to him if he had a sickle cell crisis by the roadside. She felt this was inhuman and undignified and conflicted with UN rights of the child and human rights legislation. She said the Council was wrong to say about the journey to school which in her view took 2 hours and required three bus changes.
22. The Council replied to Mrs X’s complaint on 1 November. It considered the decision was correct. It said that there was no further right of appeal, but she could reapply if her circumstances changed. The Council said it had previously accepted it had delayed assessing her application. It had as a goodwill gesture provided a personal transport budget so that A could travel to school until the appeal hearing were heard. The Council had extended this to 21 October, but it would not extend it further.
23. The Council replied regarding Mrs X’s other points:
• She had raised her view of the journey details to travel to school, at the hearing. However, a panel member had checked the journey and found the Council’s details were correct.
• She wanted to submit information about the UN rights of the child. The Council said if Mrs X had evidence which was not available at the time of the assessment or appeal, she could reapply for travel assistance.
• She said the representative said only A received travel assistance. However, the Council clarified A was the only person receiving assistance in the previous year, but a further application had been deemed eligible the current year.
• She said the travel assistance team discriminated against the black race. However, the Council took exception to her suggestion and stated it provided assistance to over 900 children of varying race.
• She said the representative responded negatively about A’s wish to be a doctor. However, the Council felt the reference was positive as A’s ambitions would require independence. The Council said travelling to school on his own would be a first step to gaining confidence and skills to meet his ambitions.
• She said the Council should continue the travel assistance that it had given A. However, the Council said that needs change as young people become older. And the law changes to a sixth form duty at year 11. The Council had correctly assessed A under its Post 16 Transport Policy.
24. Mrs X submitted a new application in late November 2022.
25. On 13 December 2022 the Council advised Mrs X of its decision to refuse additional travel assistance. It explained as it had in its letter of 31 August 2022, that it considered free transport on buses was sufficient for A to access education.
26. Mrs X has recently made a further application and an appeal. An appeal panel is due to consider her appeal.

Analysis

27. There was significant delay by the Council between April 2022 and 31 August 2022 in notifying Mrs X of its decision. While a travel assessment was apparently carried out in early July, it took 8 weeks for the Council to advise of its decision. This delay was fault. However, I note the Council funded transport for the period September 2022 until November 2022 pending the outcome of Mrs X’s appeal. The Council has also apologised for its delay. I consider this was a suitable remedy.
28. The Council agreed with Mrs X that it would not require her to go through the stage one review process. While this is not in line with its process, it was agreed in order to move the appeal forward given the Council’s earlier delay. I do not consider this is fault. The Council has also considered the new applications and put these through its review and appeal procedure as required by its process.
29. I consider that the Council’s original decision letter of 31 August did not provide sufficient information regarding the Council’s consideration of the exceptional reasons Mrs X had raised. This is fault. I have recommended a remedy.
30. I consider the panel’s decision letter of 12 October 2022 gave the grounds of appeal that were discussed but did not address the panel’s consideration or its reasoning for its decision. This was necessary to help the appellant understand the decision, particularly in view of the review stage being skipped in this case. I have recommended a remedy.
31. I have not found evidence of fault by the Council in its decision making. Therefore, as a explain in paragraph 3, I cannot question the merits of the decision.

What happened – B

32. In April 2022 Mrs X applied for travel assistance for her daughter B who was starting year 7 in September 2022. She said her daughter had asthma and food allergies and could not travel by public transport. She said B received disability living allowance for mobility and care at the lower rate.
33. On 20 July 2022 the Council advised Mrs X that B was not eligible for school travel assistance according to its policy for provision of travel assistance for children aged 5-16. It considered that B’s travel needs could be met by free bus travel. It said that the Department of Education guidance stated Councils had no duty to provide additional assistance if free transport was offered by another body or person.
34. On 27 July Mrs X asked the Council to review its decision. She said due to her medical needs B could not walk for long distances, or be exposed to weather conditions, or exposed to potential allergic reactions on public transport. She provided further evidence in support.
35. On 1 September 2022 the Council rejected Mrs X’s review request. Mrs X appealed to the Council’s appeal panel at the second stage.
36. On 7 October 2022 the Council held an appeal panel hearing. Mrs X was able to attend virtually. The Council’s case was that public transport was suitable for B, and the issues raised could be mitigated by training and other resources. having taken account of the evidence. Mrs X raised her grounds including that B had recently become ill at school and that she could not self administer her EpiPen.
37. On 12 October the Council sent Mrs X the panel’s decision. It did not uphold the appeal on the basis that the Council had complied with the travel assistance policy and B’s needs would be met by the free bus pass. The Council referred to the points discussed at the hearing including her asthma and the use of the EpiPen for allergies.
38. On 14 October Mrs X appealed. She then complained the Council intentionally delayed its decision so that there was not enough time to appeal and put transport in place. She also complained later that the Council’s decision meant that B should rely on strangers for medical assistance.
39. The Council advised Mrs X there was no further right of appeal, but she could make a new application if she her circumstances changed. In its response to her complaint, the Council advised that it maintained its decision regarding B. But it said Mrs X could reapply if there was information she had not provided.
40. Mrs X submitted a new application in late November 2022. On 13 December 2022 the Council advised Mrs X that it decided B was not eligible for travel assistance.

Analysis

41. I have not found fault by the Council in its consideration of the applications and appeals that Mrs X has made regarding travel assistance for B. The Council has considered relevant matters. As I explain in paragraph 3, I cannot question the outcome if there is no evidence of fault in the decision making.
42. However, I consider the Council should have explained its consideration of exceptional circumstances in its letter of 20 July 2022. The panel’s letter of 12 October 2022 did not explain the reasoning behind the panel’s decision and how it came to a decision. This was fault. I have recommended a remedy.

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Agreed action

43. I recommended that within one month of my decision the Council should remind the travel appeal panel and clerk to the panel that their decision letters should set out brief details of the grounds raised and regarding the reasoning for its decision.
44. The Council should remind officers that early decision letters regarding applications for travel assistance should refer to exceptional reasons raised and should briefly address these.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. The Council has agreed to the remedies I proposed for the faults I identified. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman