Summary: Mrs B complained about the Council’s decision to refuse to supply an escort to accompany her child, F, to and from school in a taxi. The Council was at fault for failing to treat Mrs B’s case as an appeal. This caused Mrs B uncertainty about what an appeal might have decided. To remedy Mrs B’s injustice, the Council will apologise. It will also carry out staff training. The Council has since agreed to arrange an escort, so a new appeal is not necessary. Our investigation also identified the Council was at fault for flaws in its school transport appeals policy and how it shared information about appeals on its website. The Council will amend its policy and website.

The complaint

1. Mrs B complained about the Council’s decision to refuse to supply an escort to accompany her child, F, to and from school in a taxi. She said this caused her distress and put F at risk.

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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 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)
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)
5. 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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How I considered this complaint

6. I have considered:
• all the information Mrs B provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Mrs B and the organisation 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

School transport decisions

8. Local authorities 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.
9. Councils issue letters setting out their decision on whether they have awarded a child free school transport and what that transport will look like (e.g. a shared bus, or an escorted taxi). The Ombudsman considers it good practice for decision letters to set out the applicants right to appeal the council’s decision.
10. The Ombudsman previously found fault with the Council’s decision letters for not including reference to the appeals process. We recommended the Council amend its decision letter template, which it did in late September 2022.

Appeals

11. Statutory guidance called the “Home to School transport guidance July 2014” says councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support or about the travel arrangements offered.
12. It recommends councils adopt a two-stage appeals process. Stage one is a review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, the officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out:
1. what the decision is;
2. how the officer carried out the review;
3. information about other departments or agencies the officer consulted; and
4. what they took into account:
1. the rationale for the decision reached; and
2. how to escalate their case to stage 2
13. Stage two is an independent appeal panel. Within 40 working days of receipt of the parent’s request for a stage two response, an independent appeal panel hears written and verbal representations. The panel then issues a detailed decision setting out:
1. what the decision is;
2. how it conducted the review;
3. information about other departments and agencies the panel consulted;
4. what factors the panel considered;
5. the rationale for the decision reached; and
6. information about appealing to the Ombudsman.
14. In late June 2023, the government issued new statutory guidance on school transport. It includes more information on how the government would like councils to hold appeals, but is broadly similar to the 2014 guidance.

The Council’s appeal process

15. The Council’s appeal process sets out its school transport policy, “School Transport Policy 2022”. It says appeals are heard at stage one by a senior officer. The officer will send their decision and set out:
1. what the decision is; and
2. how the officer carried out the review.
16. The Council’s policy says appeals about transport arrangements are heard by an independent senior officer based outside of the School Transport Team, who has comprehensive knowledge of the Council’s transport policy and relevant legislation. Appeals about eligibility for school transport are heard by an independent panel.

Website

17. The 2014 statutory guidance recommends councils publish their appeal processes on their websites. The Council has a webpage titled “Eligibility and how to apply”. On that page, it says “Help with the school journey can only be offered if you meet the eligibility criteria for Hampshire County Council funded transport assistance. The full eligibility criteria can be found in the relevant policy document”. That document is the “School Transport Policy (2022)”, which users must download. Information on the Council’s appeal process can be found on page thirteen of the policy. There is no information on the webpage about appeals.

What happened

18. Mrs B’s child, F, is eligible for free school transport due to their needs stemming from their disabilities. In September 2022, the Council decided F would travel to and from school in a taxi shared with other children. It sent Mrs B a letter which set out its decision but did not contain information about how Mrs B could appeal that decision.
19. Mrs B complained to the Council about the travel arrangements. She said she felt there needed to be an escort in the taxi. She was also unhappy another child had been going to school in the taxi.
20. The Council responded to Mrs B’s concerns using all three stages of its complaints procedure. It said an extra child travelled in the taxi on two occasions. This was a decision made by the taxi operator, who did not tell the Council. The Council confirmed it had contacted the taxi company and said it was not allowed to add an extra child.
21. The Council said it did not agree an escort was needed. It later considered evidence from the school F attends but did not change its decision.
22. Mrs B remained dissatisfied and complained to the Ombudsman in March 2023.
23. As part of my investigation, I asked the Council why it did not consider Mrs B’s concerns using the appeal process. The Council said Mrs B sent her concerns to the complaints team and said she wanted to complain.
24. The Council explained it spoke to Mrs B on the phone in November 2022 about its stage two complaint response and suggested she could appeal. It said Mrs B was clear she wanted to complain to the Ombudsman and so needed to finish the local complaints process.
25. In June 2023, the Council agreed to arrange an escort.

Response to my enquiries on the Council’s appeal process

26. I asked the Council to explain why its appeal process (as set out in its policy on school transport) differs from the statutory guidance. It told me:
• it acknowledged that unlike the statutory guidance, its policy does not state stage one decision letters would explain which departments or agencies the decision maker consulted or what the decision maker considered as part of the appeal;
• its staff use a template letter to respond to stage one appeals. The letter prompts them to explain the decision they have come to, how they made the decision and what they took into account;
• it acknowledged the template letter did not prompt staff to explain what departments or agencies they had consulted during the appeal. It would amend the template by August 2023;
• the Council receives around 200 appeals each year and the demand on officer time is high as a result. In order to ease that pressure, the Council decided to respond to stage two travel arrangement appeals by having a suitably knowledgeable independent senior officer consider the appeal.

Findings: Mrs B’s complaint

Fault in the Council’s September 2022 decision letter

27. The Council made its decision not to award F an escort in their taxi to school in September 2022. The letter did not include reference to an appeal right. This was fault and meant Mrs B was unaware of her right. This caused her frustration. I am pleased to see that following an Ombudsman’s investigation, the Council has amended its school transport decision letters to alert complainants to their right of appeal.

Fault in how the Council decided to consider Mrs B’s concerns using the complaints procedure

28. In September 2022, Mrs B became dissatisfied with the arrangements and complained to the Council’s complaint department. I am not persuaded by the Council’s rationale for putting Mrs B’s concerns through the complaints process. It had not informed Mrs B of her appeal right by that point and as set out below, the information on its website about the appeal process is inadequate.
29. While the Council says it subsequently told Mrs B of her appeal right, this was after its stage two response. It is not surprising that after having begun the complaints process, Mrs B was not willing to go through another procedure before she could complain to the Ombudsman. I am satisfied the Council was at fault for failing to use the appeal process when Mrs B complained in September 2022. This caused Mrs B uncertainty about what the Council’s appeal decision might have been.
30. In cases where a council has not properly notified someone of their right of appeal, we would normally find fault and recommend the council complete the appeal. However, in Mrs B’s case, in June 2023 the Council agreed to arrange an escort. There is no need for an appeal now, so I have not made a recommendation to that effect.

No fault in how the Council dealt with an extra child being added to the taxi

31. The decision to add an extra child to F’s taxi was made by the taxi operator and without the Council’s knowledge. It was therefore not at fault. When Mrs B told the Council about the extra child it confirmed with the operator that it had only occurred on two occasions and told the operator it was not allowed to add an extra child. This was an appropriate action to resolve the issue so the Council was not at fault.

Findings: Matters coming to the Ombudsman’s attention during the investigation

Fault in the Council’s policy on stage one appeals and decision letters

32. Statutory guidance has significant status and councils have a duty to have regard to it when formulating their policies. It is open to councils to depart from statutory guidance, but the courts have said they can do so only if they have clear and cogent reasons for doing so. We would expect a council to follow statutory guidance unless it has good reason not to. We expect a council’s policy to give parents the same opportunities they would have had if the council had used the statutory guidance’s recommended process.
33. The statutory guidance states what information councils should include in their decision letters on stage one appeals. This includes (a) the decision reached, (b) how the decision was made, (c) information about other departments or agencies the officer consulted and (d) what was taken into account in coming to the decision. The Council’s policy says it will send a stage one decision letter setting out points (a) and (b). It has no evidence to show how it decided not to include (c) and (d) in its policy and given its template decision letters include a prompt for (d), it seems likely the omission was a mistake. Regardless, the Council has not demonstrated it had justifiable reasons for departing from the guidance, so was at fault.
34. The Council says its current decision letter templates include prompts for staff to complete points (a), (b) and (d) but are missing a prompt for (c). This was also fault.
35. It is likely the faults in paragraphs 32 and 33 mean people receiving school transport stage one appeal responses receive letters which do not contain all of the information necessary to allow them to understand the Council’s decision making and to make an informed request for a stage two appeal. The Council has confirmed it will amend its template decision letters to include point (c) by August 2023. I have made a recommendation to ensure this happens. The Council will need to amend its policy based on the new statutory guidance for school transport soon. However, in the meantime, it should amend its existing policy to state it will include points (c) and (d) in stage one decision letters.

No fault in the Council’s policy on stage two travel arrangement appeals

36. The statutory guidance recommends local authorities adopt a two-stage appeal process with stage one being a review by a senior officer and stage 2 being a review by an independent appeal panel. The Council has a two-stage process, but the second stage for appeals about transport arrangements is a review by a senior officer based outside of the School Transport Team, rather than an independent appeal panel. The process therefore departs from the system recommended in the statutory guidance. Appeals about whether to provide school transport are still heard by appeal panel.
37. The Council says its stage two travel arrangement appeals differ from the statutory guidance because holding a typical multi-person appeal would take up too much officer time, given it has around 200 appeals per year. The Council has confirmed parents have the same opportunity to make verbal and/or written representations that they would have had at an appeal panel. I am therefore satisfied the Council has a justifiable reason for departing from the statutory guidance and that its alternative process allows parents the same chance to challenge its decision. It was not fault.

Fault in the Council’s online information on school transport appeals

38. The statutory guidance is clear councils should post information about their appeals processes on their websites. The Ombudsman expects this information to be easy to locate and understand. I also note the new statutory guidance states explicitly that effective appeals policies should be easy for parents to find on the local authorities website. While that guidance was not applicable at the time of the events in this investigation, it shows the importance placed on making appeal information readily available. To do otherwise risks the appearance of trying to put people off from appealing.
39. The Council posted information on its appeal process on page thirteen of its school transport policy, which can be downloaded from a webpage which contains no reference to appeals. This was fault. The fault likely has a disproportionate impact on complainants who are not computer literate, or who are vulnerable due to disability or ill-health.

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Agreed action

40. Within one month of the date of my final decision the Council will:
• apologise to Mrs B for the frustration and uncertainty she experienced due to its failure to inform her of her appeal right and its failure to put her complaint through the transport appeal process;
• amend its policy to state that stage one decision letters will include information about other departments or agencies the officer consulted and what was taken into account in coming to the decision (the rationale for the decision and how to escalate their appeal to the next stage); and
• demonstrate it has amended its template decision letters to include a prompt for the decision-maker to reference what other departments and agencies they consulted as part of the stage one appeal.
41. Within three months of the date of my final decision the Council will update its website to give information about school transport appeals. The information will be held within an easily identified webpage and not solely included in an attachment for download.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman