Summary: Miss X complained about the Council’s refusal to backdate an increase to her personal travel budget (“PTB”), used to take her child to school. Miss X said she struggled financially and suffered distress. We found fault in the Council’s decision making. We recommended the Council provides Miss X with an apology, pays £100 for time and trouble, pays £100 for distress, backdates the increase in her PTB to 12 July 2022 and acts to improve its services.

The complaint

1. Miss X complains about the Council’s decision on her personal travel budget (“PTB”) to transport her daughter, Y, to school. She is happy the Council has increased this but says it has not properly backdated the increase. She is also unhappy the Council delayed responding to her complaints. Miss X says she has struggled financially and suffered distress.

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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. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply (Local Government Act 1974, section 26(5))
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)
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.

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How I considered this complaint

9. I spoke to Miss X and I reviewed documents provided by Miss X and the Council.
10. I gave Miss X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Council’s Home to School Transport Policy

11. This says travel assistance will be normally take the form of either:
• a pass for public transport, by bus or train.
• a place on a school bus or other vehicle hired by the Council.
• payment of the travel costs through a mileage allowance or personal travel budget for families to make their own arrangements. The mileage for this payment will be calculated based on the shortest driving route (avoiding toll roads) using Google maps.
• any other suitable method making the best use of all resources (including financial) which are available.
12. A student has 20 working days from receipt of the decision on travel assistance to seek a review or appeal.

Principles of good administrative practice

13. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction. This includes:
• being open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete.

What happened

14. Miss X says the Council paid for a taxi to take her daughter, Y, to and from secondary school. However, following an incident her daughter could not continue to use a taxi. Miss X says the only option was for her to take her daughter to school.
15. On 25 August 2021 the Council agreed a PTB with Miss X. It has provided copy of this agreement. This says:
• The PTB is based on a fixed sum per mile for the mileage of the home to school journey as calculated using the shortest driving route on a specified website.
• It will arrange alternative home to school travel assistance within 10 working days if your family circumstances changes and you tell the Council in writing that you can no longer organise transport yourself.
• It will review the availability and suitability of your PTB, including the amount offered and the calculation made, after six weeks, and then at least once a year, as well as if circumstances change (for example due to a change of address or school).
16. Miss X did not question the mileage allowance at the time or seek a review or appeal (see paragraph 12).
17. Miss X says in early 2022 she asked the Council to increase the PTB as fuel costs had increased. She says the Council told her it had received many calls from parents but it would not increase this. The Council says it has no record of this call but if Miss X said she was unhappy with the PTB it would have told her to raise a complaint through its complaints process.
18. On 12 July 2022 Miss X complained to the Council it had refused her requests for an increase in the PTB to take account of increased fuel costs, despite increasing the funding available to its travel providers for this reason. She explained she was unable to work due to her commitments, which included taking her daughter to school.
19. In September 2022 the Council told Miss X it had overlooked sending her complaint onto the transport team to respond. It apologised and said it would now do so. Miss X queried why the complaint would be sent to the transport team. The Council then told Miss X it had checked this and now sent the query to its SEN team who would need to consider whether to increase the PTB for everyone.
20. On 6 October the Council wrote to Miss X apologising for the delay and said it had provided reminders to the team to prevent recurrence. It had asked the SEN team to confirm they would consider the request for an increase to the PTB and to provide a timescale for doing so, however despite chasing it had not received a response. It would continue to pursue this however she could also contact the Ombudsman.
21. On the same day a Council officer emailed Miss X to explain they had been asked to consider an enhancement of her PTB due to the fact she had no alternative but to transport Y due to her needs. It said this was not reflected in the original offer, and it would like the opportunity to put this right.
22. The Council then spoke to Miss X and followed up in writing on 7 October. It said:
• Miss X had explained Y could not use a taxi due to anxiety and she had no choice but to take Y to school.
• Miss X had no support network and was unable to work due to the time this took.
• Miss X could no longer afford to maintain and fuel her vehicle.
• It offered to increase the PTB to £20 per journey. This was equal to the cost of a passenger assistant on procured transport which it considered Y needed. Miss X could decide how best to provide the support with this funding.
• As a gesture of goodwill it would backdate this offer to the start of term [September 2022] which was the maximum it could agree and coincided with the date she started her enquiry.
23. On the same date Miss X replied to say the Council should backdate the increase to the date it first agreed the PTB as her circumstances were the same then as now. She also asked that going forward it paid £25 per journey to reflect Y’s needs.
24. The Council then agreed to pay £50 per day going forward and said it would check regarding backdating this.
25. Miss X chased a further response.
26. On 9 November Miss X told the Council it sent her paperwork increasing the PTB to £50 per day effective from 1 November 2022. However, it previously offered to backdate to September 2022 and it should apply this from September 2021.
27. On 10 November the Council confirmed it would apply a rate of £50 per day backdated to September 2022. It would pay this in December.
28. Miss X then complained to the Ombudsman.
29. In response to enquiries the Council explained:
• It increased Miss X’s PTB taking into account the increased fuel costs and information she provided to its officer, as referred in its emails of 7 October. (I note the Council has not referred to any relevant law or policy in reaching this decision.)
• It had no record of any communication with Miss X prior to receiving the official complaint form on 12 July. However, if she had contacted the team to complain it would have referred her to the official complaints process.
• As to whether it should have awarded a larger PTB in August 2021; the enhancement was in relation to the increase in the cost of fuel in 2022. Operators’ costs rose and as Miss X outlined in her official complaint, the Council made additional funds available to cover these costs to operators. The cost of fuel was not as high in 2021 and no additional financial support was made available to operators in 2021 for fuel costs.
• It referred to its policy for details of the mileage allowance. (I note it remains unclear how it calculates the “fixed sum” per mile.)
• As to whether it would increase the PTB for other service users to take account of rising fuel costs the Council said it was currently in the process of carrying out a review of the following:
1. review the operation of mileage allowances
2. review the mileage allowance rate
3. produce a process for considering complaints about the rate
4. review the relevant wording in the home-to-school transport policy and guidance document.
• The initial timescale for completing the review was March 2023 however it now expected this to take longer due to the complexities involved and potential financial impact on the Council.
30. In comments on a draft decision Miss X said:
• The Council did not review the PTB after six weeks or one year. It was not up to her to seek a review.
• She was not given any information on how to appeal the PTB.
• The Council did not log her call, of early 2022, as a stage 1 complaint.
• She chased the Council in August and September before receiving its October response.
• In May 2022 the Council announced it was increasing funding to transport providers due to soaring levels in fuel prices, backdated to March. Yet the Council did not consider the same increase for those in receipt of a PTB. The investigator has not questioned this.
• She personally travelled more than 700 miles per week and the cost of fuel had impacted her significantly, yet the Council had not offered her this increase from March. The Council’s May announcement also highlighted that fuel prices had increased six months prior.
• During a phone call the Council said it would backdate the PTB to when it was agreed [August 2021]. The conversation was discussing her personal situation and not specifically relating to fuel costs.
• After several phone calls with the Council, she sent the thread of emails received, as every communication had been given a different response causing further frustration and confusion.
• The Ombudsman has backdated PTB for longer periods in other cases.
• The Council did not offer a discretionary payment due to fuel costs. Rather, the Council agreed to increase the PTB due to her individual circumstances. Namely, the number of miles travelled and the impact of this.
• The draft decision, for the Council to backdate payment to July, does not consider her circumstances, the Council’s failure to follow its own process or the Council’s failure to consider reviewing costs for people who use PTB.

Findings

31. Miss X could have appealed the Council’s decision on her PTB in August 2021 if she was unhappy with it. Any complaint about this decision is out of time and I consider there is no good reason to exercise discretion to investigate. I acknowledge Miss X’s comment that she was unaware of the appeals process. However, it remained open to her to complain to the Council in August 2021 if she was unhappy with the PTB, and there is nothing to suggest she did.
32. I accept Miss X spoke to the Council in early 2022 but without a recording or contemporaneous notes of the phone call I cannot say what was discussed.
33. The documents show the Council delayed responding to Miss X’s complaint and request for an increase to her PTB from July until October. This is fault. Miss X was put to avoidable time and trouble. This is injustice.
34. The Council provided conflicting information as to the date of the increase. This is fault. Miss X suffered distress and uncertainty. This is injustice.
35. The Council decided to backdate the increase to September 2022. This appears to have been a discretionary decision based on the information available to the Council at the time, including increased fuel costs. The Council did not have to agree an increase under any law or policy, rather it had no policy covering this circumstance. I cannot say it would have reached the same decision in August 2021 as the circumstances regarding fuel costs were different then.
36. The Council gave reasons for its decision to backdate the increase to September 2022. This included taking into account when Miss X first raised her query. However, I am satisfied Miss X first raised a query in July 2022; the Council simply delayed addressing this. I therefore consider the Council took into account incorrect information in reaching its decision. This is fault. This caused Miss X distress and uncertainty. This is injustice.
37. I am satisfied on balance that had the Council considered the correct date or, had it responded to the complaint in a timely manner, it would have applied the increase from 12 July 2022. Miss X has therefore missed out on this additional financial support. This is injustice.
38. We expect councils to have a clear policy to support decision making. However, the Council’s policy does not explain how it calculates the “fixed sum” per mile for any mileage allowance and it does not outline how it might consider any complaints about this. This is fault. This caused Miss X distress and uncertainty. This is injustice. And others may have missed the opportunity to benefit from an increased mileage allowance.
39. I acknowledge the Council increased funding for travel providers in early 2022 due to rising fuel costs. It does not follow that it had to consider an increase for anyone else. Rather the Council should have a policy in place that outlines how it calculates mileage allowance under PTBs and how it considers any dispute about this. I have addressed this above and in my recommendations.
40. Miss X did not previously complain about any failure by the Council to inform her of the appeals process in August 2021 or that it failed to review its decision thereafter. I will not investigate these complaints now as they are premature and it is reasonable to allow the Council the chance to investigate.
41. I have reached findings in consideration of the information and evidence available and on the balance of probabilities. Where a phone call takes place and there is no recording of that call, I will consider any corroborating evidence, such as an email sent shortly afterwards summarising the call. However, there is a lack of supporting evidence that the Council agreed to increase the PTB from August 2021 during any call. Therefore, while I acknowledge Miss X’s comments in this regard, I am unable to find this proven, even on balance.

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Agreed action

42. To remedy the injustice set out above I recommend the Council carry out the following actions:
43. Within one month:
• Provide Miss X with a written apology for the identified faults;
• Pay Miss X £100 for time and trouble;
• Pay Miss X £100 for distress and uncertainty;
• Backdate the increase to Miss X’s PTB to 12 July 2022;
44. Within three months:
• Amend its transport policy to include how it calculates the “fixed sum” per mile for the mileage allowance and how it will consider any complaints about this, including any request to backdate increases in the allowance.
• Inform service users with a PTB of its updated policy.
45. The Council should provide us with evidence it has complied with the above actions.
46. The Council has accepted my recommendations.

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Final decision

47. I find fault in the Council’s decision making on Miss X’s PTB and delay in its complaint handling. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman