Summary: Miss B complained that the Council in deciding her son’s application for school transport, failed to follow the guidance and its own policy or consider the individual circumstances of the case. We have found fault. The Council has agreed to pay Miss B £200 and has improved its procedures for the future.

The complaint

1. Miss B complained that East Sussex County Council (the Council) delayed unreasonably in deciding her application for school transport for her son, C. Specifically, it:
• misled her as to the correct process, saying that if School Z was named on C’s Education, Health and Care Plan (EHCP) then the case would not need to go to its Inclusion, Special Educational Needs and Disability Travel Panel (the Panel);
• failed to follow the guidance and award transport, once the EHCP named School Z; and
• failed to consider C’s individual transport needs when awarding first a bus pass then a train pass, even though Miss B had provided specific information as to why he needed a taxi;
2. This caused Miss B frustration, distress and time and trouble in having to pursue an appeal and a complaint and get C to school herself.

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The Ombudsman’s role and powers

3. 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)
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 considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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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What I found

Provision of school transport

7. 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. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘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);

Accompaniment

8. 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). 

Nearest suitable school

9. If only one school is named in a young person’s EHCP, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.

Council’s SEND travel assistance policy for statutory-aged children

10. This policy says that eligible children only qualify for free transport to their nearest suitable school. It clarifies that for children with special educational needs, this is defined as the school named in section I of their EHCP.
11. The Council says the following ‘gateway criteria’ criteria must be met for an application for SEND travel assistance to be considered:
• The child lives in East Sussex.
• The child has current EHCP.
• The school or education setting is the nearest suitable school to the child’s home address and named in the child’s EHCP.
12. If these gateway criteria are met, the Council will then consider the needs of the child to assess whether transport arrangements need to be made to those who cannot reasonably be expected to walk. The child’s needs will be assessed to determine their ability to travel to school (either accompanied or unaccompanied). This will include consideration of travel by public transport, walking or by other reasonable means. Parents/carers will be expected to prioritise transporting the child over other commitments.
13. 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, for example, if a parent’s disability prevents them from accompanying their child to school.

What happened

14. Miss B’s son C has special educational needs. He was due to transfer to secondary school in September 2022. She applied to the Council in May 2022 for transport. The Council was in the process of completing an assessment of C’s needs for an EHCP. On 15 June 2022 it agreed to issue an EHCP.
15. The Council refused the transport application because C did not have a current EHCP. Miss B appealed the decision. In her appeal she said C had an ASD diagnosis, with a language disorder and high levels of anxiety and he was in receipt of Disability Living Allowance [DLA] (including the lower rate for supervision when outside). She said in a recent visit to School Z he ran off and hid as he got so distressed.
16. She provided evidence of the DLA and his treatment from the mental health service. She requested taxi transport for the first year. She attached a report from an Occupational Therapist which highlighted his sensitivity to noise and his inability to manage risk. She explained it was not reasonable to expect C to travel to school independently and she was unable to take him as she was single parent with a job, she did not drive and had another child to get to school. She had no other family support nearby.
17. The Council agreed to put the appeal on hold until the EHCP was finalised. It said that if School Z was named as C’s nearest suitable school in section I of the EHCP, the appeal would not need to proceed as C would be entitled to transport on a statutory basis.
18. The EHCP was finalised on 15 September 2022, naming School Z. The Council acknowledged receipt of the EHCP but said her appeal still needed to go to the Panel for approval. Miss B queried this, given the advice in June 2022 that C would be entitled to transport if School Z was named in section I of the EHCP.
19. The Council replied saying:

“This was my understanding at the time, so I apologise for adding to the confusion. For cases such as this where the young person is attending a mainstream school that isn’t their closest placement, it is standard practice to review these at panel even when the school placement is named, so the panel can consider the reasons why the closer schools are unable to meet needs”

20. Miss B provided more information as to why the nearer schools were not suitable for C and queried why this process was necessary. She said it was having a significant impact on the household.
21. On 22 September 2022 the Panel agreed to provide a bus pass for transport. In an internal email explaining the decision it said that School Z was a mainstream placement so C should be capable of using the bus.
22. Mrs B made a formal complaint on 24 September 2022. She complained about the fact C’s case had to go to the Panel at all given the Council’s advice in June 2022 and the fact that School Z had been named in the EHCP. She also questioned how the Panel had arrived at the view that a bus pass would be sufficient given all the information she had provided and all the information in the EHCP indicating C could not independently use public transport. She said she had complained because she could not wait 45 days for the stage two appeal to be heard.
23. On 11 October 2022 the Council reconsidered the stage one appeal decision and offered C a train pass. Miss B challenged the decision on the grounds C could not use the train alone and she was unable to accompany him as she was a working single parent. On 13 October 2022 the Panel agreed to offer C taxi transport. This started on 31 October 2022
24. On 25 October 2022 the Council responded to her complaint. It explained that the case had to go to the Panel to consider whether the named school was the nearest suitable and this was done for mainstream and SEN cases at the same time. The response said:

“As he is attending a mainstream school, we made our standard mainstream offer of a bus pass at that time.”

25. The Council went on to explain that following further information from Miss B the Panel reconsidered the offer and changed it to a train pass as this seemed reasonable. Again, following additional explanation, the Panel changed its decision to taxi transport two days later. It said it had gone outside its normal processes to speed up the decision-making. It did not consider there had been any significant delays in deciding the transport application and did not uphold the complaint.
26. On 2 November 2022 Miss B pursued a stage two appeal as she considered the Council’s Panel process had caused unnecessary delays, the application of a blanket bus pass for all mainstream applicants was wrong and the Council had failed to acknowledge the impact of the inflexible process on her and her family.
27. The Council replied on 11 November 2022. It said

“We review eligibility for travel assistance on a case-by-case basis, against our policies. This is separate to the process of issuing an EHCP. As stated previously, where the student is attending a mainstream school that is not their closest school, we apply more scrutiny to understand why no closer school can meet their needs. This does not alter any statutory responsibility that the Council has to provide home to school travel assistance to pupils that are determined to be eligible against our home to school travel assistance policies.”

28. It apologised for the ‘mis-processing’ of the travel assistance application, but did not feel any compensation was due as the Council had not delayed.
29. Miss B complained to us. She said she spent approximately £200 on bus, train and taxi fares to get C to school before the taxi service started on 31 October 2022.

Analysis

30. The Council could not decide the transport application until it had finalised C’s EHCP. I do not find fault with the Council’s actions before September 2022. I consider the advice the Council gave in June 2022 (that if School Z was named on the EHCP then the Council would have a statutory duty to provide transport) was correct.
31. The Council’s policy and the guidance following the Dudley judgement (see paragraph 8 above) make clear that the school named in section I of the EHCP is the nearest suitable school. If the Council considers this is not the case, it should have named two schools in section I with the comparable transport costs. As only School Z was named the Council should have accepted this was the nearest suitable school. It was unnecessary for the Panel to consider this point again and was fault.
32. I accept this only caused an initial week’s delay in deciding C’s transport application, but I am concerned that this error could recur for other children with EHCPs applying for transport.
33. The Council’s decision to provide a bus and then a train pass for C was also fault. Miss B had already provided all the necessary information in the application form sent in June and then again in September 2022 once the EHCP had been finalised, for the Council to make the decision that C should be eligible for a taxi. This caused a further delay of approximately a month.
34. Miss B was caused distress and uncertainty, along with the financial impact of paying for her own transport and the worry about the impact on her job.

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Agreed action

35. In recognition of the injustice caused to Miss B, I recommended the Council within one month of the date of my final decision:
• pays Miss B £200 and
• issues guidance to all staff involved with deciding transport applications:
1. that when a child has an EHCP naming one school in Section I, the Council should treat it as the nearest suitable school for that child’s needs, without any further consideration of the other options; and
2. to ensure they consider all information provided about the child before reaching a view on the most appropriate transport and not be guided solely by the type of school placement named on an EHCP.
36. In response to a draft of the decision the Council has accepted the recommendations. It said the purpose of the Panel’s review is to consider the implications internally and to determine which team will fund the travel assistance. It acknowledges that this is an entirely internal matter and should not have delayed C’s case or any other case. It has updated its processes to ensure the internal review process takes place after the transport application has been assessed to prevent affecting the timescales for setting up transport. It has communicated this change to the transport officer.
37. It has also reinforced the requirement to ensure every child eligible for travel assistance undergoes the same needs assessment regardless of the type of school attended. This has been discussed and reviewed at the Panel.
38. I am satisfied it has complied with the procedural improvements. It should provide us with evidence it has paid £200 to Miss B within one month.

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Final decision

39. I consider this is a proportionate way of putting right the injustice caused to Miss B and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman