Summary: Miss X complained the Council will not provide transport for her child to attend their chosen preschool. Miss X says the Council has not considered her child’s needs or the individual circumstances when deciding whether to use its discretionary powers. We found fault with the Council for fettering its discretion by failing to log Miss X’s application. The Council agreed to consider Miss X’s discretionary application for travel assistance. The Council also agreed to updates its policy to amend the wording about the Statutory Guidance.

The complaint

1. Miss X complained the Council will not provide transport for her child to attend their chosen preschool. Miss X says the Council has not considered her child’s needs or the individual circumstances when deciding whether to use its discretionary powers.
2. Miss X says her child’s current preschool cannot meet their needs, but the chosen preschool can provide specialist therapies for her child’s needs. Miss X says the Council’s decision not provide transport for her child is damaging to their health.

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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. 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. 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 all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Ms X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Relevant legislation

8. Section 508C of the Education Act 1996 gives councils discretionary powers to provide transport where they consider it necessary. This transport should be for facilitating attendance of children not eligible under s.508C at any ‘relevant educational establishment’.
9. Section 509A of Education Act 1996 also gives councils discretion to make travel arrangements for children receiving early years education otherwise than in a school. The Council must be satisfied that without this assistance the child would be prevented from attending. ‘Early years education’ means the free childcare entitlement of 15 hours per week (570 hours per year) available to all children above age 3 (or age 2 if they are eligible for certain benefits).
10. The 2004 Department of Education guidance for pupils requiring special arrangements says that Councils Should note ‘very young children do not normally travel independently to school or play group but families should not be adversely affected by having a child with a disability. The assessment of entitlement for very young children should take account of particular needs and individual family circumstances’.
11. The home to school travel and transport statutory guidance (July 2014) (The Guidance) sets out a recommended two stage review/appeal process. The recommended appeal process is that a person has 20 working days from the Council’s decision about home to school transport to request a review of the decision. Within 20 working days of a review request, a senior officer should review the decision and send “a detailed written notification of the outcome of their review”.
12. A person would have 20 working days to appeal the Stage 1 decision. At stage two the guidance sets out the panel should provide a detailed written notification of the outcome of the appeal setting out:
• The nature of the decision reached
• How the review was conducted
• Information about other departments/agencies consulted as part of the process
• What factors were considered
• The rationale for the decision reached; and
• Information about the parent’s right to go to the Local Government and Social Care Ombudsman (the Ombudsman).

Council policy

13. The Council’s policy on providing home to school transport for children says it will provide travel arrangements for children of statutory school age or who are admitted to school as a rising five under admission.
14. The Council’s policy says that to qualify for travel assistance due to a special educational need or disability the child must be of a statutory school age and have a disability or SEN. Or, among other factors, the child should attend specialist provision detailed in an EHC Plan or have a Statement of Special Educational Needs. The Council outlines that its does not automatically give free travel assistance and it will need to assess an application on its own merits.
15. The Council says it will consider travel assistance for children who are not normally entitled to travel assistance under certain circumstances. This includes:
• If a child is suffering from a temporary medical condition which prevents them from walking to school.
• In extreme cases of severe and continued bullying.
• If a family has moved homes during a critical stage of education (such as in year 10 or 11) and it would be helpful for the child to remain at their school.
• Situations of parental incapacity where there is no other responsible adult who can transport the child.
16. If a person complains about the Council’s decision over school transport, the Council’s school transport team will respond first. If a person continues to complain, a team leader will respond to a complaint followed by a manager providing the final response. If the Council’s school transport team cannot resolve a complaint the Council will engage its corporate complaints procedure.
17. The Council’s policy says The Guidance says local authorities should have an appeal process for “pupils under statutory school leaving age”. The Council says it adheres to the appeal process detailed in The Guidance.

What happened

18. In October 2022, Miss X applied to the Council for one-to-one school transport for her child to attend preschool. Miss X told the Council about her child’s disabilities which meant they did not have awareness of danger and presented challenging behaviour. Miss X recognised the Council was only legally obliged to provide transport services for school-aged children but asked the Council to consider its discretion to provide transport. Miss X made this request after the working day ended.
19. The Council responded to Miss X’s request the working day after her request. The Council said it does not provide travel assistance to a preschool or nursery so it could not process the application.
20. Miss X responded to ask the Council to exercise its discretion to consider her application. Miss X asked the Council considered the individual circumstances in her request.
21. The Council responded within the hour to reiterate that it does not provide travel assistance for preschool or nursery children.
22. Miss X sought an appeal from the Council on 24 October 2022. Miss X said:
• She does not drive and cannot take public transport to preschool as it does not go there.
• She needs to take her elder child to school which restricts her capacity to take her younger child to preschool.
• Her younger child would be unable to attend this specialist preschool without transport provision from the Council.
• Her younger child cannot access care, therapies and support at their current preschool and needs transport provision for the specialist preschool.
• She is asking the Council to engage its discretionary powers to provide transport for her child.
23. The Council provided a response to Miss X on 3 November 2022 and said it had provided this response under its complaints procedure rather than as an appeal. The Council said it must provide home to school transport to the nearest suitable school and only to children of a statutory school age. The Council said it was up to it when to apply its discretionary powers. The Council said it did not need to apply its discretion because Miss X’s child had a place a preschool local to Miss X’s address meaning the child had access to early years education. The Council directed Miss X to the Ombudsman.
24. Miss X responded to the Council stating she had not made a complaint but an appeal. Miss X said the Council had failed to consider her child’s circumstances and needs. Miss X said that her local preschool could not meet her child’s needs and the preschool she had requested transport too was a specialist placement.
25. The Council responded to Miss X to advise it could not process the email as an appeal as her child is not of statutory school age. The Council said Miss X’s child was not entitled to travel assistance from the Council.
26. Miss X reiterated that her child’s preschool could not meet her child’s needs. The Council directed Miss X to the Ombudsman.

Analysis

Miss X’s application

27. Miss X applied to the Council for discretionary consideration for travel assistance for her child to preschool. Miss X applied to the Council with the knowledge that her child was not statutorily entitled to travel assistance from the Council.
28. The Council effectively responded to Miss X’s application on the same working day to advise that it does not provide travel assistance to a preschool or nursery so would not process her application. When Miss X queried this and advised she was asking the Council to exercise its discretion and consider her circumstances, the Council responded to reiterate its stance.
29. The Council has fettered its discretion by preventing Miss X from logging an application for travel assistance. While there is no statutory duty for Miss X’s child to receive travel assistance, the Education Act 1996 gives the Council discretionary powers to make travel arrangements for children receiving early years education. The Council’s refusal to log Miss X’s application because her child was not of statutory school age is fettering discretion because it did not consider the circumstances of the application. This was fault.
30. The Council gave further consideration to Miss X’s application as part of its complaint response on 3 November 2022. However, the Council has failed to detail any consideration of Miss X’s child’s disabilities or needs and has continued to prevent Miss X from lodging an application.
31. The Ombudsman is not an appeal body. We cannot replace a council’s decision with our own. Our role is to consider whether there was fault in the way the Council reached its decision. The Council fettering its discretion is fault in the way it reached its decision. The Council should log Miss X’s application for travel assistance and consider its discretion in line with The Guidance and its policy.

Miss X’s appeal

32. Miss X sought an appeal of the Council’s decision not to assess her child for travel assistance.
33. The Council lodged Miss X’s request as a complaint rather than an appeal and responded accordingly. The Guidance says that identification of an appeal compared to a complaint will need to be decided by the local authority. While the Council can make this decision, Miss X specifically sought an appeal rather than a complaint.
34. However, since the Council failed to lodge an application for Miss X’s request for travel assistance, there was no appeal right available to Miss X. Failure to lodge an application has denied Miss X any ability to appeal the decision.
35. The Council’s policy says the Guidance says the appeal process is for “pupils under statutory school leaving age”. The implication is the Council will only invoke the appeal process for children of statutory school age and not for any other applications. The Guidance makes no explicit reference to the appeal process being specifically for children of statutory school age. But if a child is not of compulsory school age, they would not be eligible for statutory travel support. As such, Miss X would not have a statutory appeal right available to her, so the Council has not denied a statutory right.

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Agreed action

36. Within one month of the Ombudsman’s final decision the Council should:
• Register Miss X’ application for discretionary travel assistance for her child and provide its decision on this application considering the relevant circumstances in the application.
• Provide its decision on the discretionary travel assistance application and outline if Miss X has any appeal available to this decision within the Council.
• Provide an apology to Miss X for the inconvenience and frustration this matter has caused.
37. Within three months of the Ombudsman’s final decision the Council should:
• Amend the wording of its policy on providing home to school transport for children to advise the home to school travel and transport statutory guidance (July 2014) says the appeal process is only for pupils “of” statutory school age.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman