Summary: Mr D complained the Council has failed to properly consider his application and appeal for school transport for his daughter. We find the Council was at fault for not allowing Mr D the opportunity to present his case orally and for the lack of detail in its initial decision letter. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mr D complained the Council has failed to properly consider his application and appeal for school transport for his daughter (F). As a result, he believes F may be put at risk on her journey to school.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
6. Mr D and the Council 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

Legal and administrative background

7. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
8. Section 508B of the Education Act 1996 (the Act) places a duty on councils to ensure that suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school. Eligible children include those who:

• Live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above).
• Receive free school meals, or whose parents receive the maximum Working Tax Credit, for transport to one of the three nearest schools up to six miles.

9. Schedule 35B of the Act says councils have a duty to make transport arrangements for all children who cannot be reasonably expected to walk to school because of mobility problems or because of associated health and safety issues related to their SEN. Eligibility for such children should be assessed on an individual basis to identify their transport requirements. Usual transport requirements (for example the statutory walking distance) should not be considered when assessing the transport needs of children eligible due to SEN and/or disability.
10. The government also issued statutory guidance in July 2014 to councils on home to school transport. This says:

• When determining whether a child with SEN, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
• 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. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 18)

The Council’s policy

11. The Council has a two-stage appeal process for parents who wish to challenge a decision about school transport:

• Stage one – consideration by an officer more senior than the previous decision maker.
• Stage two – a full and final decision made by an officer more senior than the officer that considered the first stage appeal.

12. At the stage two appeal, parents can ask for a telephone or in person appointment with the second stage decision maker to make their case orally.

What happened

13. Mr D’s daughter, F, has SEN and an EHC plan. Mr D applied to the Council for home to school transport for F. He stated that F has emotional and behavioural difficulties. He also said F could not cope going to school on public transport and it would cause her stress and anxiety.
14. The Council wrote to Mr D and rejected his application. It said F was not entitled to home to school transport because they live within the statutory walking distance of three miles.
15. Mr D sent his stage one appeal to the Council. He said F could not cope walking to school because of her needs and she would be vulnerable to peer pressure. He also said her emotional and behavioural needs would create a health and safety hazard to her and others on her journey to school. He provided a letter from the headteacher of F’s school in support of his appeal. The headteacher stated Mr D had to be at work early in the morning and his wife, Mrs D, does not drive. Mr D also provided medical evidence which said F has mobility issues.
16. The Council responded to Mr D’s appeal. It said the legal requirement is for a child to be accompanied on their walk to school. It said it had reviewed the walk and there are clear footpaths and crossing points. It said there was no clear evidence F could not walk the required distance to school if she was accompanied.
17. Mr D responded and asked what he had to do to ask for a stage two appeal. The Council responded and told him to email the senior officer.
18. The Council reviewed Mr D’s appeal at stage two. It repeated its previous view there was no evidence F could not walk the distance from home to school if accompanied by a parent. It said it was reasonable for a parent to accompany F because of her needs. It also said the medical evidence he supplied in support of his appeal was more than five years old and did not say F could not walk. Finally, it said parental work commitments was not a good enough reason to depart from the legal position.

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Analysis

19. When the Council responded to my enquiries, it accepted its initial rejection letter of Mr D’s application did not adequately explain its assessment and reasons for refusal. I agree the Council was at fault as its letter is very brief and does not address the points Mr D raised in his application. This left Mr D with the impression the Council was not properly considering his application.
20. The Ombudsman has accepted, in earlier investigations, that the Council had provided satisfactory reasons for departing from the statutory guidance and was not at fault for having a senior officer review rather than an appeal panel at the second stage.
21. However, the guidance says councils should consider oral representations during the appeals process. Although the Council’s policy says parents can make oral representations, when Mr D asked how to escalate his appeal, the Council only referred to him making written representations. It failed to make him aware he could make oral representations. This is fault.
22. The Council has accepted the officer should have made Mr D aware of his right to make oral representations. I do not know if oral representations from Mr D would have made a difference to the decision. However, the Council’s fault provides Mr D with some uncertainty, which is an injustice.
23. In response to my enquiries, the Council said it would apologise to Mr D and pay him £100 for his injustice. It also said it would give Mr D an opportunity to speak with the second stage decision maker and submit any new written material. I welcome the Council’s offers and I consider it is a suitable way to remedy the injustice I have identified in Mr D’s case. I also recommend it implements service improvements to prevent a recurrence of the fault.

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Agreed action

24. To address the injustice caused by fault, by 18 May 2023 the Council has agreed to:

• Apologise to Mr D.
• Pay Mr D £100 for his uncertainty.
• Offer Mr D a fresh stage two appeal including the opportunity to discuss his case orally with the second stage decision maker.

25. By 19 June 2023 the Council will issue written reminders to relevant staff to ensure:

• They provide applicants with sufficiently detailed reasons for rejecting a home to school transport application.
• When an applicant asks about escalating their case from stage one to stage two during the home to school transport appeals process, they are made aware they can make their case orally as well as in writing.

26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. There was fault by the Council, which caused Mr D an injustice. The Council has accepted my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman