London Borough of Ealing (22 013 646)

Category : Education > School transport

Decision : Upheld

Decision date : 24 Mar 2023

The Ombudsman's final decision:

Summary: Ms X says the Council did not properly consider her appeal for school transport assistance. We have found the Council at fault for the way it considered Ms X’s appeal. We have made recommendations to remedy the injustice caused.

The complaint

  1. Ms X complains the Council did not properly consider her appeal for school transport assistance. She says this has caused avoidable uncertainty and distress.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. I discussed the complaint with Ms X and considered information she provided.
  2. I considered information provided by the Council.
  3. Both Ms X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.

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Relevant legislation, guidance and policy

Transport appeals

  1. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
  2. The Government’s Home to School transport guidance recommends councils adopt the following appeals process:
    • Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision. They then send the parent a detailed decision letter, setting out the nature of the decision and how the review was conducted. The letter should also set out what was considered and the rationale for the decision reached. The letter should explain how to appeal their case to stage 2.
    • Stage 2: Within 40 working days of receipt, an independent appeal panel considers written and verbal representations. A detailed decision is sent, setting out the nature of the decision reached and how the review was conducted. Again, the letter should say what factors were considered and the rationale for the decision reached. The letter should contain information about approaching the Ombudsman. (Annex 2 of the guidance)

The Council’s travel assistance policy

  1. The Council has published a travel assistance policy, setting out how it will consider applications for travel assistance for school-age children and what the criteria are.
  2. The Council has adopted the two-stage appeal procedure set out in the government’s guidance. Relevant to this complaint, the Council’s policy says:
    • A senior officer will review the original decision at a stage one appeal. The appeal decision will be sent to the applicant within 20 working days.
    • An independent panel will consider the stage two appeal. The panel will be made up of three senior officers: the Assistant Director for Children with Additional Needs, the Assistant Director of School Planning and Resources, and the Head of Disabilities. These officers may choose a substitute officer to be on the panel in their place.
  3. The policy states officers involved in both the original decision and the stage one appeal decision must not be on the panel for the stage two appeal.
  4. The Council’s policy also says if parents have a disability that prevents them from walking their child to school, the Council may provide travel assistance to the child. This may happen even if they live within the statutory walking distance.

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What I found

Background

  1. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every interaction between parties. Where necessary, I have expanded on some of these events in the analysis section of this decision statement.
  2. Ms X applied for travel assistance for her child, F, in September 2022. In October 2022, the Council wrote to Ms X to say it would not provide travel assistance for F. The Council’s letter set out the grounds for its decision:
      1. The Council said Ms X had not provided sufficient evidence for it to grant travel assistance. It said F did not have an Education, Health and Care (EHC) Plan and the medical evidence submitted did not demonstrate that F’s needs met the criteria for assistance.
      2. The Council said the distance criteria had not been met, as Ms X lived around half a mile from the school, which was inside the statutory walking distance.
      3. The Council said parents had to make suitable arrangements to ensure their children attended school.
  3. Ms X appealed this decision, providing additional information to the Council about the family’s medical conditions and circumstances. She told the Council she was disabled, had no support network, and her reduced mobility prevented her from consistently taking F to school. This affected F’s attendance. On 18 November 2022, the Council wrote to Ms X with its stage one appeal decision. The Council said:
      1. It had reviewed the original decision and had considered F’s individual circumstances, the family’s circumstances, the relevant journey times, and the Council’s statutory duties.
      2. It said there was no EHC Plan and there were no special educational needs. It said the evidence did not show F’s needs met the criteria for the Council to provide travel assistance. It recognised Ms X was suffering from back and foot pain, saying Ms X was receiving suitable treatment.
      3. It provided details of how to appeal this decision.
  4. A senior travel assessment officer, Officer A, considered the stage one appeal.
  5. Ms X sought a stage two appeal of the decision. She provided further information and said the Council had not properly considered her own limited mobility in its decision.
  6. In December 2022, Ms X attended a stage two appeal meeting with Officer A and a senior manager, Officer B. On 3 January 2023, the Council wrote to Ms X with its stage two appeal decision. The Council said:
      1. Officer B had met with Ms X and Officer A as part of the appeal. The Council said it had considered the stage one appeal and the information Ms X had provided.
      2. After considering this information, Officer B did not believe there were grounds to overturn the original appeal decision. The Council said it believed the family’s health needs did not relate to special educational provision, but were likely social care needs. It offered to liaise with its social care services if Ms X provided consent.
  7. Ms X referred the matter to the Ombudsman.

Analysis

  1. Ms X’s appeal submissions make clear her own limited mobility was a factor in her application for travel assistance. She stated her disability meant she struggled to consistently take F to school. The Council’s decision letters recognised Ms X’s health conditions, stating she was receiving suitable treatment and support from her health practitioners. However, the decision letters did not clearly address whether the Council considered it should offer travel assistance under the provision in its policy for children with disabled parents, set out in paragraph 11. I have found the Council at fault for not clearly addressing this part of Ms X’s appeal.
  2. This fault caused Ms X an injustice. The Council not clearly addressing this in its decision letters causes uncertainty about whether it adequately considered this part of Ms X’s appeal.
  3. Paragraphs 9 and 10 set out the Council’s travel assistance appeal process. The policy makes clear an independent panel of three specific officers, or those chosen to appear on their behalf, should hear and decide the stage two appeal. The panel members should have had no involvement in the original or stage one appeal decisions.
  4. Ms X’s stage two appeal was heard and decided by only one senior officer, Officer B. There is no provision in the Council’s policy for only one officer to decide the stage two appeal.
  5. The stage two appeal decision letter also suggests Officer B’s decision was informed by Officer A, who was present at the stage two appeal meeting. This would appear contrary to the Council’s policy, given Officer A’s involvement in the stage one appeal decision.
  6. For these reasons, I believe the Council did not properly consider Ms X’s second stage appeal, in line with its published policy. I have found the Council at fault for this.
  7. There is uncertainty about whether the outcome would have been different, had the stage two appeal been held as set out in the Council’s policy. This uncertainty is an injustice to Ms X.

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Agreed action

  1. Within four weeks of the final decision being issued, the Council has agreed to:
      1. apologise in writing to Ms X for the faults and injustice identified in this statement.
      2. consider Ms X’s stage two appeal again. The Council should ensure the panel composition and appeal proceedings are compliant with the Council’s published policy, and that panel members have had no previous involvement in Ms X’s case.
      3. remind relevant officers of the importance of conducting appeals in accordance with the Council’s policy.
  2. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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