Summary: Mrs X complained the Council failed to provide school transport for her child, Y, between September and November 2022. The Council was at fault for failing to secure the transport it had agreed to provide. This meant Y was unable to attend school during this period. It agreed to apologise to Mrs X and pay her £700 for the benefit of Y’s education.

The complaint

1. Mrs X complains the Council failed to provide school transport for her child, Y, between September and November 2022.
2. Mrs X said the Council’s failings caused Y to miss both the education to which she was entitled and the content of her Education, Health, and Care plan. Mrs X also says the matter caused her distress and frustration.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health and Care Plan.
8. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
9. 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

10. I spoke with Mrs X and considered information she provided.
11. I considered the Council’s response to my enquiry letter.
12. I considered relevant law and statutory guidance as outlined below.
13. Mrs X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

School Transport

14. Councils 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.
15. If only one school is named in a young person’s EHC plan, 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. (Education Act 1996, section 508B and Schedule 35B)
16. The Education Act 1996 places a duty on parents to ensure their children of compulsory school age receive a suitable full-time education. Failure to meet this duty is an offence. Councils have the power to prosecute parents who fail to ensure their child’s regular attendance at school. If the court finds a parent guilty of an offence, they can receive a fine or imprisonment of up to three months.
17. The Education Act 1996 contains a defence in law against such prosecution of parents if the child is eligible for free travel to school and the council has failed to make home to school travel arrangements for them. (Education Act 1996, section 444 3B)

The Council’s school transport policy

18. The Council’s website includes information about how the Council manages escorted routes where an escort is unavailable. It says “…if the School Escort is unavailable and we are unable to find a relief School Escort, the transport may be cancelled, and this could be for the full duration of the absence. This may be at very short notice (on the day) and it is then the parent’s responsibility to make the travel arrangements whilst the escort is absent”.

Education, Health and Care plan (EHC) plan

19. Children with complex needs may require an Education, Health and Care (EHC) plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
20. The council has a duty to secure the specified special educational provision in an EHC plan for the child or young person (Section 42 Children and Families Act). The Courts have said this duty to arrange provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible. (R v London Borough of Harrow ex parte M [1997] ELR 62), R v North Tyneside Borough Council [2010] EWCA Civ 135)

Child in Need Plan

21. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. When a council assesses a child as being in need, it supports them through a child in need plan.

The Council’s complaints policy

22. The Council has a complaints policy. It has three stages:
• stage one is a local resolution;
• stage two is a formal written response if the local resolution fails; and
• stage three is a review of the stage two response.
23. In all cases, the Council’s policy says investigations should be completed within 20 working days.

What happened

24. Mrs X has a child, Y, who has special educational needs and an EHC plan. Y has a diagnosis of autism and other learning needs. She is also subject to a Child in Need plan and has an allocated social worker.
25. The Council accepted Y was an eligible child for school transport and arranged shared transport to and from the school named in Y’s EHC plan until 2025. However, during the school year 2021/22 Mrs X told the Council Y struggled with her morning routines because of her special educational needs. She said the 2–3-minute timescale for Y to get onto the shared transport on a morning was causing Y too much distress. The Council accepted this and agreed to provide Y with temporary solo transport with an escort from April 2022.
26. At the start of the new academic year in September 2022 no escorted solo transport was sent to collect Y for the home to school journey. Mrs X wrote to the Council and complained it had failed to organise transport for Y which had led to her missing school. Mrs X asked the Council to explain why no transport was provided.
27. The Council initially reviewed the matter at stage one of its complaints process through a local resolution. It found that Y had transport in place until July 2025. However, it later discovered there had been an error in its system and the temporary provision had been mistakenly removed. The Council says it acted to reinstate the temporary solo escorted transport at the time.
28. At around the same time, Mrs X and Mr Z contacted the school by email. The school acknowledged the parents’ frustration regarding the transport and offered to send work home. Mr Z responded the same day and requested to be kept up to date about the term themes, songs, stories, new visuals being used and the overall term topic. The school responded with Y’s targets, a class newsletter including a song board, a link to a song and said the class had completed some arts and crafts work that week.
29. In mid-September 2022 the Council held a Child in Need review meeting. The meeting minutes show the Council was concerned no transport was available and the impact this would have on Y. It documented the difficulties Y’s parents experienced when preparing her for school on a morning due to Y’s emotional difficulties. To resolve the matter, the Council said its social care team attempted to procure a care package to help with morning transitions but was unsuccessful in recruiting to the position.
30. In early October 2022, the Council’s social care team attended a professionals meeting with Y’s school. The records show the Council was concerned there was still no transport escort available. It documented it did not consider Mrs X could act as an escort for Y in lieu of an external provider because of Y’s presentation and risk of injury to Mrs X.
31. The Council then wrote to Mrs X at stage two of its complaints process after its stage one local resolution was unsuccessful. It told her:
• it was sorry for the delay in responding to her complaint;
• the temporary solo transport exception had been automatically deleted from the Council’s system when it expired in July 2022. This resulted in the Council’s planners being unaware of this need. Once the Council became aware of the matter, it immediately agreed to reinstate the temporary solo transport for the morning journey until January 2023 so the matter could be reviewed;
• whilst it had agreed to the solo transport, it was unable to secure an escort for the journey. It told Mrs X it was recruiting more school escorts and hoped these would be available soon; and
• it would update its record keeping system for temporary exceptions to ensure the situation does not reoccur.
32. At around the same time, the school emailed Mrs X and Mr Z. It sent a link to a “number songs” activity, a link to an activity website, and copies of excerpts from a workbook. The school said it was happy to send more suggestions and activities for Y.
33. Three days later the school contacted the Council. It said Y had not been at school for some time, and that Mrs X and Mr Z had enquired about alternative provision for Y. The school told the Council it could not deliver alternative provision, and that if transport was available, Y would be able to receive a suitable education at the school. The school received no response and chased the Council twice in November 2022 to arrange a meeting to resolve the matter.
34. Mrs X remained dissatisfied with the Council’s stage two response and requested the complaint be considered at the final stage of the Council’s complaints process.
35. In early November 2022 the Council secured an escort for the home to school solo transport for Y.
36. In late in late November 2022 the Council sought to organise a meeting with the school about Y’s education in response to the school’s messages in October and November 2022, but by that time transport had been arranged.
37. The Council responded to Mrs X at the final stage of its complaints process in January 2023. It told her:
• an administration error meant the solo transport was not organised. There was also a shortage of escorts which required recruitment to resolve;
• solo transport was made available from mid-November 2022. It said that group transport was always available for Y and that it was Mrs X’s responsibility to ensure Y attends school;
• Y’s school had tried to contact Mrs X in mid-October 2022 with suggestions for how to educate Y at home, but Mrs X did not respond;
• Mrs X had taken Y on holiday in early November, so for a week where no transport was available, Y was not in need of this;
• it acknowledged it had a duty to provide Y with an education, but told Mrs X that as a result of her not taking Y to school, and as she had not responded to the school’s attempts to provide suggestions of work to undertake during Y’s absence, it was not possible to discuss alternative arrangements;
• it was her responsibility as Y’s parent to take Y to school if for any reason an escort cannot be provided. In addition, the group transport was still available which would have allowed Y to attend school; and
• Mrs X had not sought authorisation from the school to remove Y from education for the purpose of a holiday.
38. Mrs X remained dissatisfied with the Council’s response and brought her complaint to us.

My findings

School transport

39. The Council accepted Y as an “eligible child” for school transport. It later agreed to provide solo transport for Y’s morning journey from home to school from April 2022. There was an error in the Council’s system and the escorted journey was deleted automatically at the end of the summer term. Therefore, the transport was not in place for the new school term from September 2022. The Council accepted fault for this error. When it became aware of the matter it acted to reinstate the solo transport until it could reassess Y’s needs. It also said it would review its systems to ensure the error did not reoccur. These were appropriate actions.
40. Where a council has assessed and accepted a duty to provide transport to an “eligible child”, it must provide the agreed transport arrangements. The Council agreed to provide the escorted solo transport to Y for the morning journey from home to school, and the evidence shows the Council believed this was necessary due to Y’s emotional difficulties. The evidence shows both its SEN transport service and its children’s social care teams believed an escort was necessary. In addition, the Council’s social care records indicate it did not consider it reasonable for Mrs X to act in place of an escort to take Y to school herself. Whilst the Council considered an escort was necessary, it was unable to recruit an escort until mid-November 2022. The Council also attempted to coordinate support for Y’s morning transport through its social care services and by coordinating with the school, but no escort or support staff could be found. This is service failure.
41. The Council’s website states that parents must provide transport where no escort is available. The Council also told Mrs X that it is a parent’s duty to ensure their child receives a suitable education. However, the law says that a parent has a defence when they do not take a child to school because a council has failed to organise suitable transport. The Council was unable to secure Y’s assessed transport as explained in point 40. Therefore, the Council should not have informed Mrs X it was her duty to take Y to school in the absence of education transport. This is fault. The Council’s policy and website do not reflect the Council’s obligations accurately and this is also fault.
42. The above faults meant Y missed a total of eight weeks of education she would otherwise have accessed, and the provision set out in her EHC plan.

Council complaints response

43. The Council responded at stage two of its complaints process 25 working days after Mrs X complained to it. This was not in line with the Council’s policy and is fault. The Council apologised for the delay at this stage, and this was appropriate to remedy any injustice this caused.
44. The Council later responded at stage three of its complaints process 57 working days after Mrs X requested a final response. This was not in line with the Council’s policy and is fault. The Council did not apologise or explain the reason for this delay.
45. The above faults caused Mrs X frustration and uncertainty about whether the Council was acting to resolve her complaints.

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Agreed action

46. Within one month of the final decision, the Council agreed to:
• write to Mrs X and apologise for both the delay in its stage three complaint response and for failing to provide suitable transport for Y between September to November 2022;
• pay Mrs X £700 for the benefit of Y’s education. This represents a loss of 8 weeks of education considering the date the home to school transport was available, school holidays, and the family holiday taken by Mrs X and Mr Z; and
• write to relevant SEN transport officers and complaint handling officers and remind them that, when the Council has failed to provide transport to an eligible child and the parent does not take the child to school, the parent has a defence in law and would not have failed to provide a suitable education. It should remind the officers it is therefore the Council’s duty to provide the agreed transport or arrange a suitable alternative.
47. Within six months of the final decision, the Council agreed to review its education transport policy and consider how it will arrange transport for eligible children when an escort is unavailable. The Council will consider its duty to provide the assessed transport, a parent’s defence in law if the transport is not provided and the parent does not take the child to school, and the Council’s duty to deliver the content of a child’s EHC plan if no transport can be arranged. It should update its policy and website to reflect the changes.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I ended my investigation. I found fault and made recommendations to remedy the injustice caused by the faults.

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Investigator's decision on behalf of the Ombudsman