Summary: Ms M complains the Council refused to provide school transport for her son, B, for the 2021 – 2022 school year. Based on the evidence seen, the third appeal panel to consider her request does not appear to have considered Ms M's appeal properly.

The complaint

1. Ms M complains the Council refused to provide school transport for her son, B, for the 2021 – 2022 school year.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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. Once 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 information provided by Ms M and information provided by the Council. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. Ms M’s son, B, started secondary school in September 2021. The school, an Academy, is just over four miles from Ms M’s home. The school has specialist Resourced Provision for a small number of students with additional needs due to autism. Places in the Resourced Provision are allocated by the Council to pupils with an Education, Health and Care (EHC) Plan.
7. Ms M chose the school because B had a diagnosis of ADHD and was undergoing an assessment for autism. She had asked the Council to carry out an EHC needs assessment with a view to issuing an EHC Plan. She wanted B to go to the school to avoid the need to change schools when, she hoped, the Council issued an EHC Plan naming the Resourced Provision. The head teacher agreed to admit B even though Ms M lives some distance from the school, further than the last child admitted during the general admissions round.
8. Ms M applied for school transport in April 2021.
9. Her application and subsequent appeal were unsuccessful.
10. Ms M complained to the Ombudsman. We upheld her complaint. Although B did not qualify for transport under the Council’s policy, we found the Council had not considered whether in the particular circumstances of the case it would be appropriate to use its discretion to provide transport outside its policy.
11. The Council agreed to arrange a fresh appeal.
12. Ms M’s second appeal was also unsuccessful.
13. Ms M complained to us again. We upheld her complaint again. We found the Council had not explained its decision adequately and so had not demonstrated it considered the appeal properly.
14. The Council agreed to arrange a fresh appeal.
15. Ms M’s third appeal was also unsuccessful.
16. Ms M complained to us again. B now has a diagnosis of autism and, following Ms M’s appeal to the SEND Tribunal, the Council has issued an EHC Plan which says B will attend the Resourced Provision at the school. The Council has provided school transport since September 2022 when it issued B’s Plan.
17. Ms M wants the Council to pay for transport for the 2021 – 2022 school year (before the Council issued B’s EHC Plan).

Home to school transport

18. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
19. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance (Education Act 1996, Schedule 35B)
20. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
21. The nearest 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.
22. Councils also have a power to make such school travel arrangements as they consider necessary for any pupil who is not an eligible pupil. (Education Act 1996, section 508C)

What are the issues?

23. B lives approximately four miles from the school, beyond the statutory walking distance of three miles for a child of his age.
24. It is common ground between Ms M and the Council that B had additional needs when Ms M chose the school and applied for transport in 2021. However, the Council’s position, as I understand it, was that any secondary school could meet B’s needs at the time. The Council declined to provide transport because B does not attend the nearest secondary school to his home.
25. Ms M disagrees. She set out very clearly the reasons she considers the school to be the nearest suitable school in her appeal(s). She has, in effect, been ‘proved right’ by the course of events: B now has an EHC Plan which says he must attend the Resourced Provision at the school. It has been a long process to reach this point, which has included an appeal to the SEND Tribunal.
26. For Ms M, it seems obvious the Council should now accept that she was right all along and pay her for transporting B to school in 2021 - 2022. Ms M says she had to give up her job to provide transport and exchange her car for a more fuel-efficient model to be able to transport B to school. She wants compensation.
27. However, we do not consider Ms M’s April 2021 transport application with the benefit of hindsight. My job is to check the third appeal properly considered Ms M’s April 2021 application based on her circumstances at the time.
28. The third appeal panel refused Ms M’s transport request because she had not chosen the nearest suitable school. The panel’s decision letter explains,

“The Panel have determined that there were a number of schools, based closer to the parent/carers home that could have potentially provided a support plan to meet [B]’s need at the time of application, however, these were not explored at the time. All of these three nearest schools could have potentially offered enhanced transition from Primary School to support into year 7 and SENCOs would work proactively with any child requiring additional support.”

29. In other words, the panel concluded any mainstream secondary school could meet the needs of a pupil with B’s profile at the time of Ms M’s transport application. There is no fault here.
30. The decision letter goes on to explain the appeal panel considered providing transport on a “discretionary basis as per the Ombudsman’s decision.” We found fault with the first appeal for failing to demonstrate the panel had considered its ‘discretion’ to provide transport outside the Council’s policy. The letter says,

“When considering “Discretionary Arrangements” we agreed that the preferential choice of [the school] did not meet the eligibility criteria of being the nearest appropriate and/or suitable school. The Panel have determined that there were a number of schools, based closer to the parent/carers home that could potentially have provided a support plan to meet [B]’s needs at the time of application, however, these were not explored at the time. With this in mind the Panel agreed not to award home to school transport on a discretionary basis.”

31. This appears to be a re-statement of the reasons already given for refusing Ms M’s appeal based on the Council’s policy. It does not show the Panel considered the reasons Ms M asked the Council to depart from its transport policy.

What is wrong with the third appeal?

32. In an earlier complaint, we found fault because a panel had not considered whether to use its discretion to depart from the Council’s transport policy. What does this mean? Councils have a duty to provide transport to pupils who meet certain criteria set out in law and government guidance, but they have a power to provide transport to any pupil who does not fulfil these requirements. When we say the Council should consider using its discretion, we mean the Council should consider exercising this power. What this means in practice is that the Council should consider any reasons given by the applicant for requesting transport that the Council has discounted as not meeting the requirements of the law, government guidance or its policy. The Council must balance the needs of the parent and child against the needs of the Council. If the Council decides the reasons do not justify providing transport, it should say why not.
33. I do not consider the Council has done this in Ms M’s third appeal.
34. In our previous decisions, we acknowledged that B was not an ‘eligible pupil’ as defined by the law and government guidance: while he lives beyond the statutory walking distance from the school, we accepted there are nearer schools that could have met his needs at the time of Ms M’s application. Ms M disagrees, but there are no grounds for us to question the Council’s decision on this point.
35. However, Ms M has explained why she chose the school even though it was not the closest. She has said that she chose the school because of the school’s expertise in autism and the Resourced Provision she wanted B to attend was based at the school. Although B did not have an EHC Plan at the time, Ms M had begun the application process and said the process was delayed because of the pandemic. She provided evidence about B’s needs. She explained she chose to enrol B to avoid an additional transition when, as she hoped, the school was named in B’s EHC Plan. The head teacher admitted B even though he lived further from the school than the last child admitted under the school’s oversubscription criteria.
36. The appeal panel did not give reasons for discounting these factors. While the Panel was entitled to conclude that any school could potentially meet B’s needs at the time, it does not appear to have considered whether B’s EHC needs assessment was, in fact, delayed because of the pandemic; whether the school, with its autism resourced provision, was the most appropriate school; the impact on B of having to move schools if he secured a place in the Resourced Provision; or why the head teacher admitted B even though he lived further from the last child admitted under the school’s oversubscription criteria.
37. It does not, therefore, appear the Council has properly considered whether to depart from its policy and provide transport. This is fault.

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Agreed action

38. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
39. The Ombudsman does not have the authority to decide whether the Council should have exercised its power to provide transport for B. Only the Council, or an appeal panel set up by the Council, can make this decision.
40. I recommend, therefore, the Council reconsiders Ms M’s application for transport for 2021 - 2022. The Council should pay particular attention to its power to provide transport in those cases that do not meet the criteria in legislation, government guidance and its policy. If the Council decides not to provide transport for 2021 – 2022, it should offer Ms M a fresh appeal. The Council, and any appeal panel, should give reasons for their decision to explain how the Council applied its policy and how it exercised its discretion (as I have explained above).
41. The Council should also consider whether it is necessary to produce guidance for transport officers and appeal panels to explain the concept of ‘discretion’ and to ensure future decisions are sound and properly recorded.
42. In a previous complaint, the Council agreed to make a substantial payment to acknowledge Ms M’s time and trouble pursuing her complaint and the avoidable uncertainty, anxiety and distress she had suffered. I recognise the Council was quick to arrange the last appeal. However, I recommend the Council make a further payment of £250 to recognise Ms M’s time and trouble pursuing an another complaint after once again receiving an inadequate decision.
43. The Council should provide us with evidence it has complied with the above actions. I recommend the Council completes the actions within one month of my final decision.

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Final decision

44. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman