Summary: Ms X complained the Council did not backdate the award of travel assistance to when her son started at the school he now attends. She said this caused her financial hardship as she had the cost of driving him to school every day. There was fault by the Council. The Council will reconsider the matter. That is the appropriate way forward.

The complaint

1. I refer to the complainant as Ms X. Her son, who I refer to as B, has special educational needs. She complained the Council did not backdate the award of travel assistance to when X started at the school he now attends. She says this caused her financial hardship as she had the cost of driving him to school every day.

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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)

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How I considered this complaint

4. I considered the complaint and documents provided by Ms X and spoke to her I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Ms X and the Council and considered their comments.
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Summary of the relevant legal and administrative provisions

6. Local authorities 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. ‘Eligible children’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)
7. 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. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.)
8. The Council has a policy on the provision of travel assistance for children. It says statutory guidance states that local authorities are required to make transport arrangements for all children who cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their SEND (special educational needs). These applications should be assessed on an individual basis to identify the child’s particular transport requirements. It goes on to say:

“The following gateway criteria must be met for an application for SEND travel assistance to be considered.

• The child lives in East Sussex.

• The child has a current EHCP.

• The school or education setting is the nearest suitable school to the child’s home address and named in the child’s EHCP.”

What happened

9. Ms X’s son, B, has an Education, Health and Care plan (EHC plan). It does not name a school and refers to the placement as at a special school. B started at School Y in mid-November 2022 when he was 7. The school is about 14 miles from the family home.
10. Ms X applied for assistance with transport. The Council refused because it was not in accordance with the policy as the school was not named on the EHC plan. Ms X appealed against the decision. The appeal was considered by an officer panel in November which confirmed the decision. Ms X made a further appeal which was considered by a panel of councillors in January. The panel upheld the appeal and awarded assistance with transport. It did so on the basis of the particular circumstances. It commented that the original decision was correct as it had correctly applied the policy which meant that as School Y was not named in the EHC plan then transport assistance would not be awarded. It said that considering the phased/transition start of B’s start at school meant that it should not backdate the payment.

Analysis

11. The Council should follow its policy when making decisions. But it should also be able to consider individual circumstances and ensure it can exercise its discretion where it is warranted in an individual case. Here the first decision and the first review followed the Council’s policy not to award transport assistance because it was not in accordance with the policy. When the appeal was considered at the second stage the panel agreed to award transport. The Council did not, therefore, fetter its discretion and did consider Ms X’s circumstances.
12. The issue that remained was that the appeal did not backdate the award. There was no clear explanation of the reason for that part of the decision. That is fault. Ms X said that although the start at school was phased, B was attending every day so she was transporting him there daily. Given the lack of clear explanation of the decision to refuse to backdate the award Ms X has uncertainty about whether the decision was sound. The Council agreed the reasoning was not clear and will refer the matter back to the panel for further consideration. That remedies the injustice caused to Ms X.

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Agreed action

13. The Discretionary Transport Appeal Panel will reconsider whether the award should be backdated. It should do so within one month of the final decision. If the decision is to backdate the award the Council should consider making a modest payment to Ms X to reflect the delay in coming to that decision.
14. The Council should provide us with evidence it has complied with the above actions.

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Final decision

15. There was fault by the Council.

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Investigator's decision on behalf of the Ombudsman