Summary: Mr X complains the Council has not provided his daughter, Y, with home to school transport since September 2022. Mr X also complains about the parental mileage rate allocated for transporting his daughter to school. We have found fault by the Council for the delay in arranging suitable transport for Y, and failing to ensure she received a full-time education as set out in her Education and Health Care Plan. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Mr X complains the Council has not provided his daughter, Y, with home to school transport since September 2022. Mr X also complains about the parental mileage rate allocated for transporting his daughter to school. He says the rate the Council has offered is not enough.
2. Mr X says this has affected Y’s school attendance and therefore impacted delivery of Special Educational Needs (SEN) provision. He says transporting Y to school has impacted the family and caused significant distress and financial injustice.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault and we may recommend a remedy for the injustice caused. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ 1407)
5. 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

6. I considered the information provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered its response.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Arrangements for eligible children

8. 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)

SEN Transport - nearest suitable school

9. If only one school is named in a young person’s Education and Health Care (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.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided other relevant conditions are met.

The Council’s SEN Transport policy 2017/2018

10. This policy was in place at the time Mr X applied for school transport for Y.
11. The policy states that completion of an EHC Plan does not mean an automatic entitlement to travel assistance. A duty only arises if transport is referred to on a child’s EHC Plan or the Council requires a child to attend a school which is not within the statutory walking distance of the child’s home.
12. The Council will assist parents with travel assistance in accordance with its statutory duties where children have significant special educational needs, a disability or mobility restrictions that travel assistance is essential to access their specialist provision.
13. In assessing any application for travel assistance, eligibility will be based on the needs of the eligible child, accompanied as necessary by a parent and will not normally take into account work or other family commitments such as attendance of siblings at different schools.
14. Where the child lives further than the statutory walking distance between home and their specialist provision travel assistance will be offered.
15. Additionally, transport assistance will be provided where the pupil has an SEN/EHC Plan and:

• has been assessed as requiring transport assistance to access their specialist provision, and/or;
• the Council has determined and named the special provision in the statement as being the nearest available special provision that is able to meet the child’s needs, and/or;
• the child’s health needs are such that upon written medical advice, travel assistance is necessary to access their specialist provision.

16. Options that may be offered when travel assistance is agreed include:

• reimbursement of agreed public transport costs;
• supported travel training and use of public transport;
• payment of a personal budget at the Council’s standard rate for parents to transport their children to the special school; and
• travel assistance via the Council’s contracted transport providers with or without a passenger assistant.

Background

17. At the time of the complaint Mr X’s daughter, Y, was 11 years old. Y has Global Development Delay, significant speech and language delay and difficulties with social communication and interaction. In May 2020, Y was diagnosed with autism spectrum disorder (ASD).
18. Y has an EHCPlan which states that she has complex needs and details “various unwanted behaviours” such as, spitting, hitting, kicking, attempting to bite staff, not sitting down and running from adults. The Plan states the triggers for Y’s spitting are not immediately clear and “also happens outside of the learning context, both on transport to school and with parents when they have been in school with [Y]”
19. Y’s EHC Plan includes the following provision:

• literacy and numeracy support;
• developmentally appropriate curriculum with sensory activities;
• Speech and Language Therapy;
• Occupational Therapy;
• a dedicated teaching assistant;
• multidisciplinary positive behaviour support intervention in relation to spitting;
• fine motor skills programme;
• class group work; and
• use of Information and Communications Technology(ICT) and visual aids;

20. It was agreed that from September 2022, Y would attend School B. The shortest available walking route to the School from Y’s home was 11.0499 miles. The estimated journey time was between 40 minutes and one hour depending on traffic.

What happened

21. On 30 July 2022, the Council received an application from Mr X for travel assistance to School B. The Council agreed that Y was eligible for travel assistance.
22. Between September and mid-November, the Council carried out eight tender exercises with its framework of transport providers to secure the route. The Council said Y required solo travel and a strong personal assistant. The Council explained that Y had “challenging behaviour including frequent spitting” and protective personal equipment was recommended for staff and the vehicle. It said staff should have completed challenging behaviour and ASD training as a minimum. The Council did not receive a response from any provider.
23. The Council also approached a neighbouring Council to establish whether any of its transport providers could provide travel assistance for Y.
24. The Council told Mr X it could fund places at breakfast clubs for Y’s younger siblings so that Mr X could take Y to school. Mr X said the primary issue was the length of time it was taking transporting Y to and from school. He said this was impacting on his work schedule.
25. On 22 October, Mr X complained to the Council. He said instead of working alongside the family to assist in helping Y access full time education, the Council had always left the transport responsibility to the family. He said the Council’s SEN transport providers had refused to accept the tender due to challenges related to Y’s disability. Mr X said the Council should:

• contact Y’s previous schools transport providers to facilitate an arrangement for Y with some reasonable adjustments;
• contact other Councils for best practice regarding Y’s case;
• transport providers could allow parents to support Y on the first few trips to reassure Y she was safe; and
• pay the parents a reasonable mileage allowance that covers the cost of a taxi to School B;

Mr X said the Council’s offer of £10.00 for a one-hour journey was not practical as a taxi would cost £34.00.

26. On 23 November, the Council wrote to Mr X confirming transport arrangements for Y from 29 November. The Council said this provider would be in place for the next two academic years. The Council told Mr X that Y should be provided with a receptable for spitting and a parent to accompany Y for the first week of travel to help make the transition as smooth as possible. Mr X acknowledged receipt of the email.
27. On the same day, the Council responded to Mr X’s complaint. The Council explained it had a framework contract with a range of transport providers for home to school transport commissions, which had been appropriately vetted. The Council said it could not operate outside of this arrangement due to its procurement rules. The Council said Y’s details had been sent to all providers on its framework and as Mr X was aware providers had not been willing to accept the risks posed by Y’s presenting behaviours. It said it could not force independent transport operators to undertake work or sign contracts they do not want to undertake.
28. The Council confirmed that Mr X had accessed mileage allowance for the days on which he had transported Y to and from school for the period April to July 2022. It recognised that Mr X had not submitted a claim from September 2022 and invited him to do so. The Council also confirmed it had secured transport provision for Y from 29 November. It apologised for the delay in implementing the provision.
29. On 28 November, the transport provider met with Y and her family to discuss the transport arrangements.
30. The next day, School B contacted the Council and said that Y had arrived at school, but the Provider reported that after 40 minutes Y became distressed and kicked for the remainder of the journey. The provider informed the Council that it was cancelling the transport arrangements with immediate effect but would pick Y up after school that day. The provider completed an incident report and said that a receptable spitting had not been provided.
31. Mr X also contacted the Council and said he had offered to join the transport crew, but they said there was no need for him to accompany them. Mr X confirmed he did not provide a receptable for spitting because he was waiting for the school to send him a photograph of the one they used. Mr X said he explained this to the crew, but they seemed confident the trip would be okay and therefore he did not provide a temporary bucket.
32. Between December and April 2023, the Council carried out twelve tender exercises with its framework of transport providers to secure transport for Y. The Council did not receive a response from any provider.
33. In January 2023, School B contacted the Council requesting an update on ongoing transport issues which it said was affecting Y’s education. The School expressed concern about Y’s low attendance and said it was unable to work towards the outcomes and targets set out in Y’s EHC Plan. It confirmed that Y had been attending school once a week transported by her father. However, Mr X’s car had broken down which had added to the difficulty of Y attending school.
34. The Council responded to School B and said the parents were “not neglectfully focusing on [Y’s] educational needs and these circumstances [were] as a result of not securing transport, due to the spitting [Y presented] with and providers not wanting to take this on”. It said in the interim the focus was on how best to support the family to meet Y’s educational issues at home, pending the transportation issues being resolved. The Council asked the School how it was supporting Y’s parents with home learning.
35. Mr X responded to the Council and said he was still looking for SEN transport provision for Y. He said her educational needs including speech and language therapy could not be facilitated at home by the parents. He said School B has specialist teachers to meet Y’s educational needs. Mr X said the Council should pay a reasonable parental mileage rate so that he could take Y to school.
36. On 26 April, Mr X thanked School B for sending educational material home for Y. He confirmed this was the second time Y had received material from the School. Mr X explained the Council had not provided any resources to enable them to deliver the provision, either with the use of private tutors or not. Mr X said the Council was neglecting Y’s educational needs by not providing adequate transport and material resources to meet her educational needs as agreed in the EHC Plan.

The Council’s response to our enquiries

37. The Council said it proposed various options to the family, including providing transport for the younger siblings, funding places at breakfast and after school clubs for younger siblings and a carer to assist with Y when travelling. The family said these options would not address the issue of time spent transporting Y to School B. Mr X said they wished to continue pursuing transport provision for Y.
38. The Council confirmed that since the start of term in February 2023, Y had attended school for seven days. Y had attended school for one day a week transported by Mr X. School B said it has sent home learning packs for Y to complete however were not assured they were being accessed. When Y was in school, she received education and therapeutic input in line with her EHC Plan. The Council said School B had liaised with the family regarding the possibility of organising some home tutoring however the family were not in agreement with this approach. The Council has not provided any evidence to verify this.

Analysis

39. The Council accepted it had a duty to provide school transport for Y. While the Council was entitled to contract its transport service to transport providers, it remained responsible for ensuring Child Y was able to attend school and access the provision set out in her EHC Plan.
40. I acknowledge the difficulties the Council has had since September 2022 in trying to source transport for Y. There is no doubt the Council has tried to identify a suitable provider. However, regardless of this, it remained the Council’s duty to provide Y with suitable transport. I find the failure to provide transport provision since September 2021 amounts to a service failure, causing Y a significant injustice in terms of missed education and SEN provision.
41. The Council was aware that Y was only attending school one day per week for a few hours. Yet, I have seen no evidence the Council offered Y any alternative provision. Therefore, Y missed out on education provision suitable for her needs for an extended period, receiving a minimal amount of education and SEN provision from September 2022 to June 2023.
42. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 to £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as, the severity of the child’s SEN as set out in their EHC plan, any educational provision that was made during the period, whether additional provision can now remedy some or all the loss and whether the period concerned was a significant one for the child or young person.
43. In this case, I have taken into consideration that Y has significant needs in relation to her SEN which are clearly identified and accounted for in her EHC Plan. I have also considered that Y was transitioning to a new learning environment and was significantly isolated from her peers for over two terms. The EHC Plan stated that Y had made good progress in the previous academic year and in my view, she will not have maintained that progress due to the absent of any significant education. I also recognise that Y was on a reduced timetable for the first three weeks of the new academic year. I have made recommendations below to remedy the injustice caused to Y.
44. I have also considered the impact of Mr X. Mr X should not have had to drive Y to school and he experienced, distress and inconvenience in doing so. To remedy this injustice, I have made a recommendation below for a symbolic payment for Mr X. This is in addition to any parental mileage allowance Mr X has received or has yet to claim. I have reviewed the Council’s transport policy and found no fault in the way it decided the mileage allowance.

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Agreed action

45. Within one month of my final decision the Council will:
1. pay Mr X £2100 for the first term when Y did not receive education and SEN provision and support. This payment should be used for Y’s educational benefit;
2. pay Mr X £2400 for the second term when Y did not receive education and SEN provision and support. This payment should be used for Y’s educational benefit;
3. pay Mr X £1000 for the third term (until 2 June 2023) when Y did not receive education and SEN provision and support. This payment should be used for Y’s educational benefit; and
4. pay Mr X £300 for the injustice caused to him. This payment is in addition to any parental mileage allowance claimed or yet to be claimed by Mr X.
46. Within three months of my final decision the Council will provide additional therapy/provision to Y to address shortfalls in speech and language therapy and occupational therapy.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I have found fault by the Council causing an injustice to Y and Mr X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman