Summary: There was fault in the way the Council reconsidered a transport application made on the grounds of special educational needs / mobility need following a previous Ombudsman decision. This was a repeat of the previous fault and represents non-compliance with an Ombudsman remedy. The complaint is upheld. The Council will apologise, make a further remedy payment, seek further evidence (including carrying out a face-to-face assessment if necessary) and make a fresh decision.

The complaint

1. Mr X complains:
• The Council failed to implement a remedy in the way agreed with the Ombudsman in a previous investigation.
• The Council failed to assess if his daughter could walk to school (accompanied if necessary) and refused free home to school transport.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I have considered:
• Previous decision by the Ombudsman recommending the Council retake its transport decision in Mr X’s case.
• The Council’s new decision.
• Supporting evidence relied on by the Council.
• Mr X’s complaint / appeal about the new decision.
6. I have considered relevant law and guidance including:
• Education Act 1996
• Home to School Travel and Transport Statutory Guidance
• The Ombudsman's guidance:
1. 'All aboard? Navigating School Transport Issues' (March 2017)
2. Guidance on Remedies
3. Our Manual for Council Link Officers.
7. 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.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law and relevant guidance

9. Section 508B of the Education Act 1996 ('The Act') says councils must provide free school transport to eligible children. The term 'eligible' means children of compulsory school age who meet certain criteria as set out in Schedule 35B of the Act.
10. ‘Eligible’ children fall into four categories:
• Children with special educational needs (SEN) or a mobility difficulty who cannot reasonably be expected to walk to school even though the school is within the statutory walking distance.
• Children whose route to school is unsafe.
• Children who live outside the statutory walking distance to school (currently 2 miles of under 8 years and 3 miles if between 8-16 years).
• Children from some low income families.
11. Councils also have discretion under s.508C of the Act to make provision for non-eligible children where they consider it 'necessary' to facilitate the child's attendance at school. A common situation where this may arise is where a child has a disabled parent.
12. The Government has issued statutory guidance 'Home to School travel and transport' for local authorities ('the Guidance'). Councils must have regard to the Guidance when carrying out their duties. This means Councils can depart from the Guidance, but if they do, they must have a good reason for doing so.
13. The Guidance says eligibility under SEN / mobility grounds should 'be assessed on an individual basis to identify their particular travel requirements' and that the statutory walking distance is not relevant for children applying on these grounds.
14. If the child can physically walk the distance but is unsafe to do so unaccompanied, the Council must consider:
• whether the child could reasonably be expected to walk if accompanied and, if so,
• whether the child's parent can reasonably be expected to accompany the child.
15. When considering whether a child's parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.

Council’s policy on travel support to access education for children with special educational needs (SEN)

16. The Council’s policy for children with SEN says travel support may be considered using supporting written evidence from a range of sources for example, education or health professionals, parents or other relevant professionals. The policy provides a non-exhaustive list of conditions which may qualify for support and includes severe behavioural emotional and / or social difficulties in comparison to other young people of their age.
17. The policy also sets out examples of other exceptional circumstances when transport support may be offered even where a child is not an ‘eligible’ child, for example parents with medical needs.
18. The policy says when an application is received an initial evaluation will determine whether transport support is likely to be approved. If an application does not contain enough information to complete the initial evaluation, it will be returned to the parent/young person.
19. After initial evaluation, the next stage is for a full assessment of eligibility. ‘This stage will include the gathering and evaluation of written evidence and parental circumstances. It will usually include consideration with the school/college concerned, caseworkers and any other relevant specialists and the parent/carer/young person’. At this stage the application with either be declined or forwarded for a risk assessment, including a home visit, ‘to determine the needs of the child/young person including their physical, medical, health and behavioural information’.

Ombudsman’s previous decision

20. Mr X previously complained to us about the way the Council considered his transport application for his daughter who has SEN. Mr X lives within the statutory walking distance to his daughter’s school and applied for free transport on the basis:
• His daughter could not walk the distance required due to SEN / mobility reasons,
• His wife could not accompany his daughter to school due to medical conditions.
21. We upheld his complaint and found:
• It is for the Council to determine if a child is eligible, therefore the onus is on the Council to determine whether SEN, disability or mobility problems mean it is not reasonable to expect a child to walk to a school within statutory walking distance.
• The Council had not followed:
1. the Guidance that says ‘Eligibility for such children is to be assessed on an individual basis to identify their particular transport requirements’, or
2. its own policy to seek evidence from specialists, the family and to carry out a risk assessment, including a home visit if required (because other evidence was inconclusive)
• The Council had not carried out an individual assessment of how Mr X’s daughter’s learning disability and behaviour difficulties impacted on her ability to walk. There was no gathering of evidence and no home visit.
• The Council’s fault cast doubt on the decision the Council reached.
22. The Council accepted our findings and agreed the following remedy to Mr X’s original complaint:
• The Council would seek evidence about Mr X’s daughter’s ability to walk to school, accompanied or unaccompanied, from parents and relevant professionals (for example mental health services, her school etc).
• The Council would review the application and make a fresh decision and if the decision was not in Mr X’s favour explain:
1. How the Council assessed Mr X’s daughter’s ability to walk, accompanied or unaccompanied, referring to evidence gathered or face-to-face assessments undertaken.
2. How the Council decided it is reasonable to expect a parent to walk with their child to and from school.
• The Council would provide new appeal rights to stage one and two of the transport appeal process.
• The Council would offer a financial remedy if it overturned its previous refusal of transport.
• The Council would make a time and trouble / distress payment.
• The Council would arrange refresher training for staff.

Reconsideration following Ombudsman decision

23. The Council sought evidence from the school only and relied on previous information submitted by parents. It did not give Mr X an opportunity to submit more evidence or contact other professionals.
24. The evidence from the school’s headteacher said they had not seen Mr X’s daughter ‘walk a distance as long as the one which would take her from home to school so I unable to accurately comment on her ability to do this’. The school did go on to detail sensory difficulties including a dislike of noisy or busy environments which caused Mr X’s daughter anxiety and distress, behavioural difficulties, concerns about her ability to follow adult direction when anxious or distressed, and concerns about safety if Ms X’s daughter had to walk to school.
25. The Council refused Mr X’s application on reconsideration on the basis ‘we believe she can reasonably be expected to walk the 2.1 miles to school given appropriate adult support. We believe that parents are able to make reasonable adjustments to ensure that one or other are available to support’.
26. The decision letter did not set out why the Council believed the child could walk 2.1 miles by reference to the concerns raised about her behaviour, anxiety or sensory needs. The decision letter did not explain why parents could accompany her or what reasonable adjustments it was referring to.
27. Mr X submitted an appeal, but also complained to the Ombudsman the Council had not followed the remedy it had agreed with us. He said:
• The Council did not contact him to seek evidence as set out in our previous remedy.
• The Council had not carried out the correct risk assessment whether his daughter could walk to school.
• The Council had not taken account of the evidence from the school.
• The Council had not explained why it believed parents could accompany their child to school when:
1. he worked away from home
2. his wife had medical conditions that meant she could not walk the required distance
3. his daughter had missed school on 41 occasions of which 30 were due to a parent being unable to accompany her to school.
• The Council would not accept medical prescriptions of evidence of his wife’s inability to walk and said it would only accept evidence if she received benefits for her medical conditions.

Analysis

Fault

28. The Council failed to give Mr X an opportunity to provide further evidence despite agreeing this with us as part of the remedy actions in the previous investigation. This was fault and non-compliance with an Ombudsman remedy.
29. The school evidence stated it was not able to accurately comment on whether Mr X’s daughter could walk 2.1 miles to school. This is not evidence Mr X’s daughter could walk the required distance. A council can only refuse transport on SEN/mobility grounds if it is satisfied the child can walk the distance. The Council had no such evidence, it only had evidence from a headteacher who said they could not give a view.
30. The Council has again failed to carry out an individual assessment of Mr X’s daughter’s transport requirements and failed to provide an adequate explanation for its decision. This is a repeat of the fault we found in our original investigation and non-compliance with an Ombudsman remedy.

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Agreed action

Within four weeks of my final decision

31. The Council will reconsider the transport application at first instance again in line with the remedy it agreed with the Ombudsman including:
• Giving Mr X an opportunity to put in new evidence
• Seeking advice from other agencies or professionals
• If no agency is able to give a view on whether Mr X’s daughter can walk 2.1 miles it will carry out a face to face assessment
• Providing a decision which explains, with reference to the evidence gathered, and representations made by Mr X, how it has reached its decision. For example, explaining what evidence it has relied on or what weight it had given evidence.
• If the decision is that Mr X’s daughter can walk 2.1 miles but only if accompanied, it will explain why it considers it is reasonably practicable for Mr and / or Mrs X to accompany their daughter.
32. The Council will provide new appeal rights to stage one and two, as previously agreed with the Ombudsman.
33. The decision maker and appeal officers / panel members must not have had prior involvement in the case.
34. The Council will apologise and pay Mr X a further payment of £100 to acknowledge his time, trouble and frustration at having to bring the matter back to the Ombudsman for a second time. This is in addition to the financial remedies agreed in our previous decision.
35. The Council will remind all officers of the importance of complying with remedies agreed with the Ombudsman.
36. The Council will provide us with evidence it has complied with the above actions as well as any outstanding elements from the remedy agreed in our previous decision.

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Final decision

37. I have completed my investigation. There was fault in the way the Council reconsidered a transport application in that the Council failed to carry out an individual assessment of the child’s needs when an application was made on the grounds of SEN/mobility needs. This was a repeat of previous fault and represents non-compliance with a previous Ombudsman remedy. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman