Summary: Ms X complained the Council failed to provide suitable school transport for her two children, Y and Z, between September and October 2022. There was no fault in the Council’s decision to appoint transport provider B. There was a delay in the Council’s response to one of Ms X’s concerns. The Council has already apologised for the delay.

The complaint

1. Ms X complained the Council failed to provide suitable school transport for her two children, Y and Z, between September and October 2022.
2. Ms X says the failure caused Y and Z to miss the education to which they were entitled, the content of their Education, Health, and Care plans, and their free school meals. Ms X says the matter caused her distress and impacted her financially.

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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. 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)
5. 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.
6. 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

7. I spoke with Ms X and considered information she provided.
8. I considered information provided by the Council.
9. I considered relevant law and statutory guidance.
10. Ms X and the Council had the opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Relevant law and guidance

School Transport

11. 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. ‘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)

12. 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)

Education, Health and Care plan (EHC) plan

13. 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.

The Council’s complaints process

14. The Council has a two-stage complaints process:
• Stage one is a local resolution. The Council will acknowledge the complaint within three working days and will send a response within 20 working days. If a further concern is raised that requires a stage one response, the Council will respond within ten working days.
• Stage two is an escalation and considered by a director or assistant director. The Council will tell the complainant whether their complaint will be considered at this stage within five working days. If the Council investigates, it will respond within 25 working days, or up to 65 working days for more complex cases.

What happened

15. Below is a summary of key information relating to this complaint. It is not a comprehensive overview of everything that happened.
16. Ms X has three children. Two of the children, Y and Z, have special educational needs (SEN), an EHC plan, and attend the same school.
17. In May 2022 Ms X applied for school transport for the children for September 2022. The Council’s records show Ms X requested Y and Z be sat together, have a chaperone and driver experienced in meeting the needs of children with SEND, and for the children to meet the chaperone and driver in advance to establish a relationship.
18. The Council placed the contract out for tender. The tender included a description of the children’s needs, the requirement for a passenger assistant who was disclosure and barring service (DBS) certified, and that the children would need to meet the driver and passenger assistant for a “meet and greet” before transport began.
19. In late August 2022 the Council awarded the contract to transport provider A. The Council sent Ms X a copy of the details of the award in early September 2022. The details included a list of the children’s likes and dislikes and signposted Ms X to the provider to organise a “meet and greet” session with the provider.
20. The week before the start of term transport provider A withdrew their bid for the transport contract due to difficulties sourcing a driver. The Council immediately awarded the contract to transport provider B and wrote to Ms X to inform her of the change, two working days before the start of the school term.
21. Ms X did not agree to transport being provided by provider B. She said she had safeguarding concerns about provider B and questioned their suitability. She told the Council the provider needed to be a specialist, non-smoking taxi service; and that her children required a passenger assistant with training in working with children who have SEN, be non-smoking and female only. The Council said provider B tried to communicate with Ms X about the transport, but Ms X refused. The Council said provider B withdrew because of Ms X refusing to work with them.
22. The Council responded four days later and told Ms X it was considering her concerns internally. Ms X responded and repeated her concerns about transport provider B. She told the Council she had taken the children to school on one occasion herself but was unable to do this every day due to the distance and because she did not have transport of her own.
23. Ms X wrote again to the Council. She said there was no transport in place and said the Council had a duty to organise transport that was not stressful for the child. Ms X wrote to the Council several times to request information about the matter in the subsequent days. The Council decided to consider Ms X’s comments under its formal complaints process.
24. Ms X wrote to her councillor and MP and maintained contact with the Council’s complaints team over the following weeks.
25. Three weeks later the Council wrote to Ms X and told her it had secured a new provider, transport provider C. Y and Z accessed the provider starting the following week.
26. Shortly after, the Council responded to Ms X’s formal complaint at stage one of its complaints process. It told her:
• the Council has a legal duty to provide suitable transport arrangements it considered necessary to facilitate transport from home to school;
• Y and Z were eligible for transport based on the distance to the school, not their SEN. It told Ms X the transport had to be “reasonably stress free”, not “non-stressful”;
• there had been limited time to organise a “meet and greet” at the start of term with provider A, which was compounded when the provider withdrew, and provider B was appointed. This left little time to organise the “meet and greet” to allow the children and Ms X to get to know the driver and passenger assistant;
• when transport provider B was put in place, Ms X raised concerns about their suitability, and this resulted in the children not attending school. It acknowledged Ms X took the children to school when she was able;
• the Council follows a procurement process to ensure compliance with regulations and the law. It said it could offer reimbursement of parent’s transport costs at 45p per mile at its discretion;
• it had written to Ms X about how transport provider C could meet the transport needs of the children;
• it had received feedback that Y and Z had successfully travelled with transport provider C; and
• apologised for the upset caused to Ms X and the children at the start of term.
27. Ms X remained dissatisfied with the Council’s response and requested clarification about its stage one response including information about the transport arrangements, how the Council had decided what provision was necessary, and for information the Council held on file about the matter. She also raised concerns that two drivers and three passenger assistants had been sent for the children without notice since provider C was awarded the contract.
28. The Council responded nine working days later as an additional stage one response. It said it would reimburse her transport costs if she could provide evidence for this. It said under its terms and conditions with transport providers there is a stipulation for a reasonable continuity of staff but said it could not always guarantee this because of unforeseen circumstances (e.g., staff illness). It acknowledged there was a change in driver and passenger assistant from transport provider C due to staffing difficulties but said the driver now in place was permanent and the current passenger assistant would be replaced with a permanent member of staff when they could be sourced.
29. Ms X responded to the Council with details of eight days when she transported the children to school herself. She requested reimbursement for the hire car and the mileage. She said she remained dissatisfied and would escalate her complaint to stage two soon.
30. The Council responded 32 working days later. It offered to pay Ms X the mileage for the eight days she transported the children to school. It apologised for the delay in responding to her request.
31. Ms X remained dissatisfied and requested an escalation of her complaint to stage two. She said she had paid for the hire car, plus fuel, plus her time and wished to be reimbursed for these.
32. The Council responded the next day at stage two of its complaints process and said it believed it had considered the matter appropriately so would not comment further.
33. Ms X remained dissatisfied with the Council’s response and brought her complaint to us. During the investigation, Ms X said the Council’s original application form did not have enough space to allow her to provide details about her children’s needs.
34. In response to my enquiries, the Council said:
• it considered transport provider B was suitable and could meet Y and Z’s needs in line with the information provided by Ms X. It found no reason provider B would be unsuitable;
• its policy says no driver or passenger would smoke, and provider B was a longstanding approved supplier with years of transport experience. All drivers and passenger assistants have DBS checks and passenger assistants are recorded on the Council’s systems;
• passenger assistants are required to undertake online safeguarding training in the first instance, which is updated through face-to-face training in due course. The training includes support for children with SEND;
• it considered Y and Z’s EHC plans, information provided during the application process and these needs were expressed during the tendering process;
• it reconsidered appointing provider A in early September 2022, but was unable to re-contract provider A for the route because it would have negatively impacted on another child; and
• as Ms X declined to work with provider B, the provider withdrew, and the Council had to re-tender. The Council re-tendered including the additional information provided by Ms X before it awarded provider C.

My findings

School transport

35. The Council accepted a duty to provide transport to Y and Z as eligible children based on the distance to the school named in their EHC plan from their home. Therefore, it was obligated to provide transport it considered suitable to that school.
36. The evidence shows the Council considered Y and Z’s needs for the transport it organised. It provided sufficient information for the tendering process and awarded the contract based on the bids it received. There is no evidence of fault in the Council’s procurement process when it appointed provider A and later provider B. It properly considered reinstating provider A when Ms X raised her view that provider B was unsuitable but could not do so because of the impact on another child. This is not fault.
37. Ms X said the original application form did not have sufficient space to allow her to explain all the children’s needs. However, the evidence shows Ms X provided information to the Council she considered most important. If Ms X had concerns at the time of the original application about additional requirements, she could have contacted the Council to request additional information be considered. The Council conducted its tendering process based on the information it had available and awarded provider B on that basis. This is not fault.
38. Ms X disagreed with the Council’s decision to name provider B. She informed the Council of her concerns about safeguarding and smoking. The evidence shows the Council considered Ms X’s comments but decided provider B remained suitable. The Council found no evidence to substantiate Ms X’s concerns about provider B’s suitability. It explained all passenger assistants are provided with safeguarding training which includes information about children with SEND and therefore considered the arrangements suitable. It is for the Council to decide what transport arrangements are suitable, and if there is no fault in the process, we cannot question the outcome. I found no fault in the Council’s decision-making regarding provider B.

School attendance and missed provision

39. The children did not attend school because Ms X disagreed with the Council’s named transport provider, provider B. She says this caused Y and Z to miss both the education they were entitled to and the content of their EHC plans aside from the eight days she transported them.
40. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether an individual disagrees with the decision the organisation made.
41. The Council considered provider B remained suitable. There was no fault in the decision-making process to name provider B. The reason the transport was not available was because Ms X refused to work with the provider. Therefore, the Council was not at fault for Y and Z not receiving education during that time. It offered to pay Ms X for the mileage Mrs X incurred as a goodwill gesture when she transported the children to school herself, and this is an appropriate action.

Complaint response

42. There was a delay in the Council’s response to Ms X’s request for reimbursement of her hire car and mileage for the eight days she transported the children. The Council responded 32 working days after Ms X’s email. The Council apologised to Ms X for the delay. This is sufficient to remedy any injustice caused by the delay.

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Final decision

43. I ended the investigation. I found fault and the Council has already remedied the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman