Summary: Ms X complained that the Council changed her vulnerable child’s school transport arrangements without warning. Ms X said this caused her child unnecessary distress, including panic attacks. She said her child has not been able to leave the house since, because of the trauma caused. This has led to both Ms X and her child being isolated. Ms X also said it caused her unnecessary distress and uncertainty. We find the Council at fault, and this caused injustice. The Council will apologise, make a payment to Ms X, and make improvements to its service.

The complaint

1. The complainant, who I refer to here as Ms X, complained that the Council changed her child’s school transport arrangements without warning. She said the Council failed to consider her child’s disabilities, and its duties under the Equality Act, when it decided to add another child to the route.
2. Ms X said this caused her child unnecessary distress, including panic attacks. She said it has had a significant and disproportionate effect on her child. She said her child has not been able to leave the house since, let alone travel to school, because of the trauma caused. This has led to both Ms X and her child being isolated. Ms X also said it caused her unnecessary distress and uncertainty.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered the information and documents provided by Ms X and the Council. I spoke to Ms X about her complaint. Ms X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments and further information received before I reached a final decision.
7. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies (updated).

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What I found

What should have happened

School transport

8. Councils provide transport for certain children to get them to and from school.
9. In July 2014, the Department for Education issued statutory guidance for councils: ‘Home to school travel and transport guidance’. This says:

“For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.”

10. In March 2017, the Ombudsman published a focus report on this issue called ‘All on board? Navigating school transport issues’. This stresses:

“… the importance of getting the following right in order to avoid findings of fault:

• for children with special educational needs and disability, ensure not just their mobility but any health and safety difficulties associated with their special educational needs or disability are considered.”

The Equality Act

11. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. Organisations carrying out public functions cannot discriminate on any of the nine protected characteristics listed in the Equality Act 2010 and to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
12. The ‘protected characteristics' referred to in the Act include disability.
13. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.

What happened

14. Ms X’s child, B, has disabilities that mean they qualify for school transport.
15. In 2020, B started using a taxi provided by the Council to transport them to and from school.
16. In summer 2022, the Council added another child to the taxi. The Council did not inform Ms X before this change.
17. Ms X complained.
18. In its complaint responses, the Council said it took information about B’s needs from the transport referral form. Ms X wrote on that form, “Routine changes cause distress/refusal will need consistent driver/personal assistant”. The Council said Ms X’s words suggested that the only change that would affect B would be a change of driver or personal assistant. The Council said the form did not mention other children.
19. The Council said its normal practice is to add or remove children from vehicles without consulting parents. This is unless the transport referral form clearly says that child cannot travel with other students, or that the Council needs to communicate with a parent before any changes are made.
20. The Council said that, because Ms X’s form did not say B could not travel with other children, it was not unreasonable for it to add another child to the taxi. The Council said it appreciated that adding another child to B’s taxi caused them distress, but it said it would not have been aware of this.
21. The Council said it was not evident that adding another child would cause a problem. It said there was no reason to suspect that adding another child would cause any problems.
22. The Council agreed that the issue of how to transport B to school was still unresolved. The Council said it would apologise that resolving the transport issue was not actioned more quickly.
23. Ms X then brought her complaint to the Ombudsman.

Analysis

24. Ms X said she filled in the transport referral form before B got transport to school. She said she could not possibly have been expected to be able to anticipate every single eventuality regarding B’s transport. She said if she had been less specific on the form, and not said B “will need consistent driver/personal assistant” after “Routine changes cause distress/refusal”, then perhaps the Council would have asked her before adding another child to the route.
25. The Council told the Ombudsman it presumed that Ms X’s sentence – “Routine changes cause distress/refusal will need consistent driver/personal assistant” – related only to changes in drivers or personal assistants. I find this is a very narrow view and misses the point about the impact on B of a change in routine.
26. Further to this, the Council should have not made any presumptions. If the Council had any questions about whether or not adding another child to the route would affect B, it should have asked Ms X first. The Council clearly had some uncertainty otherwise there would have been no need to make any presumptions. There was time for the Council to have contacted Ms X in advance of the child being added to B’s taxi.
27. It seems clear to me Ms X’s sentence says any changes to B’s routine will cause distress and/or refusal. I do not agree with the Council that the addition to the sentence - that B will need consistent drivers and personal assistants – means any other changes to the routine would be acceptable.
28. When deciding on how to transport the other child, the Council said it felt there would be no issue adding them to B’s taxi. The Council acknowledged this was not actually the case, with the benefit of hindsight and further information from Ms X (which I find the Council could have sought before the child was added).
29. The Council said if it knows certain children have potential issues with another child sharing transport, it will notify parents of changes to transport routines. I find, therefore, that if the Council had identified that a change to B’s routine would negatively affect B, it would have notified Ms X. This would have avoided the severe impact that adding the other child to the taxi had on B.
30. As I have said above, the statutory guidance says that for an arrangement to be suitable, it must be safe and reasonably stress free. I find the Council adding another child to B’s taxi without consulting Ms X meant the arrangement was not suitable: it was not safe or reasonably stress free for B.
31. The Ombudsman’s focus report, referred to above, says councils should consider health and safety difficulties associated with children’s special educational needs or disabilities, as well as their mobility. I find that the Council did not consider the health and safety difficulties associated with B’s disabilities.
32. For these reasons, I find the Council at fault. This fault caused B injustice in that it caused severe, ongoing, and unnecessary distress. I find the fault caused Ms X unnecessary distress and uncertainty.
33. I note that the Council has repeatedly said parents need to tell it if there are any changes in children’s needs. This is irrelevant in this case: B’s needs did not change.
34. I have considered the explanatory notes that the Council sent Ms X to help her fill out the transport referral form. Section two of this form is where the parent says how tall the child is and what their difficulties are. The explanatory notes only mention the child’s height. There is nothing in the notes to help parents fill out the section on their child’s difficulties. And it is this section that the Council relied on in this case.
35. In its complaint responses to Ms X, the Council said:

“Our normal practise is that students would be added and removed from vehicles without consultation with parents unless the transport referral form clearly states that a student cannot travel with other students or communication with a parent needs to happen before any changes are made.”

36. This is not written anywhere in the explanatory notes. I find the Council should make sure parents are clear what the Council’s normal practice is. Had this information been in the explanatory notes, Ms X would have known to make this clear.

Equality Act

37. The Council made presumptions about what would or would not affect B, using a very narrow view of Ms X’s words. I find the Council did not consider what the words actually meant for B, and did not seek clarity or confirmation from Ms X. This caused severe, unnecessary, and ongoing distress to B.
38. For these reasons, I find the Council failed to have due regard to its duties under the Equality Act.

The Council’s apology

39. In the Council’s complaint responses, it said an agreed action was:

“That an apology is issued to [Ms X] that resolving the transport issue was not actioned more quickly.”

40. The Council’s apology letter says:

“I am very sorry to hear of your [child]’s distress when the additional child was added onto the route. Whilst I appreciate the difficulties that this caused, officers could not have foreseen that this would be the case as there was no indication on your transport response form to indicate that an additional child would be a problem. It is the responsibility of parents to ensure that they inform the county council of any changes to their child’s needs.”

41. This is not a meaningful or effective apology for two reasons:
42. Firstly, the apology was meant to be that resolving the transport issue was not actioned more quickly. The apology does not mention this.
43. Secondly, the apology places blame on Ms X.
44. As we set out in our published guidance on remedies, not making an effective apology:

“distances the organisation from what went wrong, gives no confidence it accepts it should have done things differently or has learnt so the same mistakes will not happen again. We will not accept such apologies as adequate remedy for injustice.”

45. I find the Council has not apologised for what it said it would apologise for.

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Agreed action

46. Within four weeks of this decision, the Council has agreed to apologise in writing to Ms X:
1. for the unnecessary and severe distress caused to B, and the unnecessary distress and uncertainty caused to Ms X; and,
2. that resolving the transport issue was not actioned more quickly (which the apology letter should have said but failed to).
47. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making this apology.
48. Also within four weeks of this decision, the Council has agreed to make a payment to Ms X of £1300. This is made up as follows:
• £1000 for the distress caused to B. Our guidance on remedies sets out a usual maximum of £500 for distress. However, we can propose larger amounts where the distress has been severe and/or the person affected is vulnerable. In this case, B’s disabilities mean they were severely distressed by the fault. This includes them having panic attacks. Mrs X said B has not been able to leave the house since, let alone travel to school, because of the trauma caused. I find the level of distress caused, as well as B’s vulnerability, are exceptional reasons to step outside the usual maximum amount. I find the amount proposed is a proportionate and appropriate amount, given these factors; and,
• £300 for the unnecessary distress and uncertainty caused to Ms X.
49. Within three months of this decision, the Council has agreed to review its explanatory notes that are sent to parents with the transport referral form. I recommend the notes on section two make it clear to parents that the Council’s normal practice is to add and remove students from vehicles without consultation with parents.
50. Also within three months of this decision, the Council has agreed to remind staff that they must not make presumptions about what may or may not affect a child. If there is any doubt at all, they must contact the parent/guardian for clarity or confirmation.
51. Also within three months of this decision, the Council has agreed to share a copy of this decision with relevant staff and management, and discuss it at a team meeting or relevant meeting of staff.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I find the Council at fault, and this caused injustice. The Council will apologise, make a payment, and improve its service.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman