Summary: There was fault by the Council in imposing a personal travel budget on a parent of an ‘eligible’ child without their consent when the Council could not recruit a passenger assistant. The appeal panel also failed to consider the relevant law. The inability to provide a passenger assistant for several months was service failure. The Council will apologise, make a symbolic payment for inconvenience and distress, and carry out service improvements.

The complaint

1. Mrs X complains the Council has not provided suitable transport arrangements under its home to school transport duty.
2. Mrs X also complains about the way her appeal was considered.
3. Mrs X says because of the alleged fault, her child has missed out on school transport, and relatives have had to step in to provide transport which was inconvenient and time consuming.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
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 have considered information provided by Mrs X and the Council.
8. I have considered relevant law and guidance including:
• Education Act 1996 (‘The Act’)
• Department for Education ‘Home to School Transport Guidance’ (‘The Guidance’) (2014).
• Updated Department for Education ‘Home to School Transport Guidance’ issued June 2023.
9. 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.
10. Mrs 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

11. Section 508B Education Act 1996 says for ‘eligible’ children, councils must make such travel arrangements as they consider necessary to secure that ‘suitable’ home to school travel arrangements are made to facilitate attend the child’s attendance at their relevant educational establishment, and that these arrangements are provided free of charge.
12. For arrangements to be ‘suitable’, they must be safe and reasonably stress free, to enable the eligible child to arrive at school ready for a day of study. (Department of Education, 2014, Home to school travel and transport guidance)
13. The issue of non-stressful transport was considered in R V Hereford and Worcester CC ex p P [1992] which found the obligation on councils is to make such transport arrangements as they consider necessary for a child to reach school ‘without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer, just as it must be to make such arrangements as it considers necessary for him to travel in safety and in reasonable comfort’. The courts have found it is primarily for the local authority to decide what is necessary. (R (on the application of M) v London Borough of Hounslow (2013))
14. The Department for Education’s statutory guidance was updated recently. The 2023 guidance says councils must ensure the travel arrangements take account of the needs of the child concerned. Some children will need the support of a passenger assistant.
15. The statutory guidance says councils should have both a complaint and an appeals procedure for parents to follow should they have cause for complaint about the service or wish to appeal about eligibility for travel support or about the travel arrangements proposed. It says appeals should have two stages: Stage one conducted by a senior officer and stage two by an appeal panel independent of the process to date. The appeal panel should consider written and verbal representations from both parents and officers involved.
16. The Education Act says:
• Home to school travel arrangements in relation to an eligible child are those in both directions between the child’s home and relevant educational establishment (s.508B(3))
• “Travel arrangements” in relation to an eligible child include (s.508B(4):
1. arrangements for the provision of transport, and
2. any of the following only if they are made with the consent of a parent of the child:
1. an escort to accompany the child,
2. payment of the whole or any part of a person’s reasonable travelling expenses,
3. payment of allowances in respect of the use of particular modes of transport.
• “Travel arrangements” in relation to an eligible child include arrangements of any description made by the parent of the child only if those arrangements are made with the parent voluntarily (s.508B(5)).
• “Travel arrangements” do not comprise or include arrangements which give rise to additional costs and do not include appropriate protections against those costs (s.508B(6)).

Council’s transport policy

17. The Council’s transport policy for children of compulsory school age says applications for a taxi or specialist transportation will be considered initially by the Service Manager with responsibility for home to school transport and then, if necessary, by the Appeal Panel.
18. The home to school transport policy for children of compulsory school age makes no reference to the option of a personal transport budget.

Relevant factual background

19. Mrs X’s child was in receipt of home to school transport provided by the Council under s.508B. It is not disputed that Mrs X’s child is an ‘eligible’ child and entitled to free home to school transport.
20. The method of transport was a single use taxi with passenger assistant. The journey time is about 45 minutes.
21. Another child was then added to the taxi in early 2023. This was not successful, for either child. Mrs X’s child started to refuse to go to school because of the shared taxi.
22. The Council reviewed the situation and agreed a single use taxi was required and reinstated this in the mornings. However, the Council could not recruit a passenger assistant for the return journey for Mrs X’s child. Mrs X’s mother had to start collecting the child from school. This meant taking a younger sibling on the journey as well, so the sibling had to leave nursery early.
23. Mrs X advised the Council this was not a long-term solution as her mother was struggling with doing this long journey daily. Mrs X’s younger child is starting school in September 2023 and Mrs X’s mother will need to collect the younger child from school, so cannot also collect the older child from a school 45 minutes away. Mrs X says there is an after-school club at the sibling’s school, but this is currently full. After-school childcare would cost extra, and Mrs X has concerns whether a longer school day is suitable for her younger child who is awaiting investigation for autism.
24. Mrs X says she and her husband both work fulltime and cannot assist with home to school transport.
25. Mrs X was advised by the Council she needed to appeal the decision not to provide a single use taxi with passenger assistant in the afternoons, which she did. I have not seen a copy of the formal stage 1 decision but have seen emails referring to the decision reached. The Council decided as it could not provide the service needed (a passenger assistant) it would offer Mrs X a personal travel budget which is a mileage rate for her mother to drive the child in the afternoons. Mrs X’s child was however also put on a waiting list for when a passenger assistant was recruited.
26. Mrs X was not happy with this decision. The family did not want a personal travel budget as they could not provide someone to drive the child home each day. Mrs X was advised she needed to appeal the decision to Stage 2.
27. Correspondence between the Council and Mrs X’s Member of Parliament stated Mrs X ‘absolutely can have a single taxi to and from school…however at this time we are only able to provide a passenger assistant for the morning journey. We do not have any resource available for an afternoon passenger attendant – hence the exploration of other options’.
28. Mrs X also complained about the decision to change transport arrangements at short notice which led to the sharing of the taxi. Mrs X said there was no risk assessment made about how alternative arrangements would impact her child.
29. The Council responded to the complaint in April 2023. It said the original passenger assistant wanted to work more hours and so was moved to a different route to allow for this. As this happened over the Christmas period parents were not given notice of the change. This part of the complaint was upheld. The Council did not uphold the complaint about the risk assessment as it said it held evidence Mrs X’s child had used a shared taxi successfully before.
30. The Appeal Panel considered the matter at Stage 2 in May 2023. It decided not to uphold the appeal. However, the decision and appeal documents are confusing. The documents state that Mrs X’s request for a single use taxi twice daily with passenger assistant ‘had not been refused’, but also does not say it is agreed. The Panel noted Mrs X had rejected the offer of a personal transport budget. The Panel concluded the Council was doing all it reasonably could to recruit more personnel.
31. Mrs X told me that she has not received any information about whether the Council has been successful in recruiting a passenger assistant for September 2023.
32. Since I issued my draft decision a single use taxi with passenger assistant has re-started from September 2023.

Analysis

33. As I understand it the outcome of the Stage 1 appeal was for Mrs X to be provided with a personal transport budget in lieu of a taxi. The job of the Stage 2 Panel was to consider Mrs X’s appeal against these arrangements. That is, to consider whether the ‘travel arrangements’ offered were ‘suitable’. There does not appear to have been any discussion about the personal transport budget and whether this amounted to a ‘suitable’ ‘transport arrangement’ at the Stage 2 appeal. This is fault.
34. The law does not permit a Council to insist a parent of a child eligible for transport under s.508B provide transport themselves where this is not voluntary, even when expenses are offered. Section 508B is clear the Council must provide actual transport unless the parent consents to an alternative. Mrs X has not consented to an alternative and so the Council must provide actual transport. It follows the Appeal Panel should have upheld Mrs X’s appeal with a finding the Council’s ‘travel arrangement’ of a personal transport budget was not suitable, indeed it was unlawful.
35. Rather than stating Mrs X’s request for a single use taxi and passenger assistant twice a day was ‘not refused’, the Council and Panel should have clearly decided what arrangement of actual transport the Council considered suitable to meet needs (irrespective of service delivery issues). Given the information provided to the MP it is likely, on the balance of probabilities, the Panel would have found a single use taxi with passenger assistant was required both morning and afternoon. Indeed this has now been provided from September 2023.
36. The Council’s inability to secure a passenger assistant for the afternoon trip was service failure. While the Council may have done all it could to recruit, this does not alter that it was fault and service failure not to provide suitable transport arrangements.
37. The Council could have dealt with this matter through its complaint procedure rather than require Mrs X to appeal, twice, when its own notes show it does not disagree a single use taxi with assistant in both directions was required.
38. I appreciate the Council has a waiting list for students who need passenger assistants, but this does not alter whether the pupil is ‘eligible’ or what constitutes a ‘suitable transport arrangement’.
39. I have not found fault with the Council’s decision not to uphold Mrs X’s complaint about the lack of a risk assessment. The Council has explained it held information which suggested a shared taxi had been previously successful. The Council has accepted fault in that no notice of the proposed change was given to the family.

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Agreed action

Within one month of my final decision:

40. The Council will apologise to Mrs X for its service failure and the handling of her appeals.
41. The Council will issue a fresh decision clearly stating the travel arrangements the Council considers suitable for Mrs X’s child given the child’s particular needs (and that it cannot impose a personal travel budget without a parent’s agreement). As the Council has now provided transport I do not need to make recommendations about this. However, the Council should still provide written confirmation of eligibility.
42. The Council will pay Mrs X £500 for her family’s inconvenience and distress.
43. The Council will develop and share with the Ombudsman its action plan for ensuring it has a sufficient supply of taxi drivers and passenger assistants going forwards and explain how it prioritises children on any remaining waiting list.
44. The Council will remind officers and appeal panel members that arrangements such as payment of expenses / a personal transport budget, must always be agreed with parents for children who are ‘eligible’ under s508B as they are voluntary.
45. The Council will ensure that decision letters state a clear outcome. It is not enough to say an application has ‘not been refused’ the decision letter must clearly state whether the application is agreed or refused and give reasons.

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Final decision

46. I have completed my investigation. There was fault by the Council in imposing a personal travel budget on a parent of an ‘eligible’ child without their consent when the Council could not recruit a passenger assistant. The appeal panel also failed to consider the relevant law. The inability to provide a passenger assistant for several months was service failure. This has caused unnecessary inconvenience and distress to Mrs X and her family. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman