Summary: We found fault on Mr D’s complaint about the way the Council handled his challenge of its refusal to award his son home to school transport. It delayed dealing with his initial challenge, failed to give reasons and show how issues raises were considered at both stages of the review process, and delayed responding to correspondence. The agreed action remedies the injustice caused.

The complaint

1. Following his application for free home to school transport from the Council, Mr D complains about it:
1. delaying responding to that application for several months;
2. failing to give him written reasons for upholding his appeal against its decision to refuse the application;
3. refusing to agree to backdate Personal Transport Budget payments to the start of school in September 2022;
4. refusing to pay it longer than an academic school year;
5. failing to make any payments at all; and
6. delaying responding to his complaint under its complaints procedure.
2. As a result, he has met the whole cost of transport to and from school for the entire academic school year and experienced inconvenience and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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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Home to school travel arrangements

6. 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.
7. ‘Eligible children’ include:

• children living outside the ‘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)

8. If only one school is named in a young person’s Education Health and Care Plan (EHCP), then that is the school the council has decided 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)
9. Councils should have an appeals process in place for parents who wish to appeal decisions about the eligibility of their child for travel support. (‘Home to School Travel Guidance’, July 2014, paragraphs 54-55 and Annex 2. This was updated in June 2023, but as this complaint predates the new guidance, I considered the old guidance).
10. It recommends councils adopt the following appeals process:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us.

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Council’s Home to school/College Travel Policy and Guidance (updated December 2022)

11. Parents have a right in law to state a preference for a school for their child but that does not automatically carry a right to free travel. When choosing a school, the journey there should be carefully considered for both parent and pupil.
12. Children of statutory school age (Reception to Year 11) are entitled to free home to school travel assistance if they:

• live in Staffordshire; and
• live beyond walking distance from the school which is also their registered base; and
• live within the designated catchment area of the school as decided by the Council or are attending the nearest suitable school with places available. For a child with an EHCP, the Council would consider transporting a child to the school preferred by the parent if not incompatible with the efficient use of resources.

13. For a child with an EHCP, the school named in the plan will usually be considered their nearest suitable school for transport purposes except where they would prefer a school further from their home than the nearest school.
14. Travel assistance will either be a pass for public transport, a payment to the parent to make their own travel arrangements, or a place on a school bus or other vehicle hired by the Council. It will decide what type of travel assistance is provided based on what is the most appropriate, suitable, and cost effective.
15. The payment of travelling expenses in the form of a mileage allowance may be offered at its discretion and paid at the end of each term once the school signed the claim form to confirm attendance. Payment is not backdated but paid from the date it agreed the application.
16. It has a two-stage review and appeals process. Stage 1 is a review by a senior officer who aims to make a decision within 20 working days. Stage 2 is a review by an independent appeal panel which will consider it within 40 working days of receipt. Within 5 working days of the panel meeting, a response is sent to the appellant. This will set out the nature of the decision reached, what factors were considered, and the rationale for the decision reached.

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How I considered this complaint

17. I considered all the information provided by Mr D, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mr D and the Council. I considered their responses.

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What I found

18. In March 2022, Mr D applied for home to school transport to a special school that his son E would start attending in Year 7 in September. His son is autistic and has an EHCP.
19. In May, the Council refused the application. Mr D tried to contact different officers about the decision, sending video evidence to challenge the decision. The Council confirmed receiving his review request on 30 May.
20. Hearing nothing back from the Council for three months, Mr D arranged for another parent to take E to and from school by car. He paid this parent £120 a month which was based on the cost of a taxi doing two journeys to and from school each day. Mr D explained this was necessary as E could not walk to school even accompanied. This was because he does not see dangers like other children, suffers from fatigue, would get overwhelmed, and there were too many unpredictable roads for him to cross.
21. Shortly before the start of the new term, the Council told him E did not meet the criteria for home to school transport. The Council explained the delay in responding to his request for a Stage 1 appeal was due to staff absences.
22. Mr D challenged its decision to refuse his application. In August, the Council sent him its Stage 1 Travel Assistance Review. This decided E could complete the journey if accompanied. The decision sent explained: it took account of the distance and journey time from home to school which is 1.1 mile by car and 1 mile on foot; there was public transport available; the criteria for Years 7-11 states a child must live more than three miles from the nearest suitable school (the eligibility criteria).
23. The letter explained E did not meet the eligibility criteria about living more than three miles away. It went on to explain it also took account of his argument that E met the eligibility criteria because he could not be expected to complete the journey to school safely when accompanied, regardless of distance. The decision said it was the view of the reviewing officer that E would be able to complete the journey if accompanied and it was the parents’ responsibility to arrange this. The letter gave no reason for this conclusion.
24. Mr D appealed this decision and in October, the Transport Appeal Panel considered it. His submissions to the panel included the need for a Personal Transport Budget (PTB). This is a sum of money paid to parents/carers of children with special educational needs and/or a disability who qualify for free school transport. It lets families decide how their child gets too and from school or college. Parents/carers can make arrangements which suits their child’s needs. Children must be ‘eligible children’.
25. The minutes of the hearing show the panel noted:

• Mr D’s argument that E met the eligibility criteria as he cannot be reasonably expected to walk to school because of his autism as he tires easily, cannot cope with loud noises or unpredictable situations, and would be distressed, overwhelmed, and scared by the time he got to school. It also noted the parents saying they never crossed that many busy roads in any journey and there were few pedestrian crossings; and
• It was a difficult case but it could be argued any child attending a special school could qualify for transport on this basis; there was going to be sensory overload in the city centre with noise and traffic; nothing medical jumped out about not being able to walk; the panel was generally on the fence and an officer would review the case.

26. Towards the end of the minutes, it said ‘All of the above must be considered during a Stage 2 review/appeal panel and addressed in the outcome letter that will be sent to the parent/carer within 5 working days of the panel taking place’.
27. Twenty-five working days later, the Council created a decision letter following the hearing. Mr D said he did not receive this letter and only heard of the decision by way of a telephone call. The Council accepted he was only told of the decision by email. Due to internal miscommunication, it cannot show it sent him the letter. I have not seen a copy of this email.
28. The letter explained the review process looked at whether the transport policy and law were correctly applied and if there were any special and exceptional circumstances which meant travel assistance should be granted as a concession. It told him the panel had overturned the original decision not to provide travel assistance. It decided to make an exception to its own policy and would arrange to provide transport for the remainder of the school year.
29. The letter does not say the panel decided it would make financial payments to Mr D for transport. While it gave the decision, it gave no reasons for it. Mr D needed to reapply for transport during May 2023 so E’s circumstances could be reviewed for the next academic year. The decision letter did not mention the panel awarding E a PTB as claimed by Mr D.
30. The Council explained it received a transport request in November and then another one in December asking for single occupancy but sent no evidence of these. Mr D denies making any such requests. It claimed it received no evidence E would have a problem with different drivers and cars picking him up from home and school.
31. Just before January 2023, the Council told Mr D a taxi had been arranged to take E to and from school which he refused. He refused because E has difficulty getting into a car or taxi where there was no guarantee it would be the same car and driver each time. Later that month, the Council said the ‘petrol allowance’ was acceptable which it could start from November 2022.
32. I have seen a copy letter from the Special Education Needs (SEN) Manager to Mr D. This said after a wider transport review, the Council considered the transport offers currently available as they do not suit all families. It looked at alternatives to the traditional taxi/mini bus offer and could, in certain circumstances offer a PTB. The Council later confirmed the PTB was agreed by a SEN manager, and it would send him the PTB agreement forms.
33. I have seen a copy of the PTB agreement sent to Mr D. The letter explained the PTB allowance was £33.16 a month. He was asked to sign and return documents, but the wrong address was used in its calculations.
34. In February 2023, following further correspondence from Mr D, the Council agreed to offer him £120 a month for the remainder of the school year. It said the PTB had been made on the basis of 60p a mile which meant the amount offered was £45.60 a month. The new offer was made to avoid further costs and the stress of further complaints and appeals. It noted the delay with resolving the situation was due to Mr D refusing to sign documents. Mr D claimed he received no documents and nor had he received any payments from the Council.
35. Mr D remained unhappy because:

• the value of the payments was not calculated on the price it costs to get E to school (£120 a month) but uses a flat mileage rate (£45.60 a month);
• the Council would only back date payments to November 2022, not the start of the school term in September. The Council explained the Stage 1 appeal did not find the policy had been incorrectly interpreted and nor was the original decision wrong. At the Stage 2 appeal, it decided to support the family based on the exceptional circumstances he presented at the hearing. It said there was no agreement to backdate this by this panel as it only agreed the arrangement for the rest of the academic year; and
• the decision was only for one academic year which meant re-applying for it again the following academic year despite the arrangements remaining the same. The Council explained the decision to make payments for a year was to allow the family the chance to consider alternatives to resolve the circumstances and consider any development in E’s abilities.

36. Mr D remained unhappy as he believes the Council looked at the application only in terms of how far E lived from school, not the disability/SEN criteria. He argues E is an eligible child and the Council was wrong to consider them as having exceptional circumstances.

My findings

Complaint a): Delay responding to application

37. Mr D applied for home to school transport in March 2022 and received a response about eight weeks later. I am not satisfied the time taken to process the application amounts to fault.
38. I found fault in the delay responding to his Stage 1 request following its decision to refuse the application. This is because it took the Council from the end of May, when it received his request, to the end of August before it replied and dealt with it. Under its own policy, this decision should have been made within 20 working days of receiving the request, which would have been towards the end of June. Instead, it was sent two months later. This is fault.
39. I am satisfied this caused Mr D an injustice. This is because this delay caused him some frustration, anxiety, and uncertainty.

Complaint b): Failing to give reasons

40. I am satisfied the Stage 1 review letter failed to give reasons for its decision that E did not meet the criterion about walking to school accompanied. The letter said the officer decided E would be able to, in his view, complete the journey if accompanied. It failed to explain why the officer reached this view and what evidence was considered and weighed when doing so. I consider this was an important failure because Mr D had raised issues about the problems walking to school would create when he contacted the Council about its initial decision in May 2022. The letter makes no reference to how the officer considered these points.
41. The failure to give reasons for the decision, and explaining how Mr D’s submissions were assessed and considered, amounts to fault. This caused him injustice as he has the uncertainty of not knowing whether the decision was properly reached and might have been different if it had been.
42. I am also satisfied the Stage 2 decision letter failed to give reasons. The minutes show the panel was aware of Mr D’s arguments about the eligibility criteria, particularly about E’s inability to walk to school whether accompanied or not. Towards the end of the minutes, it noted all the points it had listed must be addressed in the outcome letter that would be sent to Mr D within five working days.
43. The letter failed to do this and was not sent within five working days. It was dated 20 working days after it should have been received by Mr D. Indeed, while the Council says he was notified of this decision by email, I have seen no copy of it. The Council accepted it cannot show it posted the letter to Mr D either.
44. While the letter said the panel overturned the Stage 1 decision, it failed to explain why it had done so. This needed making clear as the Stage 1 decision had, in fact, held E was not eligible because it considered he could walk to school accompanied. The Stage 2 letter went on to explain it decided to make an exception to policy and would make arrangements to provide transport. Again, while the decision went in Mr D’s favour, it did not explain why the panel reached this view. Nor did it address his request in his appeal for a PTB.
45. I consider these failures amount to fault and breached not only government guidance, but the Council’s own policy about decision making. Mr D needed to know the reason for the Council’s changed view even though it went in his favour. This failure caused him an injustice as he has the uncertainty of not knowing whether all his submissions were properly considered and weighed when reaching this decision.
46. Although Mr D claimed the panel ‘noted and agreed’ his request for a PTB, there is nothing in the minutes showing this.

Complaint c) : Failing to backdate payments

47. I found no fault on this complaint and have looked only at the Stage 2 Decision. Actions following this decision are considered further below.
48. The Stage 2 appeal panel did not find E was now an eligible child but instead decided to provide assistance based on exceptional circumstances due to evidence considered at the hearing.
49. The panel’s decision made no mention of the Council making any payments at all. The decision letter merely agreed to make transport provision for the rest of the school year.

Complaint d): Paying for one academic year

50. I found no fault on this complaint. This is because had the Council agreed to do what Mr D wanted, which would be to continue the petrol allowance/PTB payments throughout E’s school career, it would not take account of any changes in his circumstances or that of his family. I am satisfied The Council needed to review E’s situation every year.

Complaint e): Making no payments

51. Following the Stage 2 decision, and Mr D claiming the taxi assistance was not suitable, there was some dialogue about providing a petrol allowance/PTB.
52. Mr D confirmed he received no payments from the Council for help with travel.
53. I considered the correspondence I have seen between the Council and Mr D about such payments. The Council made an initial offer based on its standard mileage rates which Mr D refused.
54. I have seen an email from him to the Council in February 2023 in which he said, ‘We have not signed and returned the documents’ and listed various points he found unreasonable and wanted to challenge which included the calculation of the travel allowance the Council would pay, the failure to backdate it, and it lasting only one academic year.
55. I have seen its response in which the Council said it would pay £120 a month for the rest of the school year. Mr D refused the offer because he disagreed with the basis on which it was made. The Council said it would ‘retain’ the offer until such time he accepted it.
56. I found no fault on this complaint. The Council offered to make the payment he sought, and Mr D refused it because he did not agree with its reasoning behind the offer. The reason no payments were made was because he refused the offer.

Complaint f): Complaint process

57. The correspondence Mr D sent the Council between February and June 2023 was not, on the whole, expressed as formal complaints. With the exception of the officer Mr D had been dealing with, the Council delayed responding to the emails he sent during this period.
58. The evidence shows Mr D chased the Council when it failed to reply but again, his correspondence did not say he was making a complaint. I note the email he sent in April ended by saying he hoped for a swift response so, ‘we do not have to resort to complaints, further appeals or contacting [the Ombudsman]’.
59. I am satisfied that while there was no formal complaint going through the Council’s complaints procedure, it was at fault for failing to respond to his correspondence promptly during this period.

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Agreed action

60. I considered our guidance on remedies.
61. The Council agreed to taking the following action within 4 weeks of the final decision on this complaint, unless stated otherwise:
1. Send a written apology to Mr D for failing to: promptly respond to his challenge to the decision to refuse home to school transport; provide reasons for decisions at Stage 1 and 2 of the appeal process and explain how issues raised were considered; respond promptly or at all to his correspondence between February and June 2023.
2. Review what steps it needs to take to ensure future staff absences are managed in such a way as to not delay the processing of Stage 1 challenges.
3. Remind officers of the need to provide reasons for decisions at Stage 1 and Stage 2 appeals which also show how issues raised were considered.
4. Review why his correspondence was not responded to between February and June 2023 and ensure steps are taken to ensure this failure cannot be repeated in the future.
5. Review why the Stage 2 decision letter was not sent and ensure this failure cannot be repeated in the future.
6. Within 8 weeks of the final decision, it will arrange a fresh appeal hearing by the Transport Appeal Panel.
7. Pay £200 to Mr D for the injustice the identified fault caused.
62. The Council should provide us with evidence it has complied with the above actions.

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Final decision

63. I found the following on Mr D’s complaint against the Council:

• Complaint a): fault causing injustice.
• Complaint b): fault causing injustice.
• Complaint c): no fault.
• Complaint d): no fault.
• Complaint e): no fault; and
• Complaint f): fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman