Summary: Ms X complained about the outcome of a home to school transport appeal for her son, Y. We found fault because the Council failed to properly record the deliberations by the appeal panels and show how the panels arrived at their decisions to refuse Y school transport. It also failed to provide sufficient detail in its decision letters. This has caused Ms X and Y distress and uncertainty. The Council has agreed to apologise to Ms X and hold a fresh stage 2 appeal panel. If it decides to award Y with school transport it has agreed to consider whether to make payments to Ms X and Y to recognise the injustice caused by its earlier decisions. So we have completed our investigation.

The complaint

1. I have called the complainant Ms X. She complains there were failings in the way the Council considered her application and appeal for school transport for her son Y. Ms X says the Council failed to take into account Y’s special educational needs, her personal circumstances and the home to school distance. Ms X says this has caused distress and means Y will be unable to attend school as she cannot take Y to school, and he cannot walk the distance.

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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 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)
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. 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

5. I spoke to Ms X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response along with relevant law and guidance.
6. Ms 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 statutory guidance about school transport

Home to school travel arrangements

7. 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.
8. ‘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)
9. If only one school is named in a young person’s Education Health and Care Plan (EHC Plan), 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)
10. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe if they would be able to walk to school if they were accompanied.

Route safety

11. Free home to school transport must be provided to children living within walking distance of the school if the route is reasonably deemed unsafe. In deciding whether a child can reasonably be expected to walk to school, (whether the issue is safety or disability), the question is whether they can do so if accompanied, and whether it is reasonable to expect a parent to accompany them. In assessing safety, local authorities should consider a range of risks, such as canals, rivers, ditches, speed of traffic and fields of vision for the pedestrian or motorist.

Statutory Guidance 2014

12. The Government also issued statutory guidance on home to school transport in 2014. This says the following:
• When determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
• For a council’s school transport 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. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 35)

Appeals process

13. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
14. The statutory guidance 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.
15. The ‘Home to School Travel Guidance’, July 2014, was replaced in June 2023 by ‘Travel to school for children of compulsory school age’ statutory guidance, I have referred to the old guidance as Ms X submitted her application when the old guidance was in place. Ms X’s appeals were heard when the new guidance had taken effect. The new guidance seeks to clarify local authorities’ statutory duties towards school travel and transport policy.

Our Focus report on school transport

16. As part of our role, we periodically issue Focus Reports to highlight common or systemic issues we see. These reports share learning from complaints to help councils and care providers make improvements, contribute to public policy debates, and give elected members tools to scrutinise local services.
17. In March 2017, in response to growing numbers of complaints about school transport, we issued a Focus Report - All on board? Navigating school transport issues.
18. In the report, we highlighted a range of issues, including the following:
• For children with special educational needs and disabilities, councils should ensure not just their mobility, but any health and safety difficulties associated with their special educational needs or disability are considered.
• Decision letters councils issue following applications for transport or subsequent appeals are sufficiently reasoned and detailed to enable parents to properly understand all factors considered in reaching the decision made.

LGSCO report against Birmingham City Council

19. In May 2021 we issued a report against the Council about the way it handled and considered applications and subsequent appeals for home to school transport for children. We found fault by the Council in the way it considered the applications and appeals particularly on a parent accompanying a child to school. We found the Council did not show how it considered a child’s individual needs and adequately record its decisions.
20. We made recommendations to the Council to remedy the injustice caused to the complainants. We also recommended service improvements to improve the service offered to other families. These included:
• Decisions about accompaniment should be made on a case-by-case basis.
• Decisions made about home to school transport must take account of the individual needs of the child. And consider whether the journey is “safe and reasonably stress free, to enable the child to arrive at school ready for a day of study”.
• If the Council requires further evidence to decide if a child is eligible for home to school transport, it should consult relevant professionals already involved with the child.
• When making decisions about transport for children with special educational needs, the Council should show how it has considered the content of the child’s education, health and care plan.
• Reasons for decisions must be recorded.
• Decision letters following appeals must set out how the Council carried out the review, who they consulted, what they considered and how the parent can escalate their case.
21. The Council agreed to our recommendations and to also revise its school transport policy to ensure its approach to accompaniment reflected the statutory guidance (2014).

The Council’s Travel Assistance Policy

22. The Council’s policy says it will determine what is appropriate in each case, taking account of its legal obligations, the needs of the applicant, safety considerations, the best use of the Council’s resources, any expressed preference, and any other relevant matter.
23. The Council’s travel assistance can include a travel pass, personal transport budget or transport vehicle to transport the child to and from a place of education. For children of compulsory school age (5-16) the Council’s policy is to provide travel assistance to those categories of eligible children in accordance with its legal obligations. But not otherwise unless there are exceptional circumstances.
24. The Council will consider making arrangements for individuals if they have an EHC Plan or circumstances are exceptional.
25. The Council has a two-stage appeals procedure if an applicant does not agree with the Council’s decisions. The Stage 1 appeal is by a Council officer although the Council’s documents refer to it as a panel. The Stage 2 appeal is considered by a panel of three council officers independent of the original decision who will consider written and verbal representations.

Education, Health and Care Plan (EHC Plans)

26. A child with special educational needs may have an EHC Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

Events leading to the complaint

27. What follows is a brief chronology of key events. It does not contain all the information I reviewed during my investigation.
28. Ms X’s son Y was due to move from primary to secondary school in September 2023. Y has an EHC Plan issued in February 2023 which outlines his SEN and health needs. Y has been diagnosed with Autistic Spectrum Disorder. Section B of Y’s plan says he;
• Has severely delayed understanding, use of language and social communication difficulties.
• Is easily distracted, can become confused and has difficulty managing change and transitions.
• Has poor fine motor skills and be easily fatigued.
• Has no awareness of danger and depends on adults to support access to learning at school.
29. In February 2023 Ms X applied for transport assistance for Y to have a taxi to take him to the named secondary school in his EHC Plan from September 2023. The application and EHC Plan said Y lived at home with both parents and four siblings. Ms X confirmed the family had a vehicle and she needed to take her four children to school. Ms X included a copy of Y’s EHC Plan. In March 2023 the Council told Ms X it would assess all the transport assistance applications for the academic year starting September 2023 in a few months’ time.
30. The Council assessed Ms X’s application in May 2023. It told Ms X her application was unsuccessful as the home was less than 2 miles to the school. The Council said it had no evidence to show that Y could not be taken to school by Ms X or another family member. The Council advised Ms X its travel assistance policy recognised that due to demands on time and domestic circumstances many parents found getting their children to and from school inconvenient and difficult. But its policy did not seek to address those situations.

Stage 1 appeal

31. Ms X submitted a Stage 1 appeal to review the Council’s decision in June 2023. Ms X said:
• Y had difficulty walking, had special needs and was unable to recognise danger. This prevented Y from walking to school alone or using public transport alone.
• She received disability living allowance and carer’s allowance for Y.
• She was a single parent with four children and a baby as Mr X now lived abroad.
• The Council’s map used to show home to school distance was inaccurate as the distance was over two miles.
32. An officer (Stage 1 panel) considered the appeal. The panel’s consideration form noted Y’s SEND needs and EHC Plan, the family makeup of two parents and children with access to a vehicle. It noted none of the other children had special educational needs. The home to school distance for Y was 1.6 miles with a walking time of 13 minutes. The form noted the time to go by car from Y’s school to a primary school for a younger child and included Ms X’s appeal information.
33. The form’s recommendation said, “Decline does not meet the distance criteria’. There were no other considerations noted about the issues on the form. The Council sent an outcome letter to Ms X. It said the panel had considered its transport policy and additional information submitted by Ms X but declined her appeal. This was due to the home being less than 2 miles from the school. And there was no evidence that Y could not be taken to school by Ms X or another family member.

Stage 2 appeal

34. Ms X submitted a Stage 2 appeal to review the Council’s decision in July 2023. A panel of the Council officers considered the appeal. The panel’s consideration form contained the information from the stage 1 appeal and extra information from Ms X. Ms X said it took Y two hours to walk to school with an adult as his medical health meant he got tired and had to keep sitting down. Ms X said she had checked the distance to school and considered it was over two miles. Ms X referred to her difficulties getting Y to school and her four other children so Y would not be attending school without travel support. Ms X submitted a route map of the distance to support her comments it was over two miles.
35. The panel’s consideration form recommendation said, “Decline does not meet the distance criteria’. There were no other considerations noted about the issues on the form.
36. The Council told Ms X of the outcome of the Stage 2 appeal in July 2023. The letter explained the panel had considered the appeal in line with the Travel Assist policy and the extra information provided. It said the panel had discretion to decide whether an individual applicant had any exceptional circumstances that would justify departing from the general policy. But the panel did not consider the extra information including the map showing the driving route to the school warranted a change in the original decision or a departure from the general policy. So, the panel dismissed Ms X’s appeal because the home was less than 2 miles from the school. It also said there was no evidence Y could not be taken to school by Ms X or another family member.

The Council’s comments on the complaint

37. The Council considers its Travel Assist policy aligns with statutory guidance and ensures the needs of the pupil are at the forefront of decision making. It says all applications and appeals are heard individually, considering the unique circumstances of each child. This includes taking into account the information provided by parents and any additional supporting information. Where a child has an EHC Plan it will consider the needs identified in the Plan.
38. The Council says in this case it has considered its policy as:
• When making discretionary decisions about travel assistance it takes into account all other ways and means for the applicant to reach the school or institution.
• It considered parental involvement as parents are expected to accompany their children to school until they turn 18 unless there is a valid reason why it is not reasonable to expect them to do so.
• It considered types of travel assistance. And determines the appropriate form of travel assistance taking into account legal obligations, the applicant’s needs, safety considerations, efficient use of resources, expressed preference and other relevant factors.
39. The Council says in this case Ms X has three other school aged children, one of whom attends a primary school 2.7 miles away. Ms X’s two older children are aged 16 and 14, attend a secondary school and have no SEN needs. The Council says it has not been provided with any reasons why the older two children cannot travel independently. The decision to refuse Ms X’s application was based on the fact Ms X has access to a vehicle. In line with the policy, she can transport her primary school child to school and then take Y to school.
40. The Council uses a specific measuring tool to measure a walking route to a school. Ms X sent screen shots of a route from an online map. This was a driving route and not a walking one. The Council measured the walking route to the secondary school from Ms X’s home which showed it was under two miles.

My assessment

41. Ms X’s application for travel assistance for Y was for a child with an EHC Plan and recognised mobility issues.
42. Section 508B and Schedule 35B of the Education Act 1996, local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. Eligible children include:
• 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 reasonably be expected to walk to school because the route is deemed unsafe to walk.
43. The fact that the walking distance may not exceed two miles is therefore not applicable in these circumstances and requires the Council to consider other factors including the needs of the child, safety of the route, whether accompanied and the family circumstances.
44. In my view the Council’s evidence to show how it considered Ms X’s stage 1 and stage 2 appeals has not been according to the statutory guidance. The only consideration by the Council which is made by the panel at either stage one or two is that the distance does not meet the criteria (two miles). While the panel forms refer to Y’s SEN, his EHC Plan and Ms X’s arguments, the panel forms do not show any consideration of these points as required. Nor do they give reasons why the panel considered these factors insufficient to warrant travel assistance.
45. The forms do not refer to the safety of the route, Y’s ability to manage it, whether he would be accompanied by Ms X and her reasons for not being able to do so. This is fault by the Council as it has not followed the statutory guidance when considering the application. It has failed to fully show the panels’ deliberations, give detailed reasons, and explain how Ms X’s submissions were assessed and considered.
46. The decision letters at stage 1 and stage 2 refer to distance. They also say the panel considered there was no evidence Y could not be taken to school by Ms X or another family member. But this point was not reflected in the panel consideration form. Therefore, the decision letters do not follow statutory guidance, our focus report and report against the Council. These say the decision letters from the Council should be sufficiently reasoned and detailed to enable parents to properly understand all factors considered in reaching the decision made.
47. It was also not according to the Council’s own policy which says all applications and appeals are heard individually and consider the unique circumstances of each child. This includes taking into account the information provided by parents and any additional supporting information. Where a child has an EHC Plan it will consider the needs identified in the child’s EHC Plan. The Council’s documents do not record how it has done this.
48. The Council’s failure to do so is fault as it has not properly explained the factors taken into account by the panels. This is despite agreeing to the recommendations we made in 2021. The recommendations included ensuring that when making decisions about transport for children with special educational needs, the Council would show how it considered the content of the child’s EHC Plan. And it would record reasons for decisions.
49. The faults identified have caused an injustice to Ms X due to distress and uncertainty of not knowing whether the decisions were properly reached and whether the panels would have arrived at a different conclusion but for the fault.
50. I have made recommendations below to ensure the Council carries out actions to prevent recurrence of the faults including a fresh stage 2 appeal. I have also recommended that if, following the fresh appeal the Council decides Y should have had school transport it considers providing a further remedy to Ms X. This would be for any unnecessary expenses incurred since September 2023 caused as a result of no school transport being in place.

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Agreed action

51. I considered our guidance on remedies and recommended the Council takes the action below within a month of our final decision on the complaint. The Council has agreed to the recommendations which are to:
• Write to Ms X and apologise to her for the distress and uncertainty caused by the stage 1 and 2 panel’s failure to properly consider her case.
• Pay £200 to Ms X for the injustice the identified faults caused.
• Carry out a fresh stage 2 appeal for Ms X and Y with a different panel using the statutory guidance from 2023.
• Remind all officers who carry out stage 1 appeals and stage 2 school transport appeal panels, and those who send decision letters of the requirement to consider all of the evidence presented and properly record and evidence how it reached the decision, in line with statutory guidance.
52. If the Council, following the fresh stage 2 school transport appeal panel decides to award Y with school transport it will consider making a payment to Ms X for the reimbursement of any unnecessary expenses incurred taking Y to secondary school since September 2023.
53. This is to recognise any injustice caused to Ms X and Y from September 2023 onwards due to the failure to put school transport in place earlier. If the Council decides to award Y with school transport it should write to Ms X within one month of the panel’s decision with any offer of payment.
54. If Ms X is unhappy with the proposed payments as above, she can complain to us without the need to complaint to the Council first.
55. The Council will provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed this investigation as the Council accepts my recommendations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman