Summary: Mrs X complained that the Council failed to consider her application for free school transport properly. To the Council’s credit, it has now reconsidered and granted travel assistance for the complainant’s daughter. This has resolved the main aspect of the complaint. The Council has also agreed a small additional remedy to recognise the avoidable distress to the complainant.

The complaint

1. The complainant, who I refer to as Mrs X, complained that the Council failed to consider properly her application for free school transport for her daughter, (Child B), who attends a special secondary school (School C) under 3 miles from her home.
2. The Council’s Transport Appeal Panel (the Panel) considered Mrs X’s appeal against the refusal of school transport. But this was not upheld. The complainant says the Panel did not properly consider all the facts or consider that there is discretion to allow school transport even if the distance is under three miles.
3. Since September 2023, Mrs X has had to take Child B to School C, which has caused her avoidable distress and time and trouble. She also had to give up her employment to ensure her daughter attended school.

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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. 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.
5. 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.
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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What I have and have not investigated

7. I have investigated the way the Council considered Mrs X’s application for free school transport.

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How I considered this complaint

8. I have spoken to Mrs X on the telephone and made enquiries of the Council. As a result of these enquiries, the Council reconsidered Mrs X’s transport application and granted free transport, starting in January 2024. Accordingly, my investigation has been limited.
9. I issued a draft decision statement to the Council and to Mrs X and have taken into account their further comments before reaching my final decision.
10. 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.

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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.
13. A child under the age of eight is eligible for free transport to their nearest, suitable school if it is more than two miles from home. For a child over the age of eight, it is more than three miles.
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. Assessments should take account of a child’s physical ability to walk to school, accompanied or unaccompanied, on a case-by-case basis.
16. 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.
17. The Council’s transport policy says consideration will be given to providing transport assistance where the distance is less than three miles. However, in such cases, an assessment of need should be undertaken.

Key facts

18. Child B has severe learning disabilities and developmental delay. She has many other health difficulties, and has mobility and balance difficulties, and sometimes uses a wheelchair. She received free school transport when at her special primary school. Child B has an Education, Health and Care (EHC) Plan.
19. The Council measured the distance between Mrs X’s home to School C to be 2.632 miles. The Council decided that Child B could walk to school accompanied by her mother.
20. In June 2023, Mrs X appealed to a senior officer and her appeal was refused.
21. Mrs X appealed to the Council’s independent Panel.
22. On 3 August 2023, Mrs X provided evidence to the Panel of her daughter’s difficulties, and she told it that Child B would be unable to walk the 2.632 miles, accompanied or unaccompanied.
23. The Panel refused the appeal on the basis that the Council’s Home to School policy had been applied correctly.
24. Mrs X complained to the Ombudsman. Mrs X was very concerned that the Council had not properly considered whether it was safe for Child B to walk to school, accompanied or not, and it had failed to consider its discretion, as set out in its policy that:

“Consideration will be given to providing transport assistance where distance is less than 3 miles. However, in such cases an assessment of need will be undertaken as outlined in section 5”.

25. When making enquiries in November 2023, in view of Mrs X’s concerns, I asked the Council to reconsider its decision. It seemed to me that the Council had not considered the safety issue or that there was some discretion where the distance was under three miles.
26. The Council told me that the Panel was fully aware of the contents of Child B’s EHC Plan, and that Child B could walk no more than 500 metres. The Council says that the Panel’s decision was based on the application of its policy and that the family’s transport arrangements could be adjusted.
27. However, on receiving our enquiries, the Council said that it reviewed all aspects of the case (as requested), including Mrs X’s initial application, and the stage 1 and 2 appeal decisions. It then decided to grant the appeal. Free school transport started in January 2024.
28. The Council has apologised to Mrs X and told her that the initial problem was that an element of the route, on which the home to school distance had been calculated, was unsafe. So, Mrs X’s application should not have been declined. The Panel therefore made its decision based on inaccurate information.
29. The Council is now looking at ways it can more easily identify unsafe walking routes.

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Final decision

30. It is to the Council’s credit that it has been willing to reconsider Mrs X’s appeal and has allowed this. The Council has now identified the problem (not identifying that a walking route was unsafe) and it says that it is taking action to prevent this happening again.
31. I find there is some fault by the Council and Mrs X has been caused injustice. But I am mindful of the Council’s willingness to reconsider Mrs X’s application, to do so promptly and seek ways to ensure the problem did not recur. That is some remedy for the injustice caused.

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Agreed action

The Ombudsman’s guidance on remedies (2022)

32. When someone has suffered injustice, we try to put them back in the position they would have been but for the error. Our focus is on restoring services that have been denied. Where that is not possible, we will try to think of remedies that acknowledge the impact of the faults.
33. Where that takes the form of a payment, it is often a modest amount whose value is intended to be largely symbolic rather than purely financial. We also support organisational learning and improvements to help others.
34. We expect senior officers from councils to make effective, timely and specific apologies for the faults we have identified.
35. Within one month of the final statement, the Council will:
1. apology in writing to Mrs X for the lost opportunity to have her free transport application considered properly and make a symbolic payment of £200 (the Council has already done this); and
2. the Council should consider whether this case might be a good training tool for those considering free transport appeals. In particular, the kind of cases where the Council can use its discretionary powers.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There has been fault causing an injustice. As the Council has remedied this, and accepted our findings, I have completed my investigation and am closing the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman