Summary: Mr X complained about the Council’s handling of his application for continued home to school transport for his disabled son. Mr X says the Council’s actions negatively impacted the family. We found fault by the Council and the Council has agreed to apologise to Mr X and consider a new application for travel assistance.

The complaint

1. Mr X complained about the Council’s handling of his application for home to school transport for his disabled son. He complained the Council:
• Did not properly assess and address his son’s travel assistance needs;
• Did not provide a full explanation of why it considered his son was not eligible for travel assistance, and
• Did not consider his son’s specific special educational needs as part of its offer to provide independent travel training.
2. Mr X says the Council’s actions have negatively impacted his family. He would like the Council to restore the travel assistance previously provided.

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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 discussed the complaint with Mr X and considered the information he provided.
7. I made enquiries to the Council and considered the information it provided.
8. Mr X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

School travel arrangements

9. Local authorities 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 (SEN) the child may have. ‘Eligible children’ include:

• children living outside ‘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 SEN, 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)

10. A child will not normally be eligible for free travel to school on the grounds of their SEN, 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. Where the local authority determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraphs 47 to 52)
11. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. 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.

(Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

The Council’s independent travel training programme

12. The Council operates an independent travel training (ITT) programme for eligible young people with SEN. The Council says the programme is designed to meet service users’ individual travelling needs and is designed to promote travelling confidently and independently by implementing a personalised programme, with one-to-one support.

Principles of good administrative practice

13. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes

• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

Background

14. This chronology includes key events in this case and does not cover everything that happened.
15. In 2022, Mr X submitted an application to the Council for travel assistance for his disabled son, Child A. Mr X provided details of Child A’s disability and the reasons for the application.
16. The Council carried out an assessment to assess Child A’s ability to travel to school. The assessment concluded Child A was not able to travel to school on his own. The Council says it usually only offers ITT to eligible children/young people who qualify for SEN travel assistance, but offered it to Child A to support the family. The Council recommended a further assessment to determine suitability for its ITT programme.
17. In July 2022, the Council declined Mr X’s application for travel assistance. It said Mr X’s home address was within the statutory walking distance. The Council said the general expectation of its Home to School Travel Assistance Policy was that a child would be accompanied by a parent where necessary, unless there was good reason why it was unreasonable to expect the parent to do so. The Council said it did not consider ordinary work obligations constituted a good reason unless in exceptional circumstances.
18. Mr X appealed the decision at stage one of the Council’s appeals process. The Council upheld its decision and Mr X escalated his appeal to stage two.
19. The Council’s stage two decision said Child A was ineligible for travel assistance. However, the Council said it had used its discretionary powers and had granted travel assistance for Child A until the end of the academic year. The Council said it did not automatically renew travel assistance every year and that it reviewed the offer on a yearly basis. The Council offered Child A an ITT assessment and said the outcome could result in an offer of a programme of ITT.
20. Travel assistance for Child A began in late 2022.

What happened

21. On 21 June 2023, Mr X wrote to the Council and asked it to continue to provide travel assistance for Child A. Mr X provided details of Child A’s disability and SEN and gave reasons why he considered the route to school was unsafe. Mr X said he appreciated the efforts made by travel training for young people with SEN. However, he said he had not pursued this because he considered there was no evidence that travel training supported young people with Child A’s specific clinical profile. Mr X raised concerns that the ITT programme may not adequately address Child A’s communication challenges and cognitive processing difficulties.
22. On 14 July 2023, Mr X contacted the Council again to request a response.
23. The Council replied on 17 July 2023. It said the Council’s panel had discussed Mr X’s request but decided not to provide travel assistance from September 2023. The Council said it had previously used its discretionary powers to offer travel assistance with the expectation that Mr X allowed it to complete an ITT assessment. The Council said Mr X had however, refused to engage with the process. The Council said its offer of an ITT assessment was still available. It said if the assessment considered Child A was suitable to receive training, it would offer assistance until the service had a space for him and until Child A had successfully completed the training. The Council said if the assessment considered ITT training was not suitable for Child A, it would feed this information back to the panel for consideration.
24. Mr X replied on the same day to ask for an appeal of the Council’s decision. He said the Council had not sufficiently considered Child A’s specific needs and the impact of his SEN on his ability to travel independently. Mr X said he had given the reasons why he considered the ITT programme was not suitable for Child A and said the programme did not address Child A’s specific challenges. Mr X also said the Council’s decision letter did not explain how it had decided Child A was ineligible for transport assistance.
25. The Council wrote to Mr X on 28 July 2023 and confirmed its decision that Child A was not eligible for travel assistance. The Council said its offer of an ITT assessment was a way forward and that Mr X would be involved in discussions regarding the programme. The Council said it would deliver a bespoke package that would meet Child A’s needs and asked Mr X to consider the offer.
26. Mr X replied on the same day. He asked the Council to provide him with comprehensive details about the ITT programme, including the specifics of the training, its stages and how it is tailored to meet service users’ needs.
27. The Council replied and said Child A did not satisfy any of the eligibility criteria for travel assistance. It said it considered Child A was able to travel to school accompanied by an adult. The Council also said Mr X had not made an application for travel assistance for this year and as such had not actually appealed a panel decision.
28. The Council contacted Mr X again on 31 July 2023 and asked him to clarify whether he had made an application for travel assistance. It said if Mr X made an application, and if this was unsuccessful, the appeals process would become a formal process.
29. Mr X remained dissatisfied with the Council’s response and brought his complaint to the Ombudsman.

What happened next

30. On 10 August 2023, Mr X asked the Council to provide details of its travel assistance assessment procedure and its application to Child A’s case. Mr X also said the Council had not provided the details he had requested about the ITT programme.
31. The Council replied on 1 September 2023 and apologised for the delay in responding. It said its offer regarding the ITT programme was still available and it provided a link to the Council’s website about the ITT programme. The Council said its next step was to create a document to give details of the service. The Council said it was happy to discuss the ITT programme with Mr X and to explain how it would formulate a bespoke programme for Child A. The Council said Mr X had exhausted all appeals procedures.

Analysis – the Council’s assessment of Child A

32. In June 2023, Mr X provided the Council with details of Child A’s disability and SEN and gave reasons for his request for the Council to continue to provide travel assistance. Mr X also gave his reasons for not pursuing the Council’s offer of ITT. Mr X complains the Council subsequently did not properly assess Child A’s travel assistance needs and did not consider Child A’s specific SEN.
33. On 17 July 2023, the Council told Mr X its panel had discussed the information he had provided. Following that discussion, the Council maintained its offer of ITT to Child A but decided not to provide travel assistance from September 2023. As part of my enquiries, I asked the Council to provide copies of its panel meeting notes, to review how the Council considered the information provided by Mr X.
34. The Council’s response says all information provided by Mr X would have been considered and discussed at panel. However, it says the Council does not keep full detailed minutes of panel discussions, only the outcomes.
35. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. In this case, the Council says it considered all the information provided by Mr X and decided Child A was not eligible for travel assistance. Instead, it offered an ITT assessment. Whilst I acknowledge Mr X strongly disagrees with this decision, it is a decision the Council was entitled to make.
36. However, in line with the principles of good administrative practice, I would expect the Council to keep proper and appropriate records to demonstrate how it considered the information provided by Mr X, and therefore its rationale at the time for its decision. In the absence of records relating to the Council’s panel meeting, I am unable to make a finding on whether the Council properly considered Child A’s travel assistance needs and/or his specific SEN. Although I am unable to make a finding regarding this matter, I find the Council’s failure to keep proper and appropriate records of the panel meeting is not in line with the principles of good administrative practice, and I find this to be fault.

The Council’s communication with Mr X

37. Mr X also complained the Council did not provide a full explanation of why it considered Child A was not eligible for travel assistance. The Council’s Travel Assistance Policy for Children up to 16 years of Age Attending an Educational Establishment, and the statutory guidance says decision letters should set out:
• Why the Council reached its decision, (its rationale);
• How the review was conducted;
• What factors were considered.
38. The Council’s correspondence with Mr X in July 2023 does not address the points listed in the above paragraph. This is not in line with the Council’s policy nor the statutory guidance, and therefore, this is fault.
39. The Council’s correspondence to Mr X also caused avoidable confusion and uncertainty. This is because on 17 July 2023, the Council told Mr X it had discussed his request for travel assistance at panel. In addition, on 27 July 2023, the Council acknowledged receipt of Mr X’s stage one appeal against the decision not to provide travel assistance. However, on 28 July 2023, the Council told Mr X he had not made an application and as such, had not appealed a panel decision.
40. The Council therefore provided conflicting information to Mr X. This is because the Council initially indicated Mr X had submitted an appeal, but then said he had not in fact made an application. If the Council considered Mr X had not made a valid application, it could have explained this and invited an application from him when he made contact in June 2023. The provision of conflicting information and the lack of explanation regarding Mr X’s application is fault causing avoidable uncertainty and distress to Mr X.
41. Having identified fault, I must consider if this caused a significant injustice to Mr X. Mr X says he and his wife have to take Child A to and from school and this impacts their employment, and occasionally, their ability to provide transport to their other child. Whilst I acknowledge Mr X’s comments, the injustice from the fault identified is the avoidable uncertainty and distress already referred to.

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Agreed action

42. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mr X for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
2. Make a symbolic payment of £150 in recognition of the uncertainty caused by the fault identified;
3. Consider a new application for travel assistance from Mr X. This is because the Council did not tell Mr X in June 2023 that it considered he had not made an application;
4. Review the Council’s Travel Assistance Policy to include details about the Independent Travel Training program;
5. Remind staff to adhere to the statutory guidance and the Council’s own Travel Assistance Policy, specifically when providing decision notifications to service users, (to include why the Council has reached its decision, how the Council conducted the review and the factors considered in reaching the decision), and
6. Remind staff of the Ombudsman’s principles of good administrative practice and the importance of keeping proper and appropriate records in relation to decision-making.
43. The Council should provide us with evidence it has complied with the above actions.

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Final decision

44. I have found fault by the Council and the Council has agreed to take the above action to resolve this complaint. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman