Summary: Mrs M complained the Council refused her request for school transport for her son, B. The Council does not appear to have properly considered Mrs M’s application or appeal. A number of faults, taken together, call the Council’s decision into question. The Council has agreed to consider Mrs M’s application again.

The complaint

1. Mrs M complained the Council refused her application for home to school transport for her son, B.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 34(3), as amended)
3. 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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. Once 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

5. I have considered information provided by Mrs M and the Council, including all the papers from Mrs M’s transport application and appeals. I invited Mrs M and the Council to comment on my draft decision.

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What I found

6. Mrs M’s son, B, attends a local primary school. The school is less than a mile from Mrs M’s home. Mrs M applied for home to school transport on 4 September 2022. She completed the Council’s online school travel assessment form for children with special educational needs and disabilities.
7. Mrs M’s application was unsuccessful. The Council said that as Mrs M lives less two miles from the school, the Council was not required to provide transport. The Council also said it was not required to provide transport as there was suitable free transport available from Transport for London. The Council said it was a parents’ responsibility to accompany a child if he could not travel independently.
8. Mrs M appealed the Council’s decision at the first stage of the Council’s appeals process on 18 October 2022. Her appeal said, "The nature and/or severity of the child's mobility difficulties and/or special needs make it unreasonable for them to walk or to travel on public transport without assistance." Mrs M said B received the higher rate mobility allowance and assistance at school. Mrs M said B was immunodeficient and vulnerable to infection using public transport.
9. Mrs M’s appeal was unsuccessful. The Council wrote to tell Mrs M the outcome on 4 January 2023. The Council said B does not meet the distance criteria.
10. Mrs M appealed the Council’s decision at the second stage of the Council’s appeals process on 3 March 2023. Mrs M sent medical evidence. I have not seen Mrs M’s medical evidence.
11. Mrs M’s stage two appeal was unsuccessful. The Council wrote to tell Mrs M the outcome on 28 July 2023. The Council said it had considered all the information, including “verbal context” provided by Mrs M at the hearing. The Council said there was no evidence to overturn the original decision. The Council said it believed B’s attendance could be improved “by his parents taking him in”, and while B suffers from fatigue, there was no evidence of severe mobility issues. The Council said B does not meet the distance criteria, which the Council said was three miles.
12. Mrs M complained to the Council. She said she had not attended a hearing because the Council had cancelled the hearing as a panel member was unavailable. Mrs M said she did not believe the Council had considered her appeal properly.
13. Unhappy with her dealings with the Council, Mrs M complained to the Ombudsman.

Home to school transport

14. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
15. Various categories of eligible children are defined in Schedule 35B of the Education Act 1996.
16. Mrs M applied for transport because B has special educational needs and a disability which she believes mean he is unable to walk to school.
17. The relevant eligibility criteria are set out in paragraph 2 of Schedule 35B. This says,

Children with special educational needs, a disability or mobility problems

2 A child falls within this paragraph if—

(a) he is of compulsory school age and is any of the following—

a child with special educational needs;

a disabled child;

a child with mobility problems,

(b) he is a registered pupil at a qualifying school which is within walking distance of his home,

(c) no suitable arrangements have been made by the [local authority] for enabling him to become a registered pupil at a qualifying school nearer to his home, and

(d) having regard to whichever of the following are relevant—

his special educational needs;

his disability;

his mobility problems,

he cannot reasonably be expected to walk to the school mentioned in paragraph (b).

18. The Government has issued statutory guidance which councils must follow unless they have good reason. (Travel to school for children of compulsory school age. Statutory guidance for local authorities issued by the Department for Education in June 2023)
19. Paragraph 64 of the guidance says a council is not required to arrange travel for an eligible child where suitable free travel is provided by someone else, for example, their school or the local transport authority (for example, Transport for London).

Consideration

20. To determine whether B is entitled to free home to school transport, the Council must decide whether, having regard to his special educational needs and disability, he cannot reasonably be expected to walk to school.
21. There is no evidence the Council considered the implications of B’s special educational needs or disability for his ability to walk to school when it made its original decision.
22. The Council referred to the distance to the school and the availability of free transport from Transport for London. These considerations are irrelevant.
23. This is fault.
24. There is no evidence the Council considered the implications of B’s special educational needs or disability for his ability to walk to school when it made its decision following Mrs M’s stage one appeal.
25. The Council simply said B does not meet the distance criteria. The distance criteria are not irrelevant to Mrs M’s application.
26. This is fault.
27. Mrs M specifically referred to B’s special educational needs in her appeal. The Council’s decision letter does not address the points Mrs M made in her appeal.
28. This is fault.
29. I cannot tell from the decision letter following Mrs M’s stage two appeal how the Council reached its decision that B’s special educational needs or disability do not affect his ability to walk to school.
30. The Council again referred to the distance criteria. This is irrelevant. The Council said the distance criteria was three miles. This, too, is wrong for a child of B’s age.
31. The Council referred to Mrs M speaking at the appeal hearing when in fact she did not attend.
32. Taken together, these factors call the Council’s decision into question. The Council has made mistakes, taken irrelevant factors into consideration, and failed to adequately refer to relevant information.
33. This is fault.
34. The Council took the entire school year to consider Mrs M’s application and subsequent appeals.
35. The Council’s policy says a parent will receive a decision on a stage 1 appeal within four weeks. Mrs M waited 11 weeks.
36. The Council’s policy says a parent will receive a decision on a stage 2 appeal within nine weeks. Mrs M waited 21 weeks.
37. This delay was unreasonable and is fault.
38. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.

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Agreed action

39. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
40. I cannot say whether B is entitled to free home to school transport. Only the Council can decide. I recommended the Council re-considers Mrs M’s transport application and provides her with a clear and comprehensive written decision. The Council should address the faults I have identified in its previous decisions. I recommended the Council does this within one week of my final decision. If the Council decides B is not eligible for transport, it should offer Mrs M a stage two appeal within two weeks of its decision. The Council should invite Mrs M to attend the appeal hearing and provide a clear and comprehensive written decision within one week of the hearing.
41. If the Council decides B is eligible for home to school transport, it should offer a symbolic payment to acknowledge the transport B should have had since Mrs M’s original application. If Mrs M is unhappy with the offer, she can complain directly to the Ombudsman.
42. The Council should offer Mrs M a symbolic payment of £250 to acknowledge her time and trouble pursuing her complaint. The Council should make the payment within six weeks of my final decision.
43. The Council should provide us with evidence it has complied with the above actions.
44. We can also make recommendations to ensure similar faults do not happen in the future. We are currently investigating complaints from other parents about school transport. I will make recommendations to address the faults found in all the complaints, but I will not repeat them here.

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Final decision

45. I have ended my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman