Summary: There was fault by the Council in how it dealt with an application for school transport. It did not take account of the statutory guidance and its policy does not reflect this. The Council took too long to convene the appeal panel and did not call him during the hearing as promised. The Council’s failings have caused the parent distress, uncertainty, and frustration. The Council has agreed to remedy this.

The complaint

1. Mr B complains that the Council:
• Failed to properly consider his request for home to school transport for his son; and
• Failed to reply to his contact about this or include him in the appeal panel hearing.
2. Mr B says the Council’s failings have caused him frustration and distress, and his son cannot go to school.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

5. I considered the information provided by Mr B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have considered the comments received before issuing a final decision.
6. 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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What I found

The law and guidance

7. 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 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 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. 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.
9. 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)
10. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves. Councils must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case.
11. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
12. 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 policy and process

13. The Council’s policy says that it will not provide transport to where the parent has chosen a school that is not the nearest, or one of the nearest three, if the child is entitled to free school meals. The policy says that if a child has special needs and has an Education Health and Care Plan, then the nearest school is the one named in the Plan.
14. The Council’s policy says that it will consider other exceptional circumstances and lists these as: where a family has moved house; where the family is in temporary accommodation; and where a child has medical reasons for free transport and a medical professional has certified that transport is recommended.
15. The Council’s policy does not set out how the Council will consider a parent’s reasons for not accompanying a child on the journey to school.
16. The policy sets out how a person can challenge the Council's decision. There are two stages. First a senior transport officer will review the original decision within 20 working days of the applicant’s request. If the applicant remains dissatisfied, they can ask the Council to consider the appeal at stage two of its process. The Council will convene a panel of three senior officers not previously involved with the decision. The panel will consider representations from the parents and officers involved with the case.

What happened

17. Mr B’s son, K, is of compulsory school age. He is autistic and Mr B says he cannot travel alone. Mr B is also disabled, and needs a carer to travel. K does not go to his nearest school. Mr B says this is because the nearest schools are either faith schools, or cannot meet K’s needs. K is in a class for children with additional needs but he does not have an Education Health and Care Plan (which would normally name the school a child should attend and that can meet his needs).
18. Mr B applied to the Council for home to school transport for K. Mr B included that K is autistic and cannot travel independently, and that Mr B himself is disabled and needs a carer to accompany him when he goes out. The Council refused his application because Mr B has chosen for K not to go to one of the three nearest schools.
19. Mr B asked the Council to review its decision. He again said K goes to the nearest school that can meet his needs. He cannot travel alone and Mr B cannot accompany him due to his own disability. He also said that some of the nearest schools were faith schools and he is opposed to sending his child there for personal reasons.
20. The Council reviewed its decision and took into account that Mr B does not want his son to go to a faith school. But the Council still refused to provide transport. Its decision letter says that K is not eligible for home to school transport because K does not attend one of the three nearest (non-faith) schools. He does not have an EHC Plan naming the school he is at. It said it had taken into account the additional information Mr B gave, but cannot provide transport based on the needs of the parent. The Council’s decision letter says that if Mr B disagrees, he can appeal. It says that he might want to send more evidence and it suggested that this might be up to date letters from professionals.
21. Mr B appealed the decision. He said he did not think the Council had taken all the information into account and he clarified that although his son does not have an EHC Plan, they chose that school as it can meet his needs, and he is in a class for children with additional needs. Mr B also said that his son would not be able to go to school from now on because they had been borrowing a car, but cannot do that anymore.
22. The Council told Mr B that it would go to a panel, and that the Council will contact him during the panel hearing so that he could speak to it directly. However, the Council did not call Mr B during the hearing. The Council told Mr B that the panel is independent of the school transport team and so the team did not know why the panel had not called him. It apologised and said the manager would contact the panel and it would not decide the appeal until Mr B had spoken to it.
23. Mr B chased the Council several times over the following three months, but it did not respond and so he complained to the Ombudsman.
24. Mr B had submitted his appeal to the panel in August 2023. The panel of two senior officers finally heard the appeal in February 2024. It decided that the Council should not provide transport to school because K did not meet the criteria; he is not going to one of the three nearest schools due to Mr B’s preference; K does not have an EHC Plan naming the school as the only one to meet his needs. The panel also said that transport cannot be provided to support the parent’s additional needs.
25. The panel did not call Mr B during the hearing as promised. The Council says this was because the process was already delayed. The Council has also explained that the delays were due to staffing difficulties, but it has now resolved these and there are currently no appeals exceeding the time frames recommended by the statutory guidance.

Analysis

26. The Ombudsman’s role is to review how councils have made decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not taken into account relevant information, or failed to properly explain why it has made a decision. We call this ‘administrative fault’, and if we find it, we can consider what difference the fault may have made to the outcome, and ask the council in question to remedy it.
27. However, we are not an appeal body; we do not have the power to overturn council decisions or replace them with our own. This means that I cannot decide that the Council should provide school transport for Mr B’s child.
28. There was fault by the Council. Both its policy and the way it considered Mr B’s application do not entirely accord with the statutory guidance. The guidance says that councils must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case. The Council’s policy does not set out how the Council or its appeal panel will consider the parent’s reasons for not being able to accompany the child.
29. In deciding Mr B’s application, both the Council and the appeal panel said that it could not provide transport on the basis of Mr B’s disability. It failed to properly consider his reasons for not being able to accompany his child in line with the statutory guidance.
30. In addition, the statutory guidance says that 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. It does not say that this has to be the school named in an Education Health and Care Plan, or even that the child must have a Plan.
31. However, the Council’s policy says that where a child has special needs, the nearest school is the one named in their Plan. It does not allow for wider consideration where a school might be the one that can provide an education appropriate to the age, ability and aptitude of the child.
32. I can see that the Council took into account that Mr B did not want his child to go to a faith school, and so it discounted the nearer faith schools. But both the Council and the appeal panel said that one reason why it refused the application was that the school the child goes to is not named in an Education Health and Care Plan. It was fault by the Council when it failed to consider that the child’s school might be the nearest school to meet his needs, despite their being no Plan
33. There was further fault in the administration of the appeal process. The Council took too long to convene the appeal panel; it consisted of only two officers when it should have been three, and it did not call him as agreed.
34. The Council’s policy says that the appeal will happen within 40 working days and so it should have been decided by 13 October 2023. Instead the Council’s panel determined the appeal on 21 February 2024: 89 working days past the deadline.
35. The statutory guidance allows councils to arrange its review and appeal process as it sees fit and makes some recommendations about how this might run. It does not say that the panel should call or invite the applicant and it does not say there has to be three officers on the panel. However, as the Council told Mr B that the panel would call him, he was entitled to rely on this opportunity to submit further details and it is not clear why the Council’s delay is a reason not to call him.
36. In addition, the Council’s policy says the appeal panel will have three members and does not have any provision for when there are less. The panel that heard Mr B’s appeal was only two officers. Again, Mr B was entitled to rely on the Council convening the panel according to its policy, and its failure to do so is fault.
37. We cannot say that had the Council decided Mr B’s application without these faults, that it would have agreed to provide free transport to school. However, the Council’s shortcomings have left him uncertain that it has properly considered his application and the significant delay caused distress and frustration.

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Agreed action

38. The Council will within one month of the date of this decision:
• Apologise to Mr B for the faults 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.
• Pay Mr B a symbolic payment of £250 in recognition of the distress and frustration it caused him.
39. The Council will invite Mr B to submit any further evidence he has. Within 40 working days of receiving his evidence, the Council will convene a fresh panel to decide his appeal, taking into account the faults I have found.
40. Within two months of this decision, the Council will ensure a copy of this final decision is considered by the relevant scrutiny committee and cabinet member; and share a copy of the final decision with all staff dealing with complaints about school transport.
41. Within three months of this decision, the Council will:
• Review its school transport policy so that it reflects the statutory guidance. In particular, the Council should ensure that the policy reminds decision makers to take account of the applicant parent’s own circumstances and abilities; and that the nearest qualifying school is that which is appropriate to the child’s age, ability, and aptitude, regardless of whether this is named in an Education Health and Care Plan.
• Deliver training to relevant staff and panel members on the revised policy.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. There was fault by the Council causing injustice to Mr B.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman