Summary: Mrs X complained about how the Council handled her application for home to school transport support for her son, Y, in 2023. Mrs X also complained the Council withheld information about Y’s entitlement in September 2022 and would not backdate the transport allowance it later agreed to in September 2022. The Council failed to tell Mrs X about the home to school transport support in 2022, and failed to properly consider and respond to her application for support in 2023. The Council will apologise for the injustice this caused and backdate the support to September 2022.

The complaint

1. Mrs X complained about how the Council handled her application for home to school transport support for her son, Y, in 2023. Mrs X also complained the Council withheld information about Y’s entitlement in September 2022 and would not backdate the transport allowance it later agreed to in September 2022. Mrs X also complained the Council did not explain why it overturned its decision to deny Y’s entitlement to school transport in 2023 and its original letter was rude and impersonal. Mrs X said this caused her frustration, distress and a financial loss.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
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)
7. 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 have and have not investigated

8. I investigated matters that occurred more than 12 months ago. Mrs X said she was not aware of the personal transport budget until 2023, therefore she complained to us within 12 months of being aware of the issue. The complaint is therefore not late.

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How I considered this complaint

9. I read the documents Mrs X provided and discussed the complaint with her on the telephone.
10. I considered the documents the Council provided in response to my enquiries.
11. Mrs 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

Relevant legislation and guidance

Transport – arrangements for eligible children

12. 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)

Nearest suitable school

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. It should name the school or setting the child or young person should attend.
14. If only one school is named in a young person’s EHC plan, then that is the school the council has determined 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. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.

Transport support

15. Council’s can make different kinds of arrangements to support eligible children to attend their qualifying school. Support can be via transport such as taxi, public travel passes or providing a personal budget to parent and carers to cover fuel for transporting the child in their own vehicle. A personal budget can only be provided with the parent’s agreement.

Transport appeals

16. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
17. 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)

What happened

18. Y has neuro-differences, a mental health and a physical health condition. In 2021 the Council issued an EHC Plan for Y that named school A as the school Y should attend from September 2022. School A is a specialist school and is over five miles away from Y’s home. Y began attending school A in September 2022. Mrs X took him to and from school every day in her car.
19. Mrs X said school A told her in 2023 that she may be entitled to mileage costs for taking Y to and from school each day. In September 2023 Mrs X applied for a personal transport budget for Y. She set out the conditions Y had, that he could not travel alone but that she could take him, that he had an EHC Plan naming School A and the distance it was from his home. Mrs X provided copies of Y’s EHC Plan, and letters from health services about Y’s conditions.
20. The Council wrote to Mrs X and said Y did not meet the criteria for support with home to school transport. It said that as Mrs X was well, was not employed during the day and had a car, she could take Y to and from school which was her legal responsibility. It said Y could apply for a national concessionary bus pass.
21. Mrs X appealed the decision and said:
• Y lived more than the three miles walking distance from the school named in his EHC Plan, and so met the criteria for assistance on that basis alone.
• Y could not safely walk the route anyway due to his needs and health condition.
• The free bus pass the Council suggested would mean Y would need to take two buses to and from school, which he was not able to do due to his needs.
22. Mrs X also complained to the Council. She said the Council’s decision that Y did not meet the criteria was illogical, and suggestion of a bus pass was absurd.
23. The Council told Mrs X it had considered her appeal and would provide a transport budget for her to take Y to and from school. It provided no explanation of the information it considered or why it had overturned its previous decision. In response to my enquiries the Council said it decided it was not appropriate to offer Y a bus pass.
24. The Council responded to Mrs X’s complaint. It apologised for the distress caused by its initial decision, and said it had now decided to provide a transport budget. It said if she was dissatisfied she could progress her complaint.
25. Mrs X said she was dissatisfied with the process. She said she was told that the budget would not be backdated and it should be backdated to September 2022 when Y began attending school A, as the Council had not informed her of the transport budget at the time. Mrs X said she believed the Council intentionally withheld the information when it named school A.
26. The Council wrote to Mrs X and said it agreed to backdate the transport budget to the start of the 2023/24 academic year. It apologised Mrs X had found the process of applying frustrating and it intended to make changes to the application process.
27. The Council provided a stage 2 response to Mrs X’s complaint in November 2023 and said:
• It was not possible to back date the budget to September 2022 as it would only back date payments to the date of the application or start of academic year; and
• It agreed it needed to do more to promote transport entitlement to parents and it would work with schools and parents to do this.
28. In response to my enquiries the Council said the information about home to school transport was available on its website. It said when finalising an EHC Plan its case officer would normally tell parents that they may be entitled to home to school transport support. The Council said it had no record that it informed Mrs X about school transport support, or provided her with an application form when it issued Y’s EHC Plan naming school A.
29. The Council said it would look at improving the processes and communication to parents and carers of children with an EHC Plan.

My findings

30. When Mrs X applied for a transport budget for Y, Y was attending the school named in his EHC Plan which was the nearest suitable school and the qualifying school. The school was more than three miles away from Y’s home and he was therefore an eligible child. The Council should have provided support with home to school transport on that basis alone. The Council refused to provide support because Mrs X could take him herself. That is not the test set out in the legislation and is fault. This meant Mrs X continued to take Y to and from school without the support she was entitled to.
31. The decision letter the Council sent to Mrs X did not refer to all the information Mrs X had submitted with her application, but it was personal to Mrs X’s submission. I do not find the Council’s letter was rude or impersonal.
32. The Council reconsidered its decision on appeal and overturned it. It did not provide any information to Mrs X on how or why it changed its decision, which is not in line with the statutory guidance. The Council said it overturned its decision because it was not suitable to offer Y a bus pass. However, the Council had not offered Y a bus pass, but told Mrs X how she could apply for a national concessionary bus pass. All of the above is fault and it caused Mrs X frustration and uncertainty about whether her appeal had been considered properly.
33. The Council has since backdated the transport budget for Mrs X to September 2023, which is an appropriate remedy for the injustice caused to Mrs X from September 2023 by the Council failing to properly consider her application. I have made appropriate service improvement recommendations below.
34. Mrs X said the Council withheld information about school transport support when Y first began attending school A. The Council said the information was available on its website and it would have informed Mrs X when the EHC Plan was being finalised. However, Mrs X would have had to have known that home to school transport support was available to seek out the information she required from the Council’s website. The Council has no record it informed Mrs X about home to school transport. Mrs X said she applied as soon as she was told about it by school A. Therefore had she known about it in 2022 it is more likely than not she would have applied for it in 2022.
35. On the balance of probabilities, I find the Council did not tell Mrs X about home to school transport support and that was fault, however I cannot say the Council intentionally withheld the information from Mrs X.
36. As Y was an eligible child in September 2023, and he attended the same school and lived in the same property as he did in 2022, I find that had the Council acted without fault, Mrs X would have applied for and received home to school transport support from September 2022.
37. Mrs X asked the Council to consider backdating the transport budget to September 2022. The Council said it could not back date the payment but did not explain why. The Council fettered its discretion to consider the circumstances of Mrs X’s case. That was fault and caused Mrs X the time and trouble of bring her complaint to us.

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Agreed action

38. Within one month of this decision the Council will:
• write to Mrs X and apologise for the frustration, uncertainty and time and trouble caused by the Council’s fault and pay her a symbolic amount £300 to recognise the same. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology I have recommended; and
• backdate Y’s personal transport budget to the date Y began attending school A, and pay Mrs X in line with the allowances in place at the time.
39. Within three months of this decision the Council will:
• review how it currently promotes transport entitlements to schools and parents, identify any areas for improvement and make a timebound action plan to implement the improvements identified;
• remind all SEN case officers to inform parents and carers about home to school transport support when an EHC Plan is being finalised, and to record that the information has been shared;
• provide training for all staff in the transport team, including senior managers, covering the legislation and statutory guidance for considering eligibility for mandatory home to school transport support, before discretionary support, and in setting out its decision on applications and appeal response in line with the statutory guidance; and
• share the learning from this investigation with the Council officers involved in this case.
40. The Council will provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. I found fault causing an injustice. The Council has agreed to my recommendations to remedy that injustice and avoid the same faults occurring in the future.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman