Summary: Mrs D complained how the Council handled her home to school transport appeal. She says the Council delayed dealing with her appeal. She also says the panel failed to properly consider the unsuitability of the pickup and drop off times from the transport arrangements. We find fault as the panel failed to consider what Mrs D originally wanted to appeal about. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained how the Council handled her home to school transport appeal. She says the Council delayed dealing with her appeal. She also says the panel failed to properly consider the unsuitability of the pickup and drop off times from the transport arrangements and the detrimental impact it will have on her son, E.
2. Mrs D says E is not attending school because of the unsuitable transport arrangements.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
5. 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

6. I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
7. Mrs D 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

Home to school transport

8. Councils 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)

Transport appeals

9. The statutory guidance (Department of Education, Travel to school for children of compulsory school age 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 considered, 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.

10. The guidance says it is for councils to determine which matters should be handled as complaints and which should be handled as appeals. Typically, matters such as whether a child is eligible for free travel, or whether the travel the council has arranged is suitable, will be handled as appeals. Matters such as the punctuality of a school bus, will be handled as complaints.

Journey times

11. The statutory guidance says as a general guide the maximum journey time for child of secondary school age should be 75 minutes. There will be circumstances when this is not possible, for example when a child needs to travel a long way to the school named in their Education, Health and Care (EHC) Plan. An EHC Plan is a legal document which describes a child’s special educational needs.
12. Travel arrangements for children with special educational needs, disability or mobility problems can be complex. Shorter journeys may be particularly desirable, perhaps because a child’s special educational needs or disability mean they become distressed while travelling, but a child may need to travel a long way to the school that is able to meet their needs and one vehicle may need to collect several children.
13. Where long journeys are unavoidable, local authorities should consider whether there are measures they can take to minimise the negative impacts for the child.

The Council’s home to school transport policy

14. The Council’s policy says parents can appeal for any reason or combination of reasons they wish, but they should consider if they have sufficient evidence to support their case.

What happened

15. This chronology includes an overview of key events in this case and does not detail everything that happened.
16. E has special educational needs. Mrs D applied to the Council for home to school transport for E. The Council approved Mrs D’s application and agreed to provide E with home to school transport in a vehicle with other children.
17. Mrs D contacted the Council in November 2023 and said the transport was unsuitable for E. She said the pickup times (7 to 7:30am) and the drop off times (5 to 6pm) would risk E’s health and his ability to learn. She said an 8am pickup and 4pm drop off would be more suitable for E. The Council responded to Mrs D and said E was in a four-seater vehicle with two other children. It said it could not alter the pickup and drop off times because of the other children.
18. Mrs D’s husband sent the Council an appeal form on 22 November. He said E has chronic insomnia and sepsis and the journey would worsen E’s health. Mrs D sent a follow up email to the Council the following week and provided further information about E’s health.
19. The Council responded in early December. It said the route it proposed was not adding a significant detour to E’s journey. It considered the evidence, but it was not sufficient to grant alternative transport. It said it could not consider an appeal for alternative transport on journey times. It would only consider an appeal for a sole occupancy vehicle for E. It asked Mrs D to provide supporting evidence why E needed a sole occupancy vehicle. It said once it received the information it would continue with her appeal.
20. The Council emailed Mrs D the following week and said it had found a solution that would involve E staying on the same transport, but it would swap a pupil. This would reduce the journey times in the mornings and afternoons by 30 minutes. Mrs D asked if it would pick up E at 8am and drop him home at 4pm. The Council responded and said it would do its best to have the arrangements in place for January 2024.
21. Mrs D emailed the Council in January 2024 and asked for an update on E’s transport arrangements. The Council responded and said it had been negotiating with its transport provider. It said it had come to a sensible agreement and it would complete the paperwork. It sent a further email later that day and said it had to cancel the new arrangements due to unforeseen circumstances.
22. The Council contacted Mrs D and apologised the transport solution had not worked. It agreed to consider her appeal.
23. Mrs D attended an appeal hearing at the end of January. She provided the panel with further documents to consider. She said E has limited sleep every night and a 7.30am pickup would be damaging for him. The Council explained it would pick E up at a similar time if he was using a sole occupancy vehicle because of the traffic and the route to school.
24. The panel discussed the case. Members said Mrs D had not tried the transport the Council had offered. They said the Council had put in place reasonable adjustments to meet E’s needs. They also said they could not consider the collection and journey times, and a sole occupancy vehicle would not make a significant difference to the journey time. They decided not to uphold Mrs D’s appeal.
25. The Council wrote to Mrs D after the hearing and provided her with a detailed letter explaining why it was rejecting her appeal.

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Analysis

26. The Council told Mrs D it could not consider the pickup, drop off and journey times for her appeal. The panel confirmed this in the appeal hearing. The Council told Mrs D the only way she could appeal was if she asked for a sole occupancy vehicle for E. This is what the panel considered. When the Council responded to my enquiries, it said the statutory guidance states councils are free to decide which matters they should handle as complaints, and which matters they should handle as appeals. It said its officers consider issues about journey times, and when attempts to resolve the issues have failed, it tells parents to appeal for a sole occupancy vehicle.
27. I accept the statutory guidance does give councils flexibility over which matters they can handle as complaints/appeals. However, the guidance also states councils should usually handle matters about the suitability of the travel as an appeal. Mrs D was arguing the pickup and drop off times meant the transport was not suitable for E. Therefore, in my view, this is a matter the appeal panel should have considered as it was about the suitability of the travel arrangements. I have not seen anything in the statutory guidance which says appeal panels cannot consider pickup and drop off times. It was not acceptable for the Council to tell Mrs D the only way she could appeal is if she asked for a sole occupancy vehicle for E, when this is not what she was originally asking for. The Council’s home to school transport policy also states parents can appeal for any reason they wish. There are no restrictions. Therefore, the Council has not acted in line with its policy. The faults identified have caused Mrs D an injustice as the panel has not considered what she was originally appealing about. It has also caused her some frustration as she had to change her reason for appealing when this was unnecessary.
28. In its response to my enquiries, the Council said it did not manage Mrs D’s expectations and it should have provided her with more detailed communication. It said it did not clearly detail in writing the feasibility of the alternative arrangements and the consequences of failing to find an alternative. It says because of these failures, Mrs D may have expected changes that later proved to be unworkable. It has offered Mrs D £200 for her confusion and frustration. I welcome the Council’s offer, and I agree its communication with Mrs D should have been better.
29. Mrs D says the Council delayed handling her appeal. The statutory guidance says councils have 40 working days from a parents request to arrange an appeal panel and send a decision letter. The Council missed this deadline by a few days. This is a minor delay and not significant enough to be fault.

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Agreed action

30. By 2 September 2024 the Council has agreed to:

• Apologise to Mrs D for the injustice caused by the faults identified in this statement.
• Pay Mrs D £200 it offered for her frustration and confusion.
• Arrange a fresh appeal with a different panel to consider the pickup and drop off times for the proposed transport arrangements and anything else Mrs D considers is necessary.
• Issue written reminders to relevant officers and panel members who deal with home to school transport appeals to ensure they are aware parents can appeal about the suitability of the collection and drop off times from any proposed travel arrangements.

31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. There was fault by the Council, which caused Mrs D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman