Summary: Ms K complained about the Council’s decision to change her children’s school transport arrangements. She said it was not suitable for their needs and she had to transport them at her own expense. While the Council has since made a suitable transport offer, we found the Council at fault for not offering Ms K an appeal when it should have done. This caused her avoidable uncertainty. The Council has agreed to our recommendations to remedy the injustice caused.

The complaint

1. Ms K complains about the Council's decision to change the travel arrangements it had for taking her children to school, despite concerns raised about these changes. They refused to use the transport and so she said it was unsuitable for their needs. It also did not offer her a right of appeal against the decision. This has caused the family significant distress and frustration and Ms K says she has had to transport her children instead, at cost to herself.

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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. 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)
4. 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

5. I discussed the complaint with Ms K, considered her views, and reviewed the information she provided.
6. I made enquiries of the Council and considered its written responses and information it provided.
7. Ms K 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

Law and administrative background

School transport arrangements

8. 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.

Transport appeals and the Council’s policy

9. Councils should have an appeals process in place for parents who wish to appeal a decision taken by the local authority about their child’s travel to school.
10. The statutory guidance (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5) recommends councils adopt a two stage process. It says typically matters such as whether a child is eligible for free travel, or whether the travel the local authority has arranged is suitable for the child’s needs, will be handled as appeals. Other matters such as delay in communication with a parent or the punctuality of a school bus, will be handled as complaints.
11. The Council’s policy about appeals says:
• Stage One: Review by a senior officer. A parent has 20 working days from receipt of the authority’s home to school transport decision to make a written request asking for a review of certain decisions, including “transport arrangements offered”.
• Stage Two: Review by an independent appeal panel.

Relevant background

12. Ms K has three children with Special Educational Needs (“SEN”). From autumn 2022, Child 1 and Child 2 shared a taxi to school with support from a Passenger Assistant (“PA”) by Provider A.

What happened – summary of key relevant events

13. In early July 2023, Ms K contacted the Council as she became aware Provider A’s contract would not continue in September. She asked it did not change as Child 1 and Child 2 had built a good bond with Provider A. Social care later also raised concerns with the change.
14. In response, the Council said it recognised the concerns but due to national procurement regulations, Provider A’s contract was ending and so it had to go out to tender to all operators.
15. Later that month, the Council confirmed it awarded Provider B the contract for the route for the new academic year. All three of Ms K’s children (Child 1, 2 and 3) would travel together in one taxi, along with a PA and another child.
16. In September 2023, Ms K complained to the Council. She said the transport arrangements it made for her children were inappropriate for their needs and it did not carry out a suitability assessment of the transport provided. They had refused the transport and so she had to transport them herself, at her own cost.
17. Ms K escalated her complaint after the Council responded at Stage One. She added her wish to exercise her right to appeal a decision taken by the Council about her children’s travel to school.
18. In November 2023, the Council responded at Stage Two. It concluded:
• It had offered the highest provision of a door to door taxi with a PA, and it could not guarantee the same driver and PA to cover entire school years;
• It had statutory constraints with when and who it awarded contracts to;
• It did not do a reassessment of her children’s needs as there was no change to provision, just a change to Provider B;
• It made an offer of reimbursement of fuel costs but only for a short term period for her to travel in the taxi with her children to help the transition;
• It was of the view the provision was suitable, it had offered various support with the change to Provider B which Ms K declined as unsuitable or unpractical, so it could not offer anything further; and
• It offered a reassessment with the SEN team should Ms K believe there were changes in her children’s needs.
19. Ms K then complained to us.

Events since Ms K’s complaint to us

20. Since April 2024, the Council has provided new transport provision for Ms K’s three children after she requested a reassessment of their needs in early 2024. Ms K said to me these arrangements are suitable.

The Council’s response to my enquiries

21. The Council said there is significant cost in administering an appeal. It did not believe it reasonable to routinely offer a transport appeal for a change of provider unless there was also a change of provision.
22. The Council said there was no identified change of need with Ms K’s children in 2023 and it used information it held on them previously for the tender process to make the arrangements for September 2023. This resulted in a new provider but for the same provision (a door to door service with a driver and PA).
23. The Council sent a copy of Child 2’s transport request completed by its SEN team from 2022. The “Specific Needs” section said they required a PA due to their behaviours and needs. Under “Can client travel with others?”, the response said “YES – will be travelling with [Child 1] – any changes/additions need discussing please”.
24. It was the Council’s view that it addressed Ms K’s concerns through the complaints process and had now resolved the issues. In response to her complaint, it had proposed a remedy of a reassessment of her children’s needs. She took up the offer in early 2024. It said it used the reassessments (which identified changes in need) for new transport requests to help secure suitable travel provision for them since April 2024.

Analysis

Change of provision and appeal

25. Councils have a duty to have regard to statutory guidance (referred to in Paragraphs 9 and 10) when creating their policies and the Council has details of its own internal appeal procedure relating to school transport. This process gives parents the opportunity to have the decision fairly reviewed and has independent oversight built in at the second stage.
26. The Council said it would not normally offer an appeal unless there is “a change of provision”. I find the Council at fault for this, and I am not satisfied with this on two grounds:
• Firstly, the 2022 transport request the Council used to make the new arrangements for September 2023 clearly said Child 2 would be travelling with their sibling Child 1, and any changes or additions needed to be discussed. This related to Child 2’s needs and requirements at that time. It then made the decision to add their sibling (Child 3) and another child to the taxi route. I am satisfied there was a change of provision at this point that went beyond just a change in taxi provider. These are matters which should have been dealt with as an appeal after Ms K raised her concerns with the suitability of arrangements made; they are not covered by the complaints procedure.
• Secondly, the Council’s approach of when it offers a transport appeal is not in line with statutory guidance or the wording of its own policy. In my view, this is gatekeeping by putting an unnecessary barrier to parents and their right to appeal. The Council’s transport policy (referred to in Paragraph 11) says parents can appeal a decision about transport arrangements offered. The policy does not distinguish other conditions that need to be met or says it only applies when it considers it a “change” of provision. Therefore, in Ms K’s case, she met the criteria for an appeal. On plain reading of this, the Council should have recognised and treated this as a request for an appeal, given she was clearly dissatisfied with the transport offered.
27. In cases where a council has not properly followed an appeal process, we generally recommend it complete an appeal. However, events have moved on since. There is no need for an appeal now as Ms K’s children have suitable travel provision in place.
28. The Council said it has since resolved the issue without the need for an appeal. However, there is injustice to Ms K by the Council’s fault in not accepting her transport concerns as an appeal when it should have done in September 2023. I cannot speculate on what the outcome of an appeal might have been. But this has caused Ms K some avoidable frustration and uncertainty about whether the transport arrangements could have been resolved sooner had it allowed her to appeal at the time.

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Agreed action

29. To remedy the injustice set out above, the Council has agreed to carry out the following actions:
30. Within one month of the final decision:
• Apologise to Ms K for the frustration and uncertainty caused by the Council not putting her complaint through the appeals process and pay her a symbolic payment of £200 to recognise this.
31. Within two months of the final decision:
• Send written reminders to relevant staff in the Transport team to ensure they recognise that if a parent disagrees with the travel arrangements offered or made for their child’s needs, it should treat this as an appeal request and offer to take it through its appeals procedure, rather than its complaints process.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I found fault with the Council which caused injustice to Ms K. The Council has agreed with my recommendations to remedy this, and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman