Summary: Miss X complained the Council failed to provide suitable school transport to her child. She said the Council failed to properly explain its decision, consider the family’s circumstances, or have regard for its duties under the Equality Act 2010 when making decisions about transport. We have found the Council acted with fault by failing to properly consider Miss X’s requests through its transport appeals procedure. We have made recommendations to remedy the injustice this caused.

The complaint

1. Miss X complained the Council failed to provide suitable school transport to her child, B. She said this affected his access to education and overall wellbeing.
2. Miss X said the Council had not properly considered the family’s circumstances, or had regard for its duties under the Equality Act 2010. Miss X also said the Council failed to explain its decision. She said this caused avoidable frustration and uncertainty.

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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. 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 discussed the complaint with Miss X and considered information she provided.
6. I considered information the Council provided about the complaint.
7. Both Miss X and the Council were able to comment on a draft version of this decision. I considered any comments received before making a final decision.
8. 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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Relevant legislation, guidance and policy

Transport arrangements for eligible children

9. 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)

Transport appeals

10. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. The statutory guidance recommends councils adopt a specific appeals process.
11. At Stage 1, the appeal is reviewed 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. This should clearly explain:
1. whether they have upheld the local authority’s original decision;
2. why they reached that decision;
3. how the review was conducted;
4. the factors considered in reaching their decision; and
5. any other agencies or departments that were consulted as part of the review.
6. Where they have upheld the original decision, they should also explain how the parent may escalate their appeal to stage two of the process.
12. At Stage 2, the Council should arrange for an independent appeal panel to review the case. The guidance says panel members should be independent of the original decision, though need not be independent of the local authority. It says the local authority should allow parents to attend the appeal hearing, virtually or in person, to present their case if they wish. If a parent does not wish to attend, the guidance says the panel should make its decision based on the parent’s written representations. Within 40 working days of receipt of the parent’s request, the appeal panel should notify the parent in writing of the outcome of the review. This should clearly explain:
1. whether they have upheld the local authority’s original decision;
2. why they reached that decision;
3. how the review was conducted;
4. the factors considered in reaching their decision; and
5. which other agencies or departments were consulted as part of the review, if any.
6. The letter should also make the parent aware of the right to complain to the Ombudsman, if they believe the authority has made a mistake in how it handled their case. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)
13. The Council’s Home to School Travel Policy confirms it has fully adopted the approach set out in statutory guidance.

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What I found

Summary of key events

14. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
15. Miss X’s child, B, has special educational needs. B has an Education, Health and Care (EHC) Plan, which the Council issued in March 2023.
16. In August 2023, Miss X applied to the Council for home-to-school transport for B, setting out how B’s needs meant he required this service. The Council approved B’s application in September 2023. This resulted in the Council commissioning a taxi service to transport B to School Z.
17. In November 2023, Miss X wrote to the Council. She asked if B could get a bus to School Z instead. She said B was reluctant to use the taxi service. The Council replied to Miss X, explaining it could not offer B a bus place. It said all the buses on routes in Miss X’s area, travelling to School Z, were full.
18. Miss X told the Council B was refusing the taxi service due to distress caused by travelling with unfamiliar individuals. Miss X said this had become a recurring problem, impacting B’s school attendance. She said she had to sometimes transport B personally to School Z. Miss X asked if she could accompany B in the taxi service, as she thought this would be the most viable option.
19. The Council agreed Miss X could travel with B temporarily to help B adjust. The Council said Miss X could travel with B to School Z, but would then have to make her own way home. It also said Miss X could travel home from School Z with B, but would have to make her own way there.
20. Later in November 2023, Miss X wrote to the Council:
1. Miss X thanked the Council for agreeing the temporary transport arrangement, allowing Mrs X to travel with B. Miss X asked if the Council could make this arrangement permanent, with some added adjustments.
2. Miss X said B faced challenges when settling in the taxi. She said her regular presence was essential to provide B with support. Miss X said she also had to drop B’s sibling off at nursery. She asked if the taxi service could pick her up and drop her back as part of the arrangement, to help her do both.
3. Miss X said her requests aligned with the Equality Act 2010 and the Children and Families Act 2014. She said the Council had a duty to consider making reasonable adjustments to support children with special educational needs. Miss X said her proposed arrangement was necessary for B’s wellbeing and school attendance. It would also help manage the family’s circumstances.
21. The Council responded to confirm its understanding of Miss X’s request. It said it would pass the matter to senior officers to consider. Miss X asked the Council to postpone the use of the taxi service until it made its decision. She also said B’s sibling’s nursery was not far from their home.
22. The Council considered Miss X’s request internally. It decided it could not accommodate four journeys for the family. It said its responsibility was to support B attending School Z, but not to support travel arrangements for other family commitments. It said the taxi service could provide a chaperone to help B settle. Alternatively, it could offer a personal travel budget, allowing Miss X to arrange her own transport.
23. The Council wrote to Miss X to confirm its decision. It said it could arrange for Miss X to accompany B for the first week, allowing Miss X to gradually withdraw support so a chaperone could take over. The Council said it could reinstate transport from the following week, if Miss X agreed. It provided details of a senior officer for Miss X to respond to the decision.
24. Miss X wrote to the Council again:
1. Miss X said the Council’s proposal was inadequate. She said it was not compliant with her request for reasonable adjustments, under the Equality Act 2010.
2. Miss X said B now refused to use the taxi service. She said she did not have a vehicle, having to share a car with other family members.
3. Miss X said the Council’s refusal was concerning. She asked how the Council had made its decision. She also asked how she could challenge the decision, and whether the Council could reconsider its position.
25. Internal records show the Council passed Miss X’s correspondence to a senior officer, who responded on the same day. The officer said another senior officer had heard Miss X’s appeal, which was not upheld, so there was no further right of appeal.
26. The Council responded to Miss X. It said the matter had gone through two stages of the appeal procedure and there was no further right of appeal. It provided a copy of the Council’s travel policy document and advised Miss X of her right to bring her complaint to the Ombudsman.

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Analysis

27. Miss X asked the Council to consider extending the temporary travel arrangements. Over a series of exchanges, the Council did not agree to this request. When it issued its final decision to Miss X, it told her it had considered the matter at two stages of appeal.
28. Miss X told me she was unaware the Council was considering the matter as an appeal at either stage, until it mentioned this in its final email to her. The correspondence I have seen corroborates this. The Council did not tell Miss X it considered the matter as an appeal until after it made a final decision. I have found the Council at fault for failing to notify Miss X it considered the matter as an appeal.
29. I have considered whether the Council’s consideration was otherwise compliant with the procedure set out in statutory guidance. The original decision was taken by a senior officer. While the Council communicated its original decision to Miss X in an email, it did not do so in a way compliant with the guidance set out in paragraph 11. The Council did not make clear its decision concluded the first stage of the appeal procedure. It did not make clear Miss X could proceed to a second stage of the appeal procedure, explain what this involved, or otherwise notify Miss X of her rights. I have found the Council acted with fault for these reasons.
30. On 22 November 2023, Miss X asked the Council to reconsider its decision. Two days later, on 24 November 2023, the Council referred Miss X’s request to senior officers. Internal correspondence shows senior officers responding that day, advising that Miss X’s appeal had been heard and not upheld, with there being no further right of appeal. The officers involved in this exchange were the same officers involved in making the original decision. This contravenes what the statutory guidance says about the stage two appeal being independent of the original decision. I have found the Council acted with fault for this reason.
31. Further, I have seen no evidence the Council convened an independent appeal panel. It is difficult to see how the Council could have convened an independent panel in the two days between receiving Miss X’s request and responding to it. Miss X told me she was not offered the right to attend a panel hearing or make representations. The Council has not provided any records to show how it made its decision. I have found the Council at fault for these reasons.
32. The Council sent an email to Miss X on 24 November 2023, explaining it had considered the matter through two appeal stages and there was now no further right of appeal. This email did not comply with the guidance in paragraph 12. The Council did not explain how it conducted its review, who it consulted, or how it weighed any information Miss X provided before reaching its decision. I have found the Council acted with fault for these reasons.
33. In sum, the Council did not adhere to statutory guidance and its own travel policy in multiple ways when considering Miss X’s requests, or when conducting the appeal procedure. These faults caused an injustice to Miss X. Because of the Council’s faults in handling this matter, Miss X cannot have confidence it gave her case proper consideration. The Council denied Miss X the opportunity to attend an independent panel hearing and make representations for the panel to consider. This is an injustice to Miss X, causing uncertainty about what would have happened if the Council had acted properly. I have recommended the Council act to remedy this uncertainty.

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Agreed action

34. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Offer Miss X a fresh appeal with an independent panel, including the opportunity to attend the panel meeting and make verbal representations. The panel should comprise of officers independent of the Council’s original decision. The Council should ensure the panel makes and communicates its decision in way that complies with statutory guidance and the Council’s own transport policy.
3. Remind relevant officers of the requirements of the statutory guidance and its own transport policy, concerning how to conduct transport appeals at stages one and two of the procedure.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman