Summary: The Council was at fault for failing to consider requests that Mrs X made for reasonable adjustments to her daughter’s school transport provision. It also mishandled her complaints. It has agreed to reconsider her requests and make a symbolic payment to recognise her injustice.

The complaint

1. The complainant, whom I refer to as Mrs X, complains that the Council:
• Refused to make reasonable school transport arrangements for her daughter, whom I refer to as Y.
• Failed to consider (or make adjustments for) her own disability, which prevents her from driving Y to school.
• Threatened to cancel Y’s educational provision if Mrs X did not drive her there.
• Refused to cover the ‘real’ costs of someone else driving Y to school.
• Mishandled her complaints.
2. Mrs X says this matter is causing her health problems, as she is being ‘forced’ to “drive hundreds of miles each week with a spinal injury and in severe pain”. She also says she is losing the opportunity to secure work because of the driving time.

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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 a council’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)
5. 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

6. I considered information from Mrs X and the Council. I also considered the Council’s duties under relevant legislation and guidance.
7. 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

The Council’s responsibilities

8. Councils must arrange suitable education for children who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements (Education Act 1996, section 19). We refer to this as ‘section 19’ or ‘alternative’ provision.
9. Councils must consider cases where a parent says there are good reasons why they are unable to take their child to school (or to make other suitable arrangements for their journey) and must make decisions according to the circumstances of each case. (Statutory guidance, ‘Travel to school for children of compulsory school age’, paragraph 50)
10. The Equality Act 2010 provides a legal framework to protect the rights of individuals. It offers protection in the provision of services and the carrying out of public functions.
11. The Act makes it unlawful for organisations carrying out public functions to discriminate on any of nine protected characteristics, including disability.
12. The Act sets out a public body’s duty to make ‘reasonable adjustments’. These help a disabled person to use a service to a standard as close as it is reasonably possible to get to that usually offered to non-disabled people.
13. Service providers are under a proactive duty to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

What happened

14. In early November 2023, Mrs X was in dispute with the Council about the suitability of Y’s school. The Council believed the school was suitable, and Mrs B disagreed. She said Y would not attend the school. She had appealed the choice of school to the SEND Tribunal.
15. While awaiting the Tribunal hearing, the Council agreed to deliver a package of alternative provision to Y. This was planned to include two days of home tuition and three days of other provision with three separate providers.
16. The Council asked its ‘SEND placement and travel panel’ for funding to transport Y to her educational provision. It noted that one of her placements (one day a week) included transport, and her tuition (two days a week) would be at home.
17. The panel agreed funding for Y’s transport on the remaining two days a week. This amounted to £0.45 per mile, for the distance to and from the placements, for the rest of the school year. The total was almost £2,500.
18. It appears that, around this time, Mrs X told the Council that the family home was unsuitable for tuition, as it was very small and busy. The Council arranged the tuition at Y’s school instead (around a five-minute drive from her home).
    
     
19. Later in November, Mrs X complained to the Council. She said:
• Y could not access her tuition, because “she will not enter the [school] premises …and [it] would traumatise her”.
• She could not drive Y to and from the two placements for which the Council had provided transport funding, because her medical conditions caused her great difficulty driving and sitting in the car for long periods. Both placements were around 45 minutes away from the family home.
• She could not ask a friend or family member to drive Y to her placements, because she did not know anyone who would be prepared to do this (as it would mean giving up eight hours a week).
20. Mrs X asked the Council to provide a taxi for Y to her placements (rather than the petrol money). She also asked it to arrange Y’s tuition in a different local venue (rather than the family home or Y’s school).
21. In December, the Council responded to Mrs X’s complaint. However, the school transport manager who responded said she believed she had been allocated the complaint in error. She said she would forward it to the Council’s SEND team to look into and respond.
22. There was no further response to this complaint.
23. In January 2024, Mrs X resubmitted her complaint. She also added:
• She had been paying a third party to drive Y to and from her placements because she could not do it herself. But the money the Council gave her did not cover what she had to pay the third party.
• Y’s tuition had fallen through because of the Council’s insistence that it be delivered in her school, which she refused to go to.
24. Mrs X asked the Council to either arrange taxis for Y or give Mrs X enough money to pay someone to do the driving.
25. The Council answered Mrs X’s complaint later in January. It said that, in its view, Y’s school was suitable as a venue for tuition, and was suitable for Y’s needs more generally. It also said that, as a suitable school place was available for Y (pending any different decision by the Tribunal), the Council’s offer of alternative provision and funded transport was a goodwill gesture, not a statutory duty.
26. Mrs X was dissatisfied and complained again. She said the Council had failed to consider her own needs (arising from her disability) when deciding transport provision, and therefore it had not met its duties under the Equality Act. She said driving Y to school was causing her serious physical distress.
27. The Council responded to Mrs X’s complaint two months later, in March. However, its response was about the wrong child (Mrs X’s son, rather than Y).
28. Mrs X contacted the Council about this, and it sent her a new response. It said that, as per the agreement she had signed the previous year, she was responsible for ensuring that Y got to her education each morning.
29. The Council also said that it was for Mrs X to decide how Y should get to and from school. It said there was no requirement that she drive herself.

My findings

30. Mrs X signed an agreement which said she accepted a payment (the cost of transport to and from two days’ alternative provision each week) and was then responsible for getting Y to and from that provision.
31. Mrs X says she was ‘forced’ to sign this. There is no evidence that this was the case. But I assume that, if she did not accept the payment, Y would not have been able to go to her placements and they would have been cancelled. This is unlikely to have amounted to Mrs X being ‘forced’ to sign anything.
32. The Council’s position is that a suitable school is available to Y and therefore its offers of alternative provision and transport funding are discretionary. I make no comment on this position, because that is not what Mrs X’s complaint is about.
33. Instead, I have focused on the issues Mrs B has raised: namely, the Council’s consideration of her complaints, and, in particular, how it dealt with her request for reasonable adjustments for her disability.
34. Even discretionary decisions should be made properly. And the Council has clear duties under the Equality Act to consider requests for reasonable adjustments.
35. The Council’s panel did consider the costs Mrs X – or, more generally, a parent who was able to drive their child to school – would accrue while Y was in alternative provision.
36. The Council also offered two different venues for Y’s tuition. Although Mrs X believes Y’s school is unsuitable, I cannot comment on this matter, as it awaits consideration by the Tribunal.
37. However, the Council did not:
• Consider whether, in light of the disability described by Mrs X in her complaints, it should make the reasonable adjustments she requested (either a taxi for Y or an increased payment to pay a third party to drive Y).
• Answer Mrs X’s complaints in a timely manner, or in a way which properly addressed the points she raised.
38. The Council was at fault for these things. It should now take action to remedy
    Mrs X’s injustice.

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Agreed actions

39. Within a month, the Council has agreed to:
• Reconsider the reasonable adjustment requests Mrs X made in her complaints, ensuring that it does so in accordance with its duties under the Equality Act.
• Write to Mrs X with its decision on her requests.
• Make a symbolic payment of £100 to Mrs X to recognise the frustration it likely caused when it mishandled her complaints.
40. Within two months, the Council has agreed to send us an action plan which sets out how it will ensure that the issues which arose in Mrs X’s complaint – specifically in dealing with reasonable adjustment requests and complaint-handling – do not happen again.
41. The Council will provide us with evidence it has done these things.

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Final decision

42. The Council was at fault, and that this caused Mrs X an injustice.

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Investigator's decision on behalf of the Ombudsman