Summary: Mr X complained about the Council’s decision to provide his son with free home to school transport. Mr X said the Council’s decision is flawed and it has wrongly relied on the walk from home to school being less than the statutory walking distance. He also complained about the Council’s policy not being compliant with statutory guidance. We find the Council was at fault for failing to properly consider Mr X’s son’s mobility needs and failure in the Council’s decision letters. This caused distress and uncertainty to Mr X. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mr X, complains about the Council’s decision not to provide his son with free home to school transport. Mr X said the Council’s decision is flawed and it has wrongly relied on the walk from home to school being less than the statutory walking distance. He also complains about the Council’s policy not being compliant with statutory guidance.

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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. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).
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 have considered all the information provided by Mr X and the Council.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and guidance

7. Council’s 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); and
• 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. (Education Act 1996, 508B(1) and Schedule 35B)

8. Where the council determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraphs 47 to 52)
9. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
10. The Council has adopted the appeals process recommended in the statutory guidance. The guidance recommends:
• 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)
11. The Ombudsman issued a focus report about school transport issues in 2017. This focus report stated “for children with special educational needs and disability, ensure not just their mobility but any health and safety difficulties associated with their special educational needs or disability are considered.
12. 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. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement.

Summary of the key events

13. Mr X applied for transport for his son, Y, in February 2024. Y is six years old, and Mr X said Y had:
• cognition and learning difficulties;
• physical difficulties;
• social, emotional and mental health needs;
• speech and language and communication difficulties;
• autism spectrum disorder; and
• difficulty walking or using public transport due to his behaviour.
14. The Council considered Mr X’s request and wrote to him the following month. It said his application had been unsuccessful. This was because it said Mr X lived within a reasonable distance from the school given Y’s age. It said travel assistance would be provided for children who attend their nearest qualifying school and the distance between their home address and school is over the statutory walking distance.
15. Mr X appealed the Council’s decision in March 2024. He said:
• the reason given to refuse was made on the basis of distance only and did not take into account Y’s special educational needs (SEN);
• Y’s autism significantly impacts his mobility and said he was unable to walk or stand for extended periods;
• the decision fails to mention the Equality Act and fails to indicate whether the Council had a duty under the Chronically Sick and Disabled Persons Act (CSDPA) 1970;
• the Councils policy fails to refer to the Equality Act and the CSDPA;
• his other child has health issues, and this can make walking with both children problematic. They are often delayed due to difficulties Y has walking and have had to resort to driving; and
• he attached some evidence. This included a witness statement from school, a school letter supporting a blue badge application, medical evidence for Y and his sibling, educational psychologist assessment, autism teacher assessment, speech and language therapy assessment, tribunal witness statement and a GP letter detailing Mr X’s health issues.
16. The Council reviewed Mr X’s appeal at stage one in March 2024. The minutes state the panel considered the evidence provided by Mr X, the school Y attends and his age, the EHC Plan, whether Y had any siblings with special educational needs to consider and the school they attend, the distance from home to school and what the journey from school looks like. But it noted that:
• there was no evidence of reduced mobility and Y’s EHC Plan stated he was able to walk, jump and run on the playground. Y was often taken out to the park and shops;
• the EHC Plan did not outline any mobility needs or support;
• they were a two-parent family and should be able to support the children to school being 0.3 miles;
• both parents were available during the morning and one in the evening and they have a family vehicle available; and
• the needs and provision outlined in the EHC Plan were considered. But it said this did not impact on the panel’s decision to overturn the original award or consider a discretionary award.
17. The Council wrote to Mr X with its decision. It again said it had dismissed his appeal as he lives within a reasonable distance of the school given Y’s age.
18. Mr X asked the Council to escalate his appeal to stage two for the reasons set out in his stage one appeal. He said the stage one had not taken Y’s SEN into account.
19. The Council reviewed Mr X’s appeal at stage two in April 2024. It was noted Mr X was present. The minutes stated:
• the panel had noted the entirety of the EHC Plan, in particular said it evidenced no physical or reduced mobility. Sections B, F, C and D of the plan were considered;
• the EHC Plan stated Y demonstrated a range of sensory sensitivities and could be overwhelmed and stressed;
• the panel noted Y’s autism, social anxiety, chronic constipation, restricted diet, sleep disorder and learning difficulties;
• the plan stated Y was able to walk, jump and run on the playground and had no mobility issues;
• section D stated Y needed constant supervision;
• both parents were available in the morning and one in the evening;
• the route to school was considered. This included use of footpaths and bridleways, as well as sections that use roads. The panel decided the walking route was safe and said Y was therefore not eligible on the grounds of unsafe walking route;
• the family vehicle was available which was currently being used;
• the panel noted when assessing whether a child of compulsory school age can walk the statutory distance, that special educational needs, behavioural difficulties or hidden disabilities had been considered; and
• the needs and provisions outlined in the EHC Plan had been considered. But it did not impact on the panel’s decision to overturn the original award.
20. The Council wrote to Mr X with its decision. It said:
• there was no evidence of reduced mobility and the EHC Plan did not outline any mobility needs or support;
• sections B, F, C and D of the EHC Plan were considered;
• the EHC Plan stated Y was able to walk, jump and run on the playground. It also stated B was often taken to church weekly and out to the park and shops;
• both parents are available during the morning and one in the evening and there is a vehicle available; and
• it had discretion to decide whether individual applicants have any exceptional circumstances that would justify departing from the general policy. It said it acknowledged the challenges Mr X faced but said Y need not meet the distance criteria.

Analysis- was there fault by the Council causing injustice?

21. The statutory guidance says the Council should consider a child’s SEN, disability or mobility problems. The guidance is also clear that a student does not need to have travel to school mentioned in the EHC Plan.
22. The Council’s initial decision letter only reference the distance the family live from school. This is fault and there is no evidence to suggest the Council properly considered Y’s SEN, disability or mobility problems. The stage one decision letter also referenced distance only. This is evidence of further fault. Both letters also failed to evidence that the Council had decided whether to exercise its discretion.
23. I acknowledge that the stage one and stage two panel minutes evidence the Council did give further consideration of Y’s needs and considered its discretion. This is detailed in paragraphs 16 and 19. But there was conflicting information. The Council said there was no evidence of reduced mobility and the EHC Plan did not outline any mobility needs or support. But Mr X provided them with a letter from school which stated Y had mobility issues. There is no evidence to suggest the Council has weighed up the difference between the information before making its decision that there was no evidence of mobility issues. This is fault. This has caused distress and uncertainty to Mr X.
24. Mr X said at stage two, the Council told him he could contact its complaints team if he was not happy with the outcome. He said this was not in line with the policy and he should not have to go through a further complaints process before having a right to complain to the Ombudsman.
25. The Council’s policy says if someone remains dissatisfied, further options are available to complain to the Council, Ombudsman and secretary of state. It states it is for the applicants to decide which of these to pursue. In this case the Council did direct Mr X to its complaints process and said if he was not satisfied with the response, he could complain to the Ombudsman. I acknowledge this is not in line with the Council’s policy which is fault. But I do not consider this to have caused significant injustice to Mr X. This is because he complained to us within one month of the Council’s stage two response.
26. Mr X has raised concerns with the Council’s policy not being compliant with the statutory guidance. The Council’s policy states parents are expected to accompany their children to school or college where necessary until they turn 18 unless there is a good reason why it is not reasonable to expect them to do so.
27. The statutory guidance says councils must consider cases where the parent says there are good reasons why they are unable to accompany their child and make a decision based on the circumstances of each case. It goes on to say when decided whether it is reasonable to expect the parent of a child with SEN, disability or mobility problems to accompany their child to school, councils should be sensitive to the particular challenges parents of such children face.
28. In my view the Council’s policy is compliant with the statutory guidance. It acknowledges that there may be a good reason why it is not reasonable to expect parents to accompany their child to school. It would therefore be down to the Council to take the statutory guidance into account when deciding what a good reason would be.
29. Mr X said the Council’s policy requires there to be exceptional circumstances for the provision of discretionary transport for children of school age. The statutory guidance states there is an expectation that councils will act reasonably in the performance of their functions. Councils should not have a blanket policy of never providing discretionary travel and should be prepared to consider cases where the parent says there are reasons why their child needs free travel to school. It acknowledges that councils will not usually be able to consider matters such as the parents working pattern, the cost to the parent of public transport, or the fact the parent has children attending more than one school, on their own, to be exceptional circumstances in which they will arrange travel on a discretionary basis.
30. I do not find fault with the Council’s policy for requiring there to be exceptional circumstances. This is in line with the statutory guidance. It is for the Council to decide whether and how to exercise its discretionary power.
31. Mr X also raised concerns with the Council’s policy for not referring to the Equality Act 2010. The statutory guidance says councils must comply with the Equality Act 2010 when exercising its school travel functions. It says councils must consider how its school travel decisions and policies affect people with protected characteristics and must have due regard to the needs to:
• eliminate discrimination against people with protected characteristics;
• promote equality of opportunity between people who have protected characteristics and those who do not; and
• foster good relations between people with protected characteristics and those who do not.
32. In my view the Council’s policy is inclusive and adheres to the statutory guidance. The policy details four categories of eligible children. This includes distance, low-income families, unsafe walking route and SEN or disability.
33. I have not recommended any service improvements. This is because we have made recent recommendations in February, June, July and August 2024. This includes;
• the Council agreeing to remind relevant staff of the need to clearly explain the reasons for its decision in its school transport appeal letters;
• the Council will remind staff to provide tailored decision letters for school transport decisions that take into account the age category of the applicant and will ensure assessments consider hidden disabilities or SEN/ behavioural difficulties that may affect walking as well as physical disabilities;
• the Council has agreed to arrange staff training for relevant staff on the Council's duties set out in the statutory guidance. This training should also include awareness of SEN and disability. It should also include the need to take account of disabilities and the impact on the child’s health and safety, as well as mobility, when assessing school transport applications; and
• the Council agreed to remind all officers who carry out stage one and stage two school transport appeal panels, and those who send decision letters of the requirement to consider all the evidence presented and properly record and evidence how it reached the decision, in line with statutory guidance.
34. I note that in this case the initial decision was made in March 2024 and the stage two response was provided in April 2024. Therefore, we could not criticise the Council for not following the service improvements noted above. We must give the Council time to implement this.

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Agreed action

35. To remedy the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• write to Mr X with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mr X £200 to acknowledge the distress and uncertainty caused to him by the faults identified in this statement;
• carry out a fresh stage two appeal for Mr X with a different panel considering all Y’s needs, in accordance with the statutory guidance;
• if the Council, following the fresh stage two school transport appeal panel decides to award Y with school transport it should consider making a payment to Mr X for reimbursement of any unnecessary expenses incurred taking Y to school since his initial application; and
• if the Council decides to award Y with school transport, it should write to Mr X within one month of the panel’s decision with any offer of payment.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. There was fault by the Council. The actions the Council has agreed to remedy the injustice caused. I have completed my investigation.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman