Summary: Mrs X complained the Council failed to provide suitable transport to school for her child, Y. The Council was at fault for not recording how it considered Mrs X’s appeals, for poor communication and decision letters and for the way in which it provided a personal transport budget. This meant the family had to transport Y to school. The Council has now agreed to provide Y with suitable school transport. It has also agreed to apologise to Mrs X and make a payment to acknowledge the distress and frustration caused.

The complaint

1. Mrs X complained the Council failed to provide suitable transport to school for her child, Y. She says she was disadvantaged in completing the application because her first language is British Sign Language (BSL). She says the Council has provided a personal transport budget which they did not want rather than a vehicle. Mrs X says getting Y to school is causing the family significant difficulty and causes him distress.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). In this case I used my discretion to consider what happened since Mrs X first applied for transport in January 2023 as Mrs X was seeking to resolve the issues first by going through the appeal process and by applying again before coming to us.
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 considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
6. I gave Mrs X and the Council the opportunity to comment a draft of this decision. I considered any comments before making a final decision.

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What I found

The relevant law and guidance

7. 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. 
8. There is a right of appeal to The First-tier Tribunal (Special Educational Needs and Disability) against council decisions regarding special educational needs. We refer to it as the Tribunal in this decision statement.
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)
10. If only one school is named in a young person’s EHC Plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
11. Councils may make travel arrangements for an eligible child by offering a personal travel budget, provided they have the consent of the parent.
12. The arrangements should enable the child to travel in reasonable safety and comfort, and without undue stress, strain or difficulty, so that wherever possible they arrive at school ready to learn.
13. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
14. The 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 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 complaining to us.
  (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

What happened

15. Y is of primary school age. In late 2022 Mrs X successfully appealed to Tribunal to have a special school named in Y’s EHC Plan. Mrs X emailed the Council which told her that transport would be agreed to whichever placement the Tribunal agreed.
16. Mrs X submitted her application for school transport in early January 2023. In it she explained that due to her work pattern she could not take Y to school and her husband needed to transport their other children to different schools. She said Y needed constant supervision and requested a transport vehicle. The Council offered Mrs X and Y a bus pass.
17. Mrs X appealed against the Council’s decision. She explained Y needed constant supervision and has difficulty in unpredictable and unfamiliar environments due to Y’s autism spectrum disorder. She said travelling by bus would make it difficult for Y to be in the correct state of mind for school. The Council has no notes of the appeal.
18. The Council wrote to Mrs X in mid-March 2023. The letter said ‘The panel have upheld your appeal as the additional information you provided does warrant a change in the original decision’. It went on to say ‘There has been no recent changes that would suggest [Y] is an eligible child for travel assistance via a different travel method and at the application stage we agreed to award a bus pass for [Mrs X] and [Y]. There is no evidence to suggest [Y] cannot continue to travel by public transport’.
19. Mrs X asked to go to stage 2 of the appeals procedure. She asked the Council to consider a minibus or taxi for Y instead of a bus pass. Mrs X reiterated why a bus pass was not suitable and provided supporting evidence including statements from those at the Tribunal which said the Council agreed to provide transport for Y to the named school.
20. The Council wrote to Mrs X in late April with the outcome of the appeal. The Council has no notes of the appeal hearing. The letter said ‘The panel has dismissed your appeal, as the additional information you provided does not warrant a change in the original decision’. It went onto say ‘The panel have upheld your original award of a personal transport budget - petrol allowance for Y, as the additional information you provided does not warrant a change in the original decision’.
21. Mr X therefore transported Y to school, claiming a petrol allowance. Mrs X says this was particularly stressful due to the need to take their other children to different schools making it difficult to get Y to school safely and calmly.
22. In July 2023 Mrs X applied again for travel assistance. The Council treated this as a duplicate application and took no action. The family continued to receive the personal travel budget. In March 2024 Mrs X complained to the Council that she had requested taxi transport which was agreed at the Tribunal hearing. She had applied again but heard nothing further. Mrs X said she struggled to get in touch with school transport staff due to her deafness.
23. The Council responded to Mrs X’s complaint in April 2024. It said it had no record of her transport appeal being successful. It apologised for the service levels she had experienced. Mrs X remained unhappy, and the Council reviewed the complaint at stage 2 of its complaints procedure. It said Mrs X had agreed to a personal transport budget and Y had a 98% attendance rate at school so it saw no reason to change Y’s transport. It provided Mrs X with our details for if she remained unhappy. Mrs X then complained to us.
24. In response to our enquiries the Council said it did not record minutes of appeal hearings at the time but since 2024 had implemented robust processes to ensure appeals were fully documented. The team has undergone significant restructuring with permanent staff who have received ongoing training to ensure compliance with the Department for Education guidelines. In addition, the Council introduced a new transport policy which it implemented in September 2024.
25. The Council also said it had reviewed Y’s case and would offer suitable school transport to address Mrs X’s concerns as it recognised a personal transport budget may not now meet the family’s needs. This would be a seat on shared transport, either via an existing route or by sourcing a new route.

Findings

26. When Mrs X completed the initial application form for school transport, she requested a transport vehicle. There is no evidence Mrs X was disadvantaged by her deafness in completing the application.
27. Y is attending their nearest suitable school which is over three miles away. They therefore qualified for school transport and the Council initially awarded Y a bus pass. Mrs X appealed this decision. The Council failed to keep any records of how it considered Mrs X’s appeal for school transport at stages 1 and 2 of the school transport appeals process. This was fault.
28. The letters to Mrs X following the appeals are contradictory. The letter following the stage 1 appeal says it was upheld but then reiterates the award of a bus pass. The stage 2 decision letter says the appeal was dismissed but awards a personal transport budget instead of a bus pass. Both letters failed to explain how the appeal panel considered Y’s needs and Mrs X and the family’s circumstances. This was fault and calls into question whether the Council properly considered the family’s circumstances and reasons for the appeal when it made its decisions.
29. The statutory guidance says councils should make parents aware they may complain to us if they believe the council made a mistake in the way it handled their case. The stage 2 letter makes no reference to this. This was fault and meant Mrs X missed the opportunity to have her complaint considered by us much sooner.
30. Following the stage 2 appeal the Council offered Mrs X a personal travel budget. The Council must provide actual transport unless the parent consents to an alternative. It can offer mileage payments where the parent agrees. Mrs X may have completed the application for a personal travel budget but this was because she believed she had no other option, given she had completed the two stage appeal process. There is no evidence the Council had the parents’ agreement before deciding they should have a personal travel budget. This was fault.
31. Y’s attendance at school is high but this is because Mr X has transported Y to school. Although Mr and Mrs X have received a personal transport budget to cover the cost of taking Y to school, Mrs X says this has been stressful for both Mr X and Y. In response to our enquiries the Council has reconsidered Mrs X’s case and has agreed to offer suitable home to school transport on a shared minibus. However, this does not remedy the distress and frustration caused to Mrs X by the Council’s faults.
32. The Council has already taken action to review its school transport appeals process including ensuring hearings are documented and through staff training. I have therefore not recommended any further service improvements.

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Agreed Action

33. Within one month of the final decision on this complaint the Council has agreed to:
1. Apologise to Mrs X and pay her £500 to acknowledge the distress and frustration caused by the Council's faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
2. Provide an update and expected timescales on the arrangements for Y’s school transport. We would expect the transport to be in place within two months.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. The Council was at fault causing injustice. The Council has agreed to take action to remedy the injustice this caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman