Summary: Miss X complained the Council failed to provide her daughter, Y who has an Education, Health and Care Plan with suitable transport. We have found the Council failed to consider the contents of the Plan when determining her travel needs. We have also found service failure by the Council as it failed to source a female driver. The Council will apologise and make a symbolic payment to remedy the injustice caused.

The complaint

1. Miss X complained the Council failed to provide her daughter (Y) who has an Education, Health and Care Plan (EHC Plan) with suitable transport from May to September 2024. Miss X said the Council pressured her to take a Personal Travel Budget (PTB) even though this was not a viable option.

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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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What I have and have not investigated

5. Miss X told the Ombudsman about her concerns with the transport provider contracted by the Council in September 2024. Miss X has not complained to the Council about this. I have not investigated this complaint now as they are new issues, and it is reasonable to allow the Council the chance to investigate.

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How I considered this complaint

6. I discussed the complaint with Miss X and considered the information she provided. I made enquiries of the Council and considered its response.
7. Miss X and the Council had the opportunity to comment on my draft decision. I considered any comments before reaching a final decision.

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What I found

Legal and administrative background

Special Educational Needs

8. A child or young person with special educational needs (SEN) may have an EHC Plan. This sets out the child’s or young person’s needs and what arrangements should be made to meet them.

Transport 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”. (Education Act 1996, 508B(1) and Schedule 35B)

Transport to education setting

10. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” (or that the Secretary of State directs) to facilitate the attendance of “relevant young adults” at institutions where the local authority has secured the provision of education for the adult concerned. Relevant young adult means an adult who is under 25 years old for whom an EHC plan is maintained. (The Children and Families Act 2014, section 82)
11. When a council finds it is “necessary” to provide transport for the young adult under section 508F, then the transport must be free of charge. (Education Act 1996 section 508F(4)

Council School Travel Policy

12. The Council’s policy says children with an EHC Plan should be transported to school in a manner that assists their readiness to engage in learning on their arrival at school and ensures both their comfort and safety.
13. The Council has a duty to transport eligible children to and from their main place of residence to their appropriate educational placement to allow attendance during normal school hours.

Fuel allowance

14. Where a child is entitled to transport, the policy states the Council can provide a fuel allowance for parents to take their children to and from school, where it is more cost effective than providing contracted, arranged or public transport.
15. The Council would pay parents two return journeys at 45p per mile. Where this is not cost effective, 17p per mile may be considered.
16. The allowance is paid subject to parental agreement to receive such an allowance. Where the amount paid is at 45p per mile, this is considered to cover the full cost to the parent of transporting their child.

What happened

17. Y is autistic and has attention deficit hyperactivity disorder. She has an EHC Plan which includes two days per week for therapeutic provision.
18. The EHC Plan states Y’s school noted that she found it very difficult to interact with male members of staff and had difficulty trusting and interacting with males. It was recorded that Y had not been able to access a Child and Adolescent Mental Health Services (CAMHS) intervention group when male peers had been present. Y was also reluctant to engage with any male members of her extended family.
19. The Council agreed to provide transport to the therapeutic provision. Miss X requested a female driver. The Council said its contractor could not accommodate this request.
20. On 5 May 2024, the Council offered Miss X a Personal Transport Budget (PTB) as an alternative option to a male driver.
21. The Council agreed to pay Miss X a travel allowance rate of 45p per mile. The distance from Miss X’s home to the provision was 18.788 miles per journey. A total of four journeys per day were required and Y attended the provision twice a week. This equated to £33.82 per day for reimbursement of fuel costs or for the family to make their own arrangements.
22. Miss X said she reluctantly accepted the PTB as the Council had offered no suitable alternative option.
23. On 20 May, Miss X complained to the Council. She said the Council had failed to provide suitable transport for Y and the PTB was not enough to cover the cost of a taxi. Miss X requested an increased PTB and asked the Council to consider an alternative contractor that could provide a female driver.
24. The Council responded to the complaint. It said the fuel allowance payment was sufficient and cost effective and in accordance with its policy. It said it could not increase the PTB. It said that once a female driver was available to cover the route to the provision, Y would be moved to contracted transport.

Miss X’s complaint to the Ombudsman

25. Miss X said the Council had failed to provide suitable transport for her daughter and the PTB was not enough to cover the cost of a taxi, which was approximately £90. Miss X said she would have to take time off work on the days she transported Y to the provision, as it was not practical or financially viable to make four journeys. The travel time to the provision was one hour and therefore Miss X would wait for Y rather than travel back and forth. On the days Miss X could not transport Y, she relied upon family and friends and paid them £30.
26. Miss X confirmed that in September Y had moved to a contracted transport provider with female drivers.

Analysis

27. There is no dispute between the Council and Miss X that Y was entitled to transport from her home to and from the provision.
28. While the Council was entitled to contract its transport service to the transport provider, it remained responsible for ensuring Y was able to access the provision set out in her EHC Plan.
29. In response to our enquiries the Council said the provision of a female driver was not necessary for transport to be considered suitable. The Council has not explained how it reached this decision or how it considered the information in Y’s EHC Plan about her interaction with males and whether on this basis the transport offered by the Council was reasonably safe and suitable for Y. There is no evidence the Council considered Y’s specific travel needs and the potential impact to Y of providing a male driver. This is fault. If the Council had properly assessed Y’s needs, based on the evidence available in the EHC Plan, it is likely on the balance of probabilities it would have accepted the need for a female driver.
30. I acknowledge the difficulties the Council had in trying to source a female driver from its contracted provider. Though, based on the evidence available, there is doubt as to whether the Council did all it could to contact alternative providers and source a female driver. It remained the Council’s duty to provide Y with suitable transport.
31. The Council’s inability to secure a female driver was service failure. While the Council’s provider could not provide a female driver, this does not alter that it was fault and service failure not to provide suitable transport arrangements.
32. The law does not permit a Council to insist a parent of a child eligible for transport under s.508B provide transport themselves where this is not voluntary, even when expenses are offered. Section 508B is clear the Council must provide actual transport unless the parent consents to an alternative.
33. Miss X said she had no choice but to accept the PTB as the alternative option offered by the Council was a male driver, which was not suitable. Having reviewed the information available, I accept Miss X’s reasons for accepting the PTB.
34. The Council has clearly accepted there isn’t a suitable transport option and that it is why it paid Miss X a PTB and said it would add Y to a contracted service when a female driver was available. The Council did this in September.
35. The fault and service failure identified above have caused Miss X significant injustice. The Council failed to properly consider Y’s travel needs and failed to do all it could to source a female driver. This has left Miss X with the uncertainty of not knowing whether suitable transport would have been in place for Y between May and July, had the Council done what it should have done. It has also caused Miss X uncertainty as to whether the PTB was the best option available and whether the inconvenience caused to Miss X in transporting Y to the provision could have been avoided.

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Agreed action

36. Within one month of my final decision the Council will:
1. apologise to Miss X for the faults identified in this statement; and
2. make a symbolic payment of £300 for the injustice in the form of distress and uncertainty caused by the faults.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I have found fault by the Council causing an injustice to Miss X. I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman