Summary: We found fault with the Council’s initial decision to end Mrs D’s daughters’ Personal Travel Budget for home to school transport and to provide them with shared transport instead. It failed to show discussions it claimed it had with her about it. There is no injustice which needs remedying.

The complaint

1. Mrs D complains about the Council’s failure to properly consider her daughters’ home to school transport when it decided to:
1. end their Personal Travel Budget; and
2. provide them with shared transport instead.
2. As a result, this caused them all a great deal of stress, inconvenience, and worry, as well as costing them financially.

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The Ombudsman’s role and powers

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. 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)
5. When considering complaints, we make findings based on the balance of probabilities. This means we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

6. I considered all the information provided by Mrs D along with the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs D and the Council. I considered their responses.

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What I found

Home to school transport

7. Councils have a duty to provide free home to school transport for ‘eligible children to qualifying schools’. (Education Act 1996, section 508B)
8. Various categories of eligible children are defined in Schedule 35B of the Education Act 1996. Children are eligible for transport if they:
• live beyond walking distance of their nearest suitable school (two miles for a pupil under 8 or three miles for a pupil over 8);
• live within walking distance of the school, but cannot be expected to walk because of their special educational needs or disability; or
• live within walking distance of the school but cannot be expected to walk because of the nature of the route.
9. Councils have a power to provide transport for children who are not eligible children. (Education Act 1996, section 508C)
10. The Government issued statutory guidance which councils must follow unless they have good reason. (‘Travel to school for children of compulsory school age. Statutory guidance for local authorities’ issued by the Department for Education in June 2023)
11. The guidance says a child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem if they would be able to walk to school if accompanied.
12. The guidance says councils should not have a blanket policy of never arranging free travel for a child who would be able to walk to school if accompanied. Councils must consider cases where a parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case.
13. The guidance acknowledges children of secondary school age would normally be expected to walk to school unaccompanied and this might, for example, enable parents to increase their working hours. When deciding whether it is reasonable to expect the parent of a child with special educational needs, disability, or mobility problem to accompany their child to school, councils should be sensitive to the particular challenges parents of such children may face.
14. The guidance says councils must consider the Equality Act 2010 and the public sector equality duty to eliminate discrimination and promote equality of opportunity when making decisions.

Council’s Home to School Travel Assistance Policy 2022/23

15. A Personal Travel Assistance Budget is money to help a child get to school. A person may be eligible for a child with an EHC plan and are assessed as eligible to receive home to school travel assistance. It is granted at the discretion of the Council.
16. It is a payment designed to help parents make any arrangements needed and used to help the child gain access to school. The Council reserves the right to withdraw it where attendance at school is unsatisfactory, or where they have reason to believe the funding is not being used to help the child attend school.

What happened

17. Mrs D has two daughters, E who started secondary school in October 2022, and F, who started school in December. Both have Education, Health and Care plans (EHC plans) which named the same school they should attend. The school was more than 30 miles away.
18. Mrs D applied for home to school transport for E in November 2022 and F in March 2023. She explained E and F would find public transport overwhelming and too loud. They both have anxiety and cannot travel together as they fight.
19. She complained the Council agreed a Personal Transport Budget (PTB) for both of them which was confirmed by a Stage 2 appeal panel hearing in August. This paid Mrs D an allowance to cover the travel cost of her and her husband separately taking the children to and from school. The panel confirmed there was enough evidence to justify a separate arrangement for E and F. It also accepted directly offered transport was not an option because of the ‘girls’ complex needs’ although suggested a review of the arrangements, ‘in time/end of the academic year 2023/24’.
20. In February 2024, the Council decided it would end the PTB and commission a shared taxi for them instead. This was because it considered Mrs D was not complying with the terms of the PTB. Mrs D was unhappy with this decision as there was no previous discussion with her about it. She only found out about it when a taxi appeared outside the house one morning and told her they had the contract to take E and F. The taxi would take them both, another child, and a chaperone to and from school.
21. The Council claimed there were numerous discussions with Mrs D in early 2024 about ending the PTB and the provision of a shared taxi. It claimed there were several telephone conversations with a transport manager and Mrs D. It also said it was not practice to record calls or take notes of them. The Council pointed out Mrs D had the chance to comment on the evidence during the June 2024 stage 2 appeal.
22. When reaching its decision in February, the Council claimed it had evidence from the school of the parents transporting both children in one car. The Council provided the evidence it relied on when making this decision. This included:

• An email from the school in December 2023. This said there was friction between the two sisters and Mrs D and her husband had to drive them in separately on ‘multiple occasions’. There was no ‘schedule’ for this which depended on how E and F were. It also confirmed ‘they have been going home together, yes’.
• An email from an SEN officer who felt E and F did not need separate transport. The officer noted they have been transported to and from the setting together. The officer noted attending an annual review when Mrs D’s husband collected them while Mrs D remained on the virtual meeting.
• An email from Mrs D dated 31 October 2023 which said, ‘I then return to collect them both from school in the same car and back to home’.

23. It said this was the change in circumstances between the appeal hearing in August 2023, and its decision in February 2024. This was evidence of the parents transporting E and F together in one car which contradicted the original PTB application. It would have reviewed the arrangement anyway before the end of the academic year end of 2023/2024.
24. Mrs D told the Council why its arrangement was unsuitable and refused to allow her daughters to travel in the taxi. As a result, the Council cancelled it. It said it was her responsibility to get E and F to and from school. The Council reviewed its decision and found evidence of the girls travelling together ‘at times’ during the academic year and since the previous summer.
25. In April, a pastoral support worker at the school confirmed both children were transported separately in the morning but at collection time, Mrs D took both home. While this could work, the support worker explained there were several occasions when staff at the school, or the social worker, were called to transport them home. The support worker also pointed out E and F could not be transported home by a funded taxi and travelling together in the mornings would affect them accessing school. The same month, Mrs D appealed the decision stating it was made with no discussion or consideration of the children’s needs
26. In June, the stage 2 appeal hearing upheld the Council’s decision because it was in line with its Home to School Travel Assistance Policy. It found Mrs D had said: E and F travelled together on the way home, with some occasional help from the school or social worker; this was possible when they were tired at the end of the day so could ease possible disruption; a chaperone would help avoid such disruption. It also found their ability to self-regulate would continue to improve and travel training could prove helpful. It concluded a directly offered service was appropriate. There was no evidence they could not adapt and develop to use this service.
27. Mrs D was unhappy as she believed the Council failed to meet its legal duty of providing her daughters with free home to school transport. Instead, Mrs D was expected to meet the cost of travel herself as her and her husband now had to use their own cars. She said they took the children to and from school between February and July.
28. She tried not to use the taxi service as it was ‘hit and miss’ with the children as some days the school called to say E and F refused to get in it. This meant she had to drive all the way to school to collect them. This happened at least twice a week. They were fine going to school because the other child only went to school three days a week. She believed a larger taxi was needed for them all and the chaperone.
29. The Council confirmed it provided free home to school transport for both children under its policy. The offer of the taxi service remained.

My findings

30. I found the following on this complaint:
1. The Council provided evidence in support of its claim that the school told it E and F were being transported together in one car. It also provided evidence from a SEN officer about them travelling together along with Mrs D’s own email about them travelling home together at the end of the school day.
2. I remain satisfied there was no evidence of the Council telling Mrs D of this evidence and allowing her the chance to comment on it. It provided no evidence of putting this evidence to Mrs D for comment at the time.
3. I would also have expected it to have explored the claims made by the school and the SEN officer with Mrs D first before making this decision. This would have given her the chance to clarify whether they were taken in just one car and if they were, the reason for that, whether it was repeated, and what had happened during the journey. It would have allowed her to explain E and F were only travelling together in the car at the end of the school day because at this point, they were too tired to argue and fight.
4. I remain satisfied there was no evidence of the claimed discussions with Mrs D about ending the PTB or starting the taxi provision before it reached its February decision.
5. It failed to provide minutes of either the August 2023 hearing or the June 2024 hearing. The Council accepted minutes were not taken and was now taking minutes at Stage 2 appeals as a matter of good practice.
6. On balance, I am not satisfied there was any significant outstanding injustice to Mrs D which needed remedying. This was because: i) the Council had made an offer of transport provision in February which Mrs D rejected; ii) it went on to review its decision in June so considered any points she might have made earlier but for the fault; iii) the decision given to her showed it took account of her evidence and the possibility of travel training; iv) following this decision, Mrs D started to use the provision; v) the Council confirmed it now required minutes of the hearings to be made.

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Final decision

31. I found fault on Mrs D’s complaint against the Council. The fault caused no outstanding injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman