Summary: Ms X complained the Council failed to reimburse her for the full cost of transporting her child to their education placement in 2023. We have found no evidence of fault. The Council offered Ms X a voluntary payment which she accepted at the time and did not appeal.

The complaint

1. Ms X complains the Council failed to reimburse her the full cost of taking her child, who has special educational needs and an Education, Health and Care (EHC) Plan, to and from their education placement. Ms X says the Council only paid for the part of the journey her child was in the car, not the return journey.
2. Ms X complains the Council has treated her differently from another family who she says receives a higher payment for a shorter journey.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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 Ms X and the Council as well as relevant law, policy and guidance.
6. Ms X and the Council both had an opportunity to comment on my draft decision, but did not do so.

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What I found

Home to school transport

7. 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)

8. The Department for Education has published statutory guidance (‘the Guidance’) for councils about home to school transport. This was revised in Summer 2023 and January 2024.
9. The Guidance states it is for councils to decide how they will arrange free travel for eligible children. The arrangements can include free travel on service buses, dedicated school buses, or taxis. The arrangements must be free of charge to the parent.
10. Legislation allows councils to discharge their duty in respect of an eligible child in a range of alternative ways providing they have the consent of the parent. For example, the Council might provide ‘expenses’ to enable a parent to make their own travel arrangements for their child or provide an escort. To ensure the arrangements are free, the Guidance says expenses “may” need to be sufficient to cover two return journeys per day. But the Guidance says there will be exceptions to this; for example, if a parent works close to a school and does not travel home after transporting their child. The Councils may refer to ‘expenses’ as a personal travel budget or mileage allowance.
11. The Guidance states councils should have an appeals process which allows parents to challenge decisions taken about their child’s travel to school. It states matters such as whether the travel the Council has arranged is suitable will be handled as appeals.

Council’s policy

12. The Council’s home to school transport policy says: “free transport will be provided to those children of compulsory school age and attending the nearest, designated or re-designated school for the home address, provided the distance between home and school is in excess of the statutory requirement for the pupil’s age”.
13. Statutory walking distances to the nearest or designated school are:
• Up to 2 miles for pupils up to the age of 8;
• Up to 3 miles for older pupils.
14. For pupils with EHC Plans, the policy says: “if determined, free transport or assistance with transport will be provided to the nearest suitable establishment indicated on the Plan on the basis of the individual child’s needs…Greater detail on Home to School transport for pupils with Special Educational Needs is attached as Appendix 1”.
15. A Direct Travel Payment (DTP) is available to families of children eligible for travel assistance from the Council including:
• Children with special educational needs who have been assessed as eligible to receive home to school transport
• Children who attend their nearest named school and live over the statutory distance to the school
• A child who is a boarder.
16. Appendix 1 contains the Council’s ‘SEN policy’ for students with an EHC Plan. Appendix 1 says transport arrangements may be:
• A DTP
• Independent Travel Training
• Public bus pass.
• Provision of contracted coach / minibus service.
• Provision of a seat in a taxi.
17. The policy includes a link to the Council’s website with more information about the DTP. The website says the DTP is calculated using banding based on mileage. A yearly amount is offered which then gives a daily amount based on the number of school days in the year and the number of days a pupil will travel. The website states it is voluntary to have a DTP.
18. Councils have discretion how to provide travel arrangements for eligible pupils. Sometimes councils will offer DTP’s which are set above the level of covering mileage expenses to act as an incentive for parents to choose this option, which is often more cost effective than the provision of council transport.

Ombudsman Report (19 001 498)

19. In 2020 we published a public report against a different council about the issue of whether transport expenses should cover two or four journeys where a parent does two return trips between home and school daily. In that case a Council was paying a mileage allowance for only two out of four trips, and we were not satisfied the Council had properly considered the parent’s appeal and whether its arrangements ensured ‘free transport’. In that case the Council had stated it was not able to provide its own transport, so the family disputed the payment was ‘voluntary’. We found it was not voluntary where no alternative was available. We found the Council’s policy was not clear and did not apply when the arrangement was not voluntary. We recommended the Council should pay mileage expenses for four journeys per day where the arrangement was not voluntary.
20. Since that report the Department for Education has amended the Guidance (in 2023) to also advise mileage expenses should usually cover four trips.

What happened

21. Ms X says her child attended an education placement 17 miles from home in 2023. Ms X says the Council paid a DTP of £1875.81 for 93 school days based on banding that gave a daily rate of £20.17.
22. Ms X says the mileage rate for 2022/3 and 2023/4 was 0.45p. Ms X says based on four journeys, at 17 miles each way, and 0.45p per mile, this equates to £30.60, not £20.17 per day. Ms X says she complained after realising another parent received a higher rate.
23. Ms X used the complaint, not the appeal route, and did not raise the complaint until June 2024.
24. In its stage one complaint response, the Council explained £20.17 was the correct daily rate under its DTP banding policy in place at the time. It said a new banding structure was in place from 2024 so Ms X should not compare recent payments to other clients. The Council said, ‘in addition to the banding, reimbursement is only made for the live journeys where the client is inside the vehicle’, meaning no payment was made for the return journey when Ms X had dropped off her child or the journey when she went to collect them.
25. Ms X was not happy with this explanation or a policy that payments only covered two of the four journeys she undertook each day. Ms X asked for the complaint to go to stage two.
26. At stage two the Council did not uphold the complaint, again stating that the DTP was based on the banding in place at the time and ‘it would not be correct for the payments to cover the legs of the journey where the child is not in the vehicle’.
27. The Council confirmed the banding at the relevant time for a DTP for a distance between home and school of 15-17.9 miles was £20.17 per day. It said the banding rates were applied to everyone in the same way.
28. The Council sent Ms X details of her DTP for 2024/5 stating this had been set at a daily amount of £30.60, based on 17 miles x 4 journeys x 45p per mile.
29. The Council’s response to our enquiries said it had changed its policy in 2024. It says that eligible pupils are offered travel assistance either in the form of a DTP or the Council providing a vehicle. It says this is done in a phone call so families can ask questions about both options. It says the DTP agreement also makes clear that the DTP can be cancelled at any time and a vehicle put in place.
30. Ms X told me she considers that her child could not use a council vehicle, and her only option was to drive her child herself.

Analysis

31. We have previously found that councils should be covering expenses for eligible children for four journeys if the parent must return home after dropping off the child. Amended Statutory Guidance in 2023 now confirms this is the expectation. The Council has altered its policy already for 2024-5 so its DTP does now cover four journeys. It accepts this was not its policy in 2023.
32. Ms X did not raise concerns about the policy until Summer 2024, when a friend received a higher payment. However, this is likely to be based on the Council’s new banding, which it told us was introduced in 2024.
33. Our previous report about four journeys was made on a finding the DTP was not voluntary on the facts of that case, because the Council had stated it could not offer its own transport. That is not the position of the Council here. The Council has stated a council vehicle can be provided. Ms X is aware of this as she has told me she does not consider her child would use a council vehicle.
34. As Ms X did not raise an appeal in 2023 when the decision was made to offer the DTP, her view about the suitability of a vehicle was not tested. We do not know whether the Council would have decided Ms X’s child could not use a council vehicle and therefore a mileage allowance or DTP would have been the only option, not a voluntary choice.
35. The law requires Councils to make travel arrangements for eligible pupils that are free of charge to the parent. The DTP in place for 2023 was £20.17 per day which for 4 x 17 miles equates to 29.6p per mile. Ms X has not provided evidence to show her costs exceeded this and therefore that the transport arrangements provided to her were not free. If Ms X considered the voluntary payment did not cover her costs, we would have expected her to raise this in 2023 when the payment was offered. The Council had no reason to consider Ms X was not consenting to the voluntary arrangements at the time.

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Decision

36. I find no fault or injustice. The Council offered Ms X a voluntary payment which she accepted at the time. Ms X did not appeal, which would have been the correct route if she considered either a vehicle or the DTP did not meet needs. It is not for the Ombudsman to now speculate on what an appeal decision would have been. There is not enough evidence to make a finding the offer of a vehicle or DTP was not suitable or that the Council did not discharge its transport duty to provide free transport arrangements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman