• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Recommended Action
• Draft Decision

The Ombudsman's final decision:

Summary: Mr X complained the Council refused to provide home to school transport for his child who has special educational needs and that it failed to follow the appeal process correctly. The Council was at fault. It failed to properly consider Y’s circumstances, to hold a stage one review and to properly record and explain its decision making. This leaves doubt over the decision reached. The Council has agreed to apologise to Mr X for the frustration and uncertainty caused, review Mr X’s appeal, review its processes and arrange training for relevant school transport staff and panel members.

The complaint

1. Mr X complained the Council refused to provide home to school transport for his child Y who has special educational needs. As a result, Mr X has had to transport Y himself, without reimbursement. Mr X also complained the Council failed to follow its appeals process correctly and failed to properly consider the evidence he provided which caused him frustration.

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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 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)
5. 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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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. I have given Mr X and the Council an opportunity to comment on my draft decision. I will consider any comments before making a final decision.

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What I found

Relevant law and guidance

8. 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)

9. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied.
10. Where the local authority 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)
11. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
12. 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 appealing to us.
  (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

The Council’s home to school travel policy

13. The Council’s home to school travel policy sets out that children with an Education, Health and Care (EHC) Plan do not have an automatic entitlement to free school travel support. The eligibility of a child for free school travel support is set out in statute and depends on the ability of the child to walk to school. Where transport provision has been agreed, the arrangements in place will be reviewed periodically in line with Council policy.
14. The Council operates a two-stage appeals process in line with the statutory guidance.

What happened

15. Mr X’s child Y is of secondary school age and attends a specialist provision within a mainstream school. Y has severe learning and communication difficulties and a diagnosis of autism, and an EHC Plan. Y received free home to school transport.
16. In June 2024 the Council reviewed Y’s home to school travel. It wrote to Mr X to say as the distance from home to school was under three miles and Y was able to walk independently (accompanied by a parent/carer as necessary). Therefore, the current transport arrangements would cease at the end of the summer term. The letter set out Mr X had a right of appeal and that he could request a stage two appeal.
17. Mr X wrote to the Council to request the reasons it had withdrawn Y’s travel which had been in place for three years. He asked what documents it had considered and for information on what policy changes had occurred. He said he wished to appeal but needed to understand the Council’s reasons. Mr X received no reply.
18. In mid July 2024 Mr X submitted an appeal. His case included:
    • The Council had not provided any reasons for withdrawing Y’s travel.
    • It had not offered a stage 1 appeal first.
    • Y could not be expected to walk to school due to their SEN and disability. Y had behavioural issues including unpredictable behaviour and difficulties regulating their emotions and would find the walk to school immensely difficult to cope with.
    • It would not be safe for Y to walk even with parent accompaniment as Y tended to walk in front, had no sense of danger and there would likely be sensory issues due to all the traffic.
    • Y has anxiety about getting to school on time and walking to school would exacerbate this.
19. Mr X also submitted a letter from Y’s personal assistant who stated walking on busy main roads was not safe for Y even if accompanied by an adult as Y can get upset and storm off, had sensory issues and was not aware of dangers.
20. The SEN Coordinator at Y’s school also wrote a letter of support. They said Y would find the journey on foot extremely difficult as Y would have to concentrate so much on keeping themselves safe that they would be exhausted before they even got to school. Y struggled to stay well-regulated on a normal day without this journey factored in. They said the extra sensory experience would be too great for Y to manage when they got to school.
21. Mr X also submitted a copy of Y’s EHC Plan which stated Y needed to be closely supervised on school visits and that Y did not seem to demonstrate an awareness of danger. It stated that Y’s father reported that Y struggled to understand the dangers of needing to cross the road safely and needed close supervision to do so.
22. The Council’s case to the Panel stated a review of Y’s eligibility in line with new statutory guidance was carried out by an officer. The reviewing officer gave consideration to any available information and evidence provided by the appellant and other Council departments and/or agencies. The outcome of the review was that Y did not meet the qualifying criteria.
23. The Council heard Mr X’s appeal in late October 2024. Mr X says at the appeal he asked the Council officer what information they had considered in deciding to stop Y’s travel and the Officer said it was based on Y’s EHC Plan. The notes record the Council officer said they looked at Y’s physical disability and EHC Plan. The notes record the Panel asked questions about Mr and Mrs X’s working hours and other children. They record the Panel decided Y’s EHC Plan said they enjoyed running and exercising so they could walk if accompanied. The notes said the parents should make an effort in taking responsibility for school runs and said the ‘additional documents taken into consideration but not outweigh change in guidelines and the authority’s case’.
24. The Council wrote to Mr X in early November 2024. The letter stated that the Education Appeals Panel decided the appeal should be refused. It said it considered the case put forward by the Council explaining why Y did not qualify for assistance under the Council’s school travel policy. It said the panel considered Mr X’s reasons for wanting travel assistance for Y including the medical circumstances as outlined at the appeal and that Y had an EHC Plan. It said ‘in considering whether to exercise the power of discretion the Panel was looking for exceptional circumstances that applied to your individual case that persuaded the Panel Y had a compelling reason to merit assistance. It said the appeal was refused because ‘the Panel decided that, despite these reasons, Mr X had not made a sufficiently strong case that it was necessary to grant Y assistance with travel as an exception to the policy’.
25. Mr X remained unhappy and complained to us.

Findings

26. The Ombudsman is not an appeal body for school transport appeals, that is the role of the Council. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong. If we find there was fault in the decision-making process, we normally ask a council to hear the appeal again. We do not come to a view on whether the appeal should be upheld.
27. Statutory guidance confirms if a child has special educational needs (SEN) or a disability, the Council needs “to assess eligibility on a case-by-case basis. The assessment should take account of the child’s physical ability to walk to school and any health and safety issues related to their SEN, disability or mobility problems”. It may take account of whether they would be able to walk to school if accompanied.
28. Mr X was left confused when the Council decided to remove Y’s existing entitlement to free home to school transport when Y’s circumstances had not changed. The Council failed to reply to Mr X’s request for its reasons. That was fault and caused him frustration.
29. The Council also failed to offer Mr X a stage 1 review of its initial decision. This meant he had no clear idea of the information the Council had taken into account or how it had reached its decision to refuse Y school transport. This was fault and was not in line with the statutory guidance or its policy.
30. The stage 2 appeal panel took place 56 days after Mr X requested an appeal. This was 16 days longer than the statutory guidance recommends. This delay was fault which caused Mr X frustration.
31. The notes of the Council stage 2 appeal panel do not record how the Panel considered all the information presented to it. The notes show the Panel considered Y’s mobility but fail to show how it considered Y’s SEN and disability. The notes quote the EHC Plan in relation to Y’s ability to walk but make no reference to Y’s disability or the references in the EHC Plan to Y not seeming to demonstrate an awareness of danger. The notes do not show how the Panel considered the SEN Coordinator’s letter or the letter from Y’s personal assistant. That is fault.
32. The statutory guidance, 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, says councils should be sensitive to the particular challenges parents of such children may face. Each decision should be made on the circumstances of that case. The notes record the Panel considered the parent’s circumstances and whether they could accompany Y but not how they considered whether the parents could accompany Y safely. That was fault.
33. The Council focused on the home to school distance and that Y is physically able to walk and can be accompanied by a parent. The law and guidance also require it to consider Y’s sensory and behavioural barriers to walking and their safety, even when accompanied. There is no evidence it did so; this was fault.
34. In the letter refusing Y’s transport, the Council failed to explain how and why it had reached its decision, taking into account Y’s SEN and disability. It failed to explain how it considered the letters it had received from Y’s personal assistant or school SEN coordinator. This was fault.
35. The Council’s letter also failed to explain how it had considered the evidence Mr X provided. It focussed on its discretion to make an exception to the policy. However, Mr X was not applying as an ‘exception’ but under the criterion that Y could not be expected to walk due to their special educational needs and disability. This was fault.
36. The Council’s faults leave uncertainty over the decision to refuse Y’s home to school transport and caused Mr X frustration.

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Recommended Action

37. Within one month of the final decision I recommend the Council:
    • 1. Apologises to Mr X for the frustration and uncertainty caused by its failure to properly consider his appeal. 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. Reviews Mr X’s stage two appeal using new panel members, appropriately trained in the statutory guidance. If the panel decides to award school transport the Council should reimburse Mr X a mileage allowance for four journeys per day back to the start of the school year.
38. Within two months of the final decision I recommend the Council:
    • 1. Reviews its processes to ensure where it decides to end school transport, it offers a stage 1 review and then if this does not uphold the review, offers a stage 2 appeal panel hearing.
      2. Provides training for school transport officers and panel members on home to school transport and the statutory guidance ensuring this covers applications on SEN/disability/mobility grounds and the need to consider health, safety, sensory and behavioural difficulties in deciding whether it is safe to walk, even when accompanied.
39. The Council should provide us with evidence it has complied with the above actions.

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Draft Decision

40. I find fault causing injustice for which I have recommended a remedy and service improvements.

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Investigator's decision on behalf of the Ombudsman

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