Summary: Mr F complained the Council refused to provide home to school transport for his son (J) who has special educational needs. As a result, he has had to transport J causing a strain on his finances. Mr F also complained the Council failed to follow its appeals process and properly consider his evidence which caused him frustration. We found fault which caused uncertainty. The Council has agreed to hold a new appeal panel.

The complaint

1. Mr F complains the Council refused to provide home to school transport for his son (J) who has special educational needs. As a result, he has had to transport J causing a great strain on his finances.
2. Mr F also complains the Council failed to follow its appeals process correctly and failed to properly consider the evidence he provided which caused him frustration.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

7. I spoke to Mr F about his complaint and considered the Council’s response to my enquiries and the statutory guidance, Travel to school for children of compulsory school age 2024 (“the Guidance”).
8. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Home to school travel

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 the statutory walking distance from the school (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.
10. The Guidance says where the local authority determines that a child with special educational needs, disability (SEND), or mobility problem, would be able to walk if they were accompanied, they will not normally be eligible for transport.
11. The general expectation is that the parent will accompany the child or make other suitable arrangements for their journey to and from school. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves.
12. Where a local authority determines that a child could not reasonably be expected to walk even if they were accompanied, they are eligible for free home-to-school travel regardless of whether their parent would be able to accompany them or make other arrangements for their journey.
13. The Guidance says local authorities will need 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 special educational needs, disability or mobility problems.
14. Councils may ask parents to provide information, such as medical information or an education, health and care plan, which says why the child may not be able to walk to school. The Council must take this information into account when assessing a child’s eligibility.

Appeals process

15. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. The 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, an independent appeal panel should consider written and verbal representations. The panel’s decision should detail: its decision; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to the Ombudsman.

The Council’s home to school travel policy

16. 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. Their eligibility 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.
17. The Council’s policy sets out a two-stage appeal process in line with the Guidance.

What happened

18. Mr F’s son, J, is of secondary school age, has a diagnosis of autism and an EHC plan. J has hypermobility and flat feet which cause pain and difficulties with balance. He received free home to school transport. J lives with his mother and stepfather, Mr G.
19. The Government issued new home to school travel statutory guidance in January 2024. In June 2024, the Council reviewed J’s home to school transport. It decided that J was able to walk to school accompanied by a parent/carer. As the distance from his home to school was under three miles, he was therefore no longer eligible for home to school travel support. The Council wrote to J’s mother on 27 June 2024 advising this. It said J’s transport arrangements would cease at the end of the summer term. The letter said the family could request a stage 2 appeal.
20. Mr G appealed this decision on 11 July 2024. A SEND coordinator (SENCo) from J’s school wrote to the Council in support of the appeal. The SENCo said J struggled with walking any distance, had a phobia which could compromise his safety when walking and concluded that walking to school was not a suitable or safe option.
21. The stage 2 appeal panel was held on 25 September 2024; Mr G attended. The Council says the panel considered J’s EHC plan and statements from the SENCo, the Council’s school travel officer and parent.
22. The note of the hearing says the panel decided J “may struggle to travel to school alone, as stated, physically and the social aspects of J travelling alone, however the current measure undertaken by father should continue as the child is not socially at risk whilst accompanied by his parent.”
23. The Council issued its decision on 21 October 2024. The letter says the panel had considered that J was an autistic child with hypermobility; that J was unable to walk to and from school due to his flat feet; the detrimental impact of the termination of assistance with travel; and that J was not capable of travelling to school alone. But “in considering … whether to exercise their power of discretion the Panel was looking for any exceptional circumstances that applied to your individual case that persuaded the Panel you had a compelling reason to merit assistance. Your appeal was refused because the Panel decided that, despite these reasons, you had not made out a sufficiently strong case that it was necessary to grant you assistance with travel as an exception to the Policy.”
24. Mr F came to the Ombudsman.

My findings

25. 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.
26. I have therefore considered how the Council reached its decision and my view is there was the following fault.
27. The Council’s initial letter of 27 June 2024 contains an incorrect name and does not say why or when J’s transport arrangements had been reviewed. It does not refer to the new Guidance or set out whether or how that new Guidance had affected J’s eligibility. The letter says only that “as the distance is under 3 miles and [J] is able to walk” the travel assistance will cease. It does not explain how and why the Council had reached its decision that J could walk to school accompanied or show how it had taken into account J’s SEND. Nor does it say what information was relied on. This is fault. It made it difficult for J’s family to put together an appeal, as they had no clear idea of the information the Council had taken into account or how it had reached its decision to refuse J school transport. This is an injustice.
28. The Council failed to offer a stage 1 review of its June 2024 decision to cease the transport. In response to my enquiries the Council said it ensured parents were aware that there may be a periodic reassessment of their child’s eligibility. The Council considered that, in effect, the June 2024 letter was the stage 1 review decision. This is fault. A decision about eligibility is not the same as a review of that decision. There is no evidence that, in making the original decision, the Council had considered any information provided by the parent and it is unclear if it had been taken by an independent officer. It is not, therefore, a review. Failure to have a stage 1 review is not in line with the Guidance or the Council’s policy, so is fault. This meant the family missed out on an opportunity to put their case forward, or to submit additional information to be reviewed by an independent senior officer. This is an injustice.
29. The stage 2 appeal panel was held 55 working days after Mr G submitted the appeal. This is fault as it is 15 working days longer than the Council’s policy. This delay caused distress and frustration.
30. The panel’s decision letter says the panel took into account J’s EHC plan, but the supporting papers include only the report of J’s recent annual review. I therefore do not have evidence that the panel considered J’s full EHC plan. This is fault which causes uncertainty that the panel had all the information it need to consider J’s SEND.
31. The panel decision letter says the panel considered a statement of the case from the school travel officer. This statement says that J “does not meet the qualifying criteria” but does not explain why or which criteria or specify which information was used to reach that decision. This is fault.
32. Similarly, the panel’s notes do not record how the panel considered the SENCo’s letter, J’s SEND and his physical ability to walk. The Council focused on the home to school distance and that it considered J was able to walk accompanied. The law and guidance also require it to consider J’s sensory and behavioural barriers to walking and their safety, even when accompanied. There is no evidence it did so; this is fault.
33. The Guidance says councils should be sensitive to the particular challenges parents of children with SEND may face in accompanying their children to school. The notes record the Panel considered the parent’s circumstances but not how they considered whether the parents could accompany J safely. This is fault.
34. The panel’s decision letter fails to explain how and why the panel had reached its decision, what factors were considered and the rationale for the decision reached. This is fault.
35. The letter concluded that “Your appeal was refused because the Panel decided that, despite these reasons, you had not made out a sufficiently strong case that it was necessary to grant you assistance with travel as an exception to the Policy.” In response to my enquiries, the Council said the panel decision explains that assistance could not be granted as an exception to the policy. This is fault. The policy and Guidance is that a child is eligible for school transport if they could not be expected to walk due to their SEND even if accompanied. The Council or panel do not have to make an exception or use discretion to provide transport. It must show how and why it has decided that J can walk to school and is therefore not eligible.
36. The Council’s faults leave uncertainty over the decision to refuse J’s home to school transport and caused Mr F frustration. This is an injustice.
37. I have not made any service improvement recommendations as the Council has agreed to some we made recently.

Back to top

Action

38. Within a month of my final decision, the Council has agreed to:
1. apologise to Mr F for the frustration and uncertainty caused by its failure to properly consider J’s appeal. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended.
2. review J’s stage 2 appeal using new panel members, appropriately trained in the Guidance. If the panel decides to award school transport the Council should reimburse Mr F a mileage allowance for four journeys per day back to the start of the school year.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

40. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman