Summary: Ms X complained the Council has wrongly refused her application for home to school transport for her child who has additional needs. We have found no fault in the way the Council dealt with the matter. So have completed our investigation.

The complaint

1. Ms X complains about the way the Council refused her application for home to school transport for her child Y, who has additional needs. Ms X says the Council failed to consider supporting evidence or the significant difficulties the decision would cause the family. Ms X says the Council has made the decision on Y’s ability to walk to school. And it has failed to take account Y is a vulnerable child with special educational needs, has sensory and behavioural issues, and lacks road safety awareness.
2. As a result of the decision to remove transport, Ms X now has to collect Y early or late from school so she can take and collect her two other children from a different school. Ms X says this causes Y to become anxious and dysregulated which is distressing and overwhelming for them all.

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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 including the transport appeal documents, decision letters and Y’s Education, Health and Care (EHC) Plan.
6. I have considered relevant law and statutory guidance:
• Education Act 1996
• Travel to school for children of compulsory school age.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered 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. 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. Councils must consider cases where the 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.
11. 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)
12. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
13. 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)

What happened

14. Y has an EHC Plan and attended a primary school which was under a mile from their home. Y received free home to school transport while attending the school.
15. The Council issued a final EHCP for Y following an annual review as Y was transferring to secondary school. It noted Y travelled to school with their parent and siblings when at primary school but was moving to a specialist secondary school. It noted Y had ASD, associated social communication and interaction difficulties and challenging behaviour if deregulated.
16. In June 2024 Ms X made an application for transport to continue for Y on the grounds of special educational needs, disability, or mobility problem. Ms X said:
• The Council had arranged school transport for Y previously.
• Y could not travel independently and needed adult supervision.
• Y could walk a short distance if accompanied by an adult.
• Y had communication and behavioural difficulties and could become dysregulated and frustrated. So vulnerable if out in the community on their own.
• Y was sensitive to loud noises including alarms and other children shouting and screaming.
• Y had two younger siblings who attended a primary school about a mile away from their home. One of the other children has ASD. Ms X was a single parent, has a medical condition and no access to a vehicle to transport the children to school in.
17. The Council refused the application on the basis:
• Y was attending the nearest suitable education setting 0.9 miles away and did not meet the distance criteria of over three miles for aged 8 and over.
• Y could be reasonably expected to walk to school even with their SEN, disability or mobility problem even if they were accompanied by their parent.
• Y would be able to walk to school in reasonable safety if they were accompanied by their parent.
• It had considered the specific and unique circumstances experienced by Y. It noted Y had SEN that required an EHC Plan but considered their needs were not such it affected their ability to walk up to two miles. The Council noted the EHC Plan said Y was a physically healthy young person.
• It was a parent’s responsibility to accompany or make arrangements for their child to be accompanied to school if a child was unable to travel independently.
• It had not assessed there were any good reasons why Ms X could not go with Y or make other suitable arrangements for their journey. It said having children attending more than one school and work commitments were not normally considered good reasons for a parent being unable to accompany their child.
18. In July 2024 Ms X appealed and explained her concerns about Y travelling independently, Y’s SEN needs and difficulties in getting her children to school.
19. The Council refused the appeal on the same grounds as before stating it had taken Y’s needs as described in the latest Annual Review and EHC Plan into consideration. But they were not enough to prevent Y from accessing public transport. The Council said it had reviewed the previous documents provided and Ms X’s additional information from her appeal request.
20. Ms X complained to the Council. Ms X said Y was vulnerable, autistic and could not travel on public transport alone. Ms X explained she was a single parent with two other children. And the schools’ start, and finish times overlapped causing difficulties. Ms X provided a letter of support from Y’s school for an appeal. This explained Y’s significant vulnerabilities including finding public transport overwhelming.
21. The Council held a stage 2 panel hearing of Ms X’s appeal in November 2024. The appeal hearing was delayed as Ms X could not attend the September 2024 panel. The November 2024 panel was the next scheduled hearing which Ms X had been advised of and agreed to.
22. The Council told Ms X the panel’s decision. It had taken into account Ms X’s original request for school transport, the stage 1 appeal and parental information. Ms X had attended the panel hearing and explained her circumstances and Y’s needs and difficulties. Ms X referred to Y’s EHC Plan and anxiety if late for school. But the panel did not uphold Ms X’s appeal and agreed to the original decision to refuse school transport.
23. The Council said the panel considered the information provided to them. It noted the proposed journey was under statutory walking distance of 3 miles for a pupil of Y’s age. Additionally based on information it had about Y ‘s needs there was no evidence to suggest they would have considerable difficulty in walking and using public transport (accompanied as necessary). Or any other attributes in line with its policy that would make using public transport unsuitable.
24. In addition, there were no safety concerns about the route of the proposed journey. Therefore, it followed the Council would expect the parent to make their own arrangements.
25. The Council has provided the notes of the stage 2 panel hearing which supports the conclusions reached and decision made.

The Council’s comments on the complaint

26. The Council says it took account of Y’s needs as detailed in the EHC Plan and in the latest annual review. It acknowledged Y’s EHC Plan from 2018 says they have no sense of road awareness and danger. The recent EHC Plan from 2024 notes Y has no safety awareness. The Council says at very least this would suggest Y needs to be accompanied by an adult when travelling to and from school. But Council does not believe it has been sufficiently demonstrated that this requires the need for transport assistance.
27. The Council acknowledged Ms X’s concerns about her difficulties in getting other children to school at same time. But it has also to regard the statutory guidance which says reasons such as parents working pattern or fact they have children attending more than one school, on their own will not normally be considered good reasons for parent being unable to accompany their child. These apply to many parents and in most circumstances, it is reasonable to expect the parent to make suitable arrangements to fulfil their various responsibilities. The Council says based on the statutory guidance it does not believe that the parents’ concerns raised necessarily obliges it to provide transport assistance for Y.

My assessment

28. The Ombudsman is not an appeal body for school transport appeals, as statutory guidance says 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.
29. Statutory guidance confirms if a child has special educational needs 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.
30. The legal test for assessing transport on SEN, disability and mobility grounds is a walking test. The documents provided show the Council has considered this. The law and guidance also require it to consider sensory and behavioural barriers to walking. The evidence provided by the Council shows it has referred to Y’s special educational needs in the latest EHC Plan of 2024. The notes of the panel hearing record Ms X’s concerns about Y’s vulnerabilities and her own needs.
31. I am satisfied therefore in making its decision, the Council took account of the relevant guidance and information from Ms X. The Council followed the appropriate procedures when making this decision and I cannot therefore criticise it.

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Decision

32. I find no fault by the Council in this case.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman