Summary: Mrs X complains the Council has wrongly refused to provide travel assistance for her son. We found the Council failed to carry out the appeals properly or keep clear records of the panels’ decisions. This fault has caused Mrs X distress and uncertainty that her application has been properly considered. The Council has agreed to apologise to Mrs X, arrange a fresh appeal panel and take action to improve its service.

The complaint

1. Mrs X complains the Council has wrongly refused to provide travel assistance for her son who has special educational needs (SEN) and cannot safely walk to school or use public transport.

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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. 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

4. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
5. Mrs 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

Legal and administrative background

6. 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)
7. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
8. The statutory guidance recommends councils adopt a two-stage appeal process. It recommends at stage two that an independent appeal panel consider written and verbal representations. And the panel sends the parent a detailed decision sent setting out:
• the nature of the decision reached;
• how the review was conducted;
• what factors were considered; and
• the rationale for the decision reached.

(Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

9. The Council’s 0-25 Travel Assistance Policy says it does not provide travel assistance to children below the compulsory school age except where the child has an Education, Health and Care (EHC) Plan and the circumstances can be said to be exceptional. In considering applications from children aged 0-4 the Council will have particular regard to the following:
• The distance and journey time from the child’s home to their place of education and the cost of providing travel assistance to there
• What alternative means of facilitating attendance there may be
• The contents of any EHC Plan
• The best use of the Council’s resources and the competing claims upon them.

What happened here

10. Mrs X’s son Y has a diagnosis of autism and developmental delay. He has an EHC Plan and in September 2024 started attending a special school. Y was four at the time.
11. Mrs X applied for travel assistance as only Mr X drives, and Mrs X would need to use taxis to take Y to school as he would find it difficult to walk to the nearest bus stop and is too heavy to be carried. Mrs X said Y gets tired easily when he tries to walk and will drop to the floor.
12. The Council wrote to Mrs X on 16 May 2024 advising her application was unsuccessful. It said the panel had noted:
• The journey was reasonable and within the statutory travelling distance
• There was no evidence in the documentation of any reduced mobility
• As Y was of pre compulsory school age the Council policy was not to provide travel assistance expect where the child had an EHC Plan and the circumstances could be said to be exceptional
• Section B of Y’s EHC Plan regarding his sensory and physical needs had been considered
• Sections C and D of Y’s EHC Plan regarding Health and Social care needs had been noted
• The school named in Y’s EHC Plan was the nearest suitable school
• Parents are responsible for ensuring their child attends school and must take all action necessary to enable their child to attend
• There is no evidence Y cannot make this journey when supported by a parent. The general expectation is that the parent will accompany them or make other suitable arrangements for the journey to and from school.
13. The letter also advised Mrs X of her right of appeal.
14. Mrs X appealed this decision and provided additional supporting evidence from the medical professionals involved in Y’s care. The stage 1 appeal panel considered Mrs X’s appeal on 5 July 2024. The minutes show the panel considered the supporting documents including Y’s EHC Plan. They also noted the journey planner shows a travel time of 7 minutes with no bus included.
15. The minutes do not specifically record the panel’s decision, but set out the key factors to be included in the outcome letter sent to Mrs X. These are:
• The journey is reasonable
• The application is made as a low income family and the evidence is sufficient.
• Mrs X lives within a walking distance of the school but Y cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
• Children below compulsory school age are not eligible children, and there is no legal duty under the Education Act for councils to provide home to school transport to this age group even if they have an EHCP.
• There is no evidence to suggest that Y cannot make this journey when supported by parent.
• A parent's working pattern or the fact they have children attending more than one school, will not normally be considered a good reason for a parent being unable to accompany their child.
• The needs and provisions outlined in Y’s EHC Plan have been considered, however this does not impact on the panel's decision to overturn the original award.
16. The Council wrote to Mrs X on 15 July 2024 advising the panel had decided not to overturn the original award and that her stage 1 appeal had been declined. The letter listed most of the above points as the reason for the outcome. But made no reference to the panel’s view that although they live within walking distance of the school Y could not reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
17. The letter also set out how the Council would consider requests for travel assistance for children below compulsory school age but did not set out how it considered Mrs X’s particular case.
18. Mrs X was not satisfied with this response. In early August 2024 she asked for her request to be considered by a stage 2 appeal panel. She noted that although Y was not currently of compulsory school age he would be 5 in November 2024 and that his EHC Plan gave clear reasons why travel assistance would benefit him.
19. Mrs X also disputed the journey was reasonable for Y. He is unable to walk the distance from home to school without becoming distressed or falling over multiple times. Mrs X said Y does not cope well on buses as he struggles with noises and becomes extremely distressed, and that the family was not in a position to pay for taxis each day.
20. She noted they had provided evidence from Y’s physiotherapist and paediatrician regarding Y’s mobility issues and falling over, as well as his lack of awareness of danger. They had exhausted all options for childcare and had no support network due to Y’s complex needs. Mrs X asserted travel assistance would benefit Y in having a routine which would then enable him to better cope at school.
21. The stage 2 panel considered Mrs X’s appeal on 23 September 2024. The minutes note the panel discussed all of the evidence and supporting documents. As with the minutes of the stage 1 appeal there is no record of the panel’s actual decision. Instead the minutes again set out the key factors to be included in the outcome letter sent to Mrs X. These include most of the factors set out in the stage 1 appeal minutes, with the following additional comments:
• The medical letter was considered. In line with the Children and Young People’s Travel policy
• Y is not eligible on the ‘extended rights’ basis because their home is too close to the school.
22. The Council wrote to Mrs X on 23 September 2024 to advise the panel had decided to uphold the original decision of declined. It said a formal letter with details of the decision would be sent in due course.
23. Mrs X chased the Council for a formal decision letter in October 2024 and then made a complaint about the delay in issuing a decision in early November 2024. The Council sent Mrs X its formal decision on her stage 2 appeal on 8 November 2024.
24. Mrs X then made a formal complaint about the decision to decline travel assistance. Mrs X asserted the statutory walking distance did not apply as they had provided evidence that Y struggles with walking and dropping to the floor, headbanging, managing his emotions and becoming dysregulated. She said they attempted the walk home and it took over an hour with Y falling over 26 times.
25. In addition, Mrs X questioned the Council’s consideration of Y’s EHC Plan and the supporting evidence provided. The outcome letters said that these had been noted by the panels but gave no reasons why they were not considered sufficient to award travel assistance. She also advised the Council that Y was now 5.
26. The Council responded to Mrs X’s complaint and advised it could not comment on the panel’s decision. It said the outcome letters indicated the evidence submitted was reviewed and considered but did not meet the requirement to award travel assistance.
27. In relation to the delay issuing an outcome letter following the stage 2 appeal, the Council said it was processing an unusually high number of appeals. It apologised for any inconvenience caused by the delay.
28. As Mrs X was not satisfied by the Council’s response she asked for her complaint to be considered further. The Council responded in early January 2025 and advised that every appeal is reviewed thoroughly, taking account of the individual circumstances of each case.
29. The Council also referred to Government guidance on the eligibility criteria for free home to school travel. Mrs X asserts Y meets the criteria for free home school transport and has asked us to investigate her concerns.
30. In response to my enquiries the Council acknowledged its policy says travel assistance may be provided to pre-schoolers who have an EHC Plan in exceptional circumstances. It is unable to provide a specific criteria or examples of what constitutes exceptional circumstances. The Council says each case is assessed individually and decisions are based on the unique circumstances of the child involved. And that it takes into account various factors relevant to the specific situation. The Council has not said how this was applied to Y’s case or why he was not considered exceptional.
31. The Council also acknowledged the appeal raised concerns specifically related to Y’s ability to walk to school and says this was noted during the appeal. When asked about inconsistent comments in the stage 1 and stage 2 appeal minutes regarding ability to walk to school the Council suggests the comments reflect different aspects of the discussion or perspectives presented.
32. It also accepted the comment in both the stage 1 and stage 2 minutes to that Y’s EHC Plan does not “impact on the panel's decision to overturn the original award” was not clear and may cause confusion. It suggests the comment was intended to reflect that the appeal was not upheld and that having considered Y’s EHC Plan the panel did not find sufficient grounds to change the original decision.
33. The Council says that when Y turned five the eligibility team reviewed the case. It says the consensus was to uphold any travel assistance on the grounds previously identified.
34. In relation to Mrs X’s concerns about the journey planner used to calculate the route and journey time the Council says it uses an application which provides walking or bus routes. It acknowledges it should have queried whether seven minutes was correct for a journey measuring one mile and believes this was an error in the application. Using an alternative system shows a walking journey of 21 minutes.

Analysis

35. The Ombudsman is not an appeal body. In cases such as this, our role is to decide whether the appeal panels followed the correct procedure in making its decision. Based on the documentation provided, I have several concerns about the way the Council has dealt with Mrs X’s application for travel assistance.
36. When Mrs X first applied for travel assistance Y was below compulsory school age. There is no legal duty under the Education Act for councils to provide home to school transport to this age group. However, the Council’s policy says it can however award travel assistance to pre-schoolers who have an EHC Plan in exceptional circumstances. The Council has not explained what it would consider to be exceptional circumstances or why it did not consider Y’s circumstances were exceptional.
37. The Council’s records of its assessment and consideration of Mrs X’s application on appeal are confusing and contradictory. This lack of clarity is exacerbated by the fact the minutes of the appeal panels at both stages do not record the panel’s actual decision.
38. Although Y lives within a walking distance of the school the Council was satisfied at each stage that he cannot reasonably be expected to walk to school because of his special educational needs, disability or mobility problem. However it also states there is no evidence to suggest that Y cannot make this walking journey when supported by parent.
39. The minutes of both stages of appeal also record that they have considered the needs outlined in Y’s EHC Plan but this “does not impact on the panel’s decision to overturn the original award.” As the original decision was to decline travel assistance this would suggest the appeal panels had decided to award travel assistance. But the Council says the panels upheld the decision to decline assistance.
40. I am not satisfied the Council has adequately explained these contradictory statements. Based on the records available I cannot be sure the panel properly considered Mrs X’s application, which is fault.
41. The Council’s failure to identify an error in the journey planner is also fault. This error meant the panel were incorrectly advised Y’s journey to school was a seven minute walk when it is actually considerably longer than this.
42. It is also of concern that the Council did not give Mrs X an opportunity to attend the panel hearing and put her case in person. The statutory guidance is clear that councils should give parents/carers the opportunity to attend panel hearings. The Council's home to school transport policy says the stage 2 panel will consider written and verbal representations from or on behalf of the applicant as well as from the council officer involved in the case. Failing to offer Mrs X the opportunity to attend the panel hearing is therefore a breach of the Council's own policy and the statutory guidance. That is fault.
43. In addition, although the Council’s policy says the stage 2 review is considered by a panel of three council officers, the minutes record there were only two panel members in this instance. This further breach in the Council’s own policy is fault. As was the delay in providing Mrs X with formal notification of the stage 2 panel’s decision and reasoning.
44. These faults have caused Mrs X distress and uncertainty that her application has been properly considered.

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Action

45. The Council has agreed to:
• Apologise to Mrs X for the distress she experienced due to the faults identified in this decision. 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 in my findings.
• Arrange for a further appeal panel to consider Mrs X’s appeal and give Mrs X the opportunity to attend should she wish to.
46. The Council has also agreed to carry out the following actions:
• Remind those dealing with school transport cases of the need to ensure parents/ carers are given the opportunity to attend appeal panel hearings should they wish to;
• Advise those dealing with transport appeals of the need to ensure the panel is quorate and of the need to keep clear records of the panel decision and reasons.
47. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

48. I find fault causing injustice. The Council has been asked to take actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman