Summary: Mr X complained the Council failed to suitably consider his application and appeal for home to school transport for his child. We did not find fault with the Council’s decision to refuse home to school transport for Mr X’s child. We did find fault with the Council failing to follow its process. The Council agreed to apologise to Mr X for failing to follow its process. The Council also agreed to provide training to staff about following its process and including relevant information about how to appeal decisions.

The complaint

1. Mr X complained the Council failed to suitably consider the impact of his child’s Autism Spectrum Disorder (ASD) when declining home to school transport for his child.

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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)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
6. Mr X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

Rules and regulations

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. 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.
9. 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.
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 will review the original decision. The Council will send 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 and the rationale for the decision reached. The Council says it will tell a person 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. The Council will then send a detailed decision 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)

Council’s policy on school transportation

13. The Council’s policy on home to school transport details that it follows the same principles as outlined in the Education Act in deciding whether to provide transport for a child.
14. The Council’s policy outlines that a person must make a formal application for home to school transport and it will consider such an application as quickly as possible.
15. The Council’s policy says that were it refuseds an application for home to school transport, parents or carers may seek a review of the decision. The Council says a parent has 20 working days from receipt of the decision to make a written request for a review. At Stage 1, a senior officer will complete the review and send its decision within 20 working days of receipt of the review request. This decision will include information about how an appeal can be made to Stage 2.
16. Following receipt of the Stage 1 appeal outcome, a parent or carer has 20 working days to make a written request for consideration of their case at Stage 2. At Stage 2, an independent appeal panel will consider the appeal within 40 working days of receipt of the appeal request. Upon convening the panel, the outcome of this will be provided within 5 working days.

What happened

17. On 10 July 2024, Mr X made a home to school transport request to the Council for their child with ASD, who I shall refer to as Y.
18. The Council refused Mr X’s application on 2 August 2024. The Council said Mr X’s application did not meet the eligibility criteria for the Travel Assistance Policy. The Council outlined how Mr X could appeal this decision.
19. Mr X lodged an appeal against the Council’s decision on 4 August 2024. Mr X said:
• Y had special educational needs and because of these difficulties could not reasonably be expected to walk to school.
• He did not believe the Council had considered if the route was safe for Y.
• They are a low-income family and receive Universal Credit and receive free meals at school which should enable them to qualify for travel assistance.
20. The Council considered Mr X’s appeal at panel on 14 August 2024 and refused the appeal. The Council said Y has been attending school for a year and has a sibling that attends the school and presumed Mr X was already taking the sibling to and from school. The Panel noted that Y’s school was Mr X’s parental choice.
21. On 29 August 2024, Mr X made a complaint about the Council’s refusal at panel. Mr X said the Council refused the application because Y does not attend the nearest school but said this does not apply to children with an EHC Plan.
22. The Council wrote to Mr X on 30 August 2024 to acknowledge his appeal against the home to school transport refusal. The Council confirmed it had considered the medical reports and details of Y’s ASD but could not approve the request for home to school transport. The Council said Y does not present with mobility issues which would prevent them from walking the distance to school while accompanied. The Council said the medical evidence detailed that Y’s sensory processing difficulties can be managed through a structured routine. The Council confirmed Mr X had a right to appeal the decision and to contact them further for information on the appeals process.
23. On 19 September 2024, Mr X wrote to the Council to appeal its decision to refuse home to school transport. Mr X said:
• Walking distances do not apply to children with Special Educational Needs and/or Disabilities. Mr X said the Council should carry out an assessment of a child to find out whether they can reasonably be expected to walk the distance from home to school.
• He had enclosed a diagnosis report to show that Y could not walk the distance from home to school on medical grounds. Mr X said he gave permission to the Council to contact medical professionals to follow up on this should they need.
24. The Council responded to Mr X on 1 October 2024. The Council sent a copy of the letter from 30 August 2024 to Mr X.
25. Mr X wrote back to the Council on 12 October 2024 to reiterate his request for an appeal about the decision and provided the same rationale he provided on 19 September 2024.
26. The Council arranged to meet with Mr X in response to the contact on 12 October 2024. The Council held this meeting on 31 October 2024. During the meeting the Council discussed with Mr X that he transports his other child to the same school. Mr X said the school allows them to drop both children in the car park. The Council said it cannot provide transport to every child and Y does not qualify for home to school transport because of the distance.
27. On 7 November 2024, the Council wrote to Mr X to reaffirm why it has made its decision not to award home to school transport. The Council said:
• Y lived within the statutory walking distance to school.
• It had considered Y’s Special Educational Needs but did not consider this prevented Y from walking to school when accompanied by an adult.
• It had no evidence of a physical disability impeding Y’s mobility.
• Mr X had a parental responsibility to arrange transport for both Y and Y’s sibling to school.

Analysis

Overall decision

28. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. Neither are we a court, and so cannot determine or define the law.
29. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision not to provide travel assistance for Y. If the Council has considered the relevant policies and reached a suitable decision in line with these policies, the Ombudsman cannot find fault.
30. When the Council issued its first decision letter of 2 August 2024, it provided no reasons for why it declined the application for home to school transport. The Council simply stated Y did not meet the criteria. Mr X appealed this decision because of Y’s Special Educational Needs, the route being unsafe for Y and the family being low-income.
31. When the Council wrote to Mr X on 30 August 2024, it detailed its consideration of Y’s Special Educational Needs and the safety of the route when accompanied by an adult. The Council has shown suitable consideration of these factors and Y’s individual circumstances when upholding its decision to decline home to school transport. The Council has considered the relevant legislation and policies in making its decision; this is not something I can find fault with. The Council has maintained this stance since 30 August 2024.
32. The Council failed to detail any consideration about Mr X’s concerns they are a low-income household and could therefore qualify for home to school transport. Failure to detail any consideration of this appeal point was fault by the Council. While this was fault, this has not caused an injustice to Mr X. This is because entitlement for home to school transport based on the low-income criteria is only applicable when a child is over the age of 8, which Y is not. As such, Y would not qualify under this criterion even if the Council had considered it.

Process

33. The Council’s policy on home to school transport says it will consider an application as soon as possible. Given Mr X made his application on 10 July 2024 and the Council provided its first decision to refuse the application on 2 August 2024, I consider the Council has acted in a suitable timescale.
34. The Council’s policy says a person has 20 working days to make a written request for review of the decision at Stage 1. Mr X met this timescale by making his appeal on 4 August 2024.
35. The Council had 20 working days itself to consider the appeal and provide a response. This gave the Council until 2 September 2024 to provide its rationale to Mr X. The Council provided this rationale about the Stage 1 appeal on 30 August 2024. The Council acted within its process timescales and I do not find fault.
36. However, by the time the Council issued its Stage 1 response on 30 August 2024, it had already taken this matter before the appeal panel. The Council acted prematurely to put this matter before panel as it should have only done this at Stage 2; this was fault.
37. In the letter of 30 August 2024, the Council told Mr X he can appeal but did not explain how or the time limits attached to this. The Council’s policy says it will provide information in the Stage 1 response letter about how a person can appeal. While the Council provided basic information that Mr X could appeal, the requirement to contact it to get information about how to make the appeal does not follow the Council’s process and produces barriers to a person making an appeal; this was fault.
38. Mr X had 20 working days to appeal to Stage 2 from 30 August 2024. This meant Mr X needed to submit a written appeal by 27 September 2024. Mr X submitted a formal request for an appeal on 19 September 2024. Despite this formal request, the Council did not follow its appeal process and did not pass this matter to an independent appeal panel. However, this did not cause a difference to the outcome in this matter because the Council had already considered this matter at panel as part of the Stage 1 process. While this would not result in a different outcome, it has caused confusion to Mr X as the Council failed to follow its process.
39. The Council should also apologise to Mr X for failing to follow its process. The Council should also provide training to staff about the importance of following the correct process and providing suitable information to people about the appeal process.

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Action

40. Within 9 weeks of the Ombudsman’s final decision the Council should:
• Provide an apology to Mr X for failing to follow its home to school transport appeal process.
• Provide training to staff about the importance of following its home to school transport appeal process and about including suitable information to people about how a person can appeal decisions.
41. The Council should provide us with evidence it has complied with the above actions.

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Decision

42. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman