Summary: Mrs X complained the Council refused to provide her child with school transport. She said the Council did not consider her child’s special educational needs and behavioural issues which mean it is dangerous and impossible for them to walk to school, even when accompanied. Mrs X said this caused unnecessary and avoidable distress, worry and frustration. We find the Council at fault and this caused injustice. The Council has agreed to make a fresh decision.

The complaint

1. Mrs X complained the Council refused to provide her child with school transport. She said the Council did not consider her child’s special educational needs and behavioural issues which make it dangerous and impossible for them to walk to school, even when accompanied.
2. Mrs X said this caused unnecessary and avoidable distress, worry and frustration.

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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).

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How I considered this complaint

7. I considered the information and documents provided by Mrs X and the Council. I spoke to Mrs X about her complaint. Mrs X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
8. I considered the relevant legislation, statutory guidance, and policies, set out below. I also considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

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’.
10. 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.
11. ‘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)

12. 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.
13. 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)
14. 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.
15. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
16. 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 transport policy

17. This policy says: “An individual assessment is made of each child’s needs in terms of capability to travel independently.”
18. It says:

“Free transport may be exceptionally agreed particularly in cases of pupils:

• whose education may be severely disrupted because of the effect of being taken into care of the local authority;
• children with SEN [special education needs], disability or mobility needs attending extended schools provision;
• children under compulsory school age with SEN, disability or mobility needs attending pre-school centre or nursery schools;
• children who home life has been severely disrupted; and,
• where the walking route is temporarily unavailable.

This is not an exhaustive list. Each case will be considered on an individual basis.”

19. The policy says that when a decision is appealed, the appeal panel will make sure it achieves a balance between meeting the needs of the parents and the Council, that road safety requirements are complied with, and that no child is placed at unnecessary risk.
20. The policy sets out the Council’s criteria for assessing walking routes. It says it will consider each case on its individual merits. It says when considering walking routes, it assumes all children will be accompanied by a parent or other responsible adult.
21. It says when deciding whether walking is an option for an individual child, the Council will consider any special educational needs, disability or mobility problems the child may have.
22. The policy says the Council will determine whether the route is one which an accompanied child can walk with reasonable safety to school.

What happened

23. Mrs X’s child, B, has special educational needs and attends a specialist school. Mrs X applied to the Council for school transport for B. She said that walking B to school was dangerous for B.
24. The Council said Mrs X’s application did not meet its eligibility criteria. The Council said the school was within statutory walking distance from their home “along what would be considered a safe walking route”.
25. Mrs X appealed the decision.
26. In its stage one appeal decision, the Council maintained its decision. It said B was not eligible for school transport. This was because B’s school was within the statutory walking distance from Mrs X’s home ”for a child of [B]’s age” and was “along what would be considered a safe walking route.”
27. The Council said it did not consider there was any supporting evidence to show that B had mobility issues which would prevent them from walking to school if accompanied.
28. Mrs X asked for stage two. She said the Council had not properly considered what she said. Mrs X said the main concern was not how safe the walking route was, but how safe it was for B to walk that distance given their conditions, behavioural issues and unawareness of danger.
29. Mrs X said B is big and strong for a child of their age, and pulls away from her when walking. She said it is hard to control B and when B refuses to walk, it is impossible to carry them.
30. Mrs X said the statutory walking distance can be applied to a child who will hold a parent’s hand and walk safely, and has an awareness of danger. She said it is not fair to apply the same to B.
31. Mrs X provided a supporting letter from B’s school. The school said B has high-level needs and no awareness of danger. It said B was in a high needs class to ensure their safety and meet their complex needs. The school said B is very strong and can drop to the floor regularly. It said B can also escape a hand-hold and run.
32. The school said it would not expect B to walk the distance from home to school, on the busy main road which accesses the school. The school said this would be unsafe for B. The school said it was not about mobility; it was about B’s safety.
33. The Council’s appeal panel heard from Mrs X in person and considered her appeal.
34. The Council wrote to Mrs X with its decision. The Council said Mrs X told the panel that:
• B is physically strong, will sometimes pull away, and will sometimes drop to the floor if they are told no. This makes it difficult to walk B to school;
• B has no sense of danger so it would be safer if they were transported to/from school; and,
• B can get fixated on number plates (meaning they try to jump in the road to read them).
35. The Council said the panel upheld its decision not to approve Mrs X’s application.
36. The Council said the panel found B was not eligible because they live within the statutory walking distance from the school “along what would be considered a safe walking route.”
37. The Council said the panel was sympathetic to Mrs X’s circumstances, but “the panel felt it was not unreasonable for a parent to accompany their child this distance to school”.

Analysis

38. The Council told the Ombudsman there are no minutes of the appeal panel hearing. However, the Council told the Ombudsman what happened at the panel.

The school’s letter

39. The Council said the panel disagreed with the school’s supporting letter. However, the Council accepts that there is no evidence to show the panel considered the school’s letter. This is because there are no minutes of the panel meeting.

Consideration of B’s needs

40. The Council said the panel considered that the school said B is strong and can drop to the floor. But it said the panel also considered evidence in Mrs X’s application which said B had not experienced any meltdowns in recent times.
41. I do not understand the Council’s reason for equating meltdowns with B being strong and dropping to the floor.
42. The application form asked:
• “Does your child display issues with hitting and kicking out?”
• Mrs X wrote: “yes”
• “How is your child best supported to manage this?”
• Mrs X wrote: “He kicks only when he has a meltdown but not had any in the recent times”
43. I do not agree that this means B will not drop to the floor or pull away. Mrs X’s answer was about hitting and kicking out. I find this shows a lack of understanding of what a meltdown means for each individual child with special educational needs, and what that child’s everyday behaviour is like when they are not having a meltdown.
44. For this reason, I am not persuaded the Council properly considered B’s needs and ability when making its decision.
45. The Council said Mrs X’s application showed there is risk of B running away “which only occurs when [they are] not supervised”. The Council said because B would be accompanied, the panel felt B would therefore be supervised.
46. I do not agree that this is an accurate reflection of what Mrs X said in her application form.
47. The application form asked:
• “Does your child display issues with running away?”
• Mrs X wrote: “yes”
• “How is your child best supported to manage this?”
• Mrs X wrote: “Some tines when not supervised”
48. Mrs X’s answer does not say B only runs away when they are not supervised.
49. For this reason, I am not persuaded the Council properly considered B’s needs and ability when making its decision.

Consideration of distance and safety

50. The Council said it was not unreasonable for Mrs X to accompany B the distance to school. It said it did not consider that B’s education, health and care (EHC) plan contained information that meant the route to school would be unsafe for B.
51. EHC plans are not designed to include consideration of the safety of walking routes or distances to schools. We would not expect to see that information in an EHC plan.
52. However, the Council said the panel considered the school’s letter. In this letter the school said it would not expect B to walk the distance to school, on the busy main road which accesses the school. The school said it would be unsafe for B. The Council said the panel did not agree with the school’s letter.
53. The Council told the Ombudsman that if B is accompanied, the risks to B are mitigated by supervision and the route is a safe walking route to school. It said the journey “negates any need to cross any main roads without a pedestrian crossing.”
54. Both Mrs X and the school told the Council about the dangers to B. They did not say anything about crossing roads. Mrs X and the school confirmed that B is strong and can escape a hand-hold (supervision) and run into the road. B has no awareness of danger.
55. Given the Council’s comments, I am not persuaded the panel properly considered this point.

Consideration of the policy

56. As I have said above, the Council’s policy says it may exceptionally agree school transport in certain cases. The policy says each case will be considered on an individual basis.
57. The Council said it considered applying this policy. However, I have seen no evidence of this. Therefore, I cannot say this happened.

Finding

58. There is no evidence to show how the panel considered the individual factors in this case and the supporting evidence from professionals who know B best.
59. Taking everything into account, I am not persuaded the Council has properly taken into consideration all the factors that are specific to B and their needs and ability. I cannot say this decision was made without fault. I therefore find fault.
60. I find this fault caused Mrs X injustice because it caused unnecessary and avoidable distress and frustration.
61. The Council said it will start taking minutes in future appeal hearings. This is positive.

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Action

62. Within four weeks of this decision, the Council has agreed to make a fresh decision on Mrs X’s application. This fresh decision will be taken by a senior officer. Mrs X will then have the right to appeal the fresh decision if she disagrees with it. If Mrs X appeals the fresh decision, the appeal panel should be made up of panel members who have not previously heard Mrs X’s appeal.
63. In deciding on an appropriate remedy in this case, I have taken into consideration our published guidance on remedies.
64. The Council should provide us with evidence it has complied with the above action.

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Decision

65. I find fault causing injustice. The Council will take action to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman