Summary: Mrs X complained the Council refused to provide home to school transport for her child, Y, who has special educational needs, and that it failed to follow the appeal process correctly. The Council was at fault. It failed to properly consider Y’s circumstances, to hold a stage one review and to properly record and explain its decision making. This leaves doubt over the decision reached. The Council has agreed to apologise to Mrs X for the frustration and uncertainty caused and rehear Mrs X’s appeal.

The complaint

1. Mrs X complained the Council refused home to school transport for her child Y who has special educational needs. She complained it failed to follow the appeals process correctly and failed to properly consider the circumstances of the case. This has caused them frustration and meant Y is without the school transport they need.

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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)
5. 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

6. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I consider any comments I received 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. 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 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 complaining 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 travel policy

13. 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. The eligibility of a child for free school travel support is set out in statute and 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 in line with Council policy.
14. The Council operates a two-stage appeals process in line with the statutory guidance.

The Blue Badge Scheme

15. The Department for Transport’s (DfT) Blue Badge Scheme helps people with severe physical mobility problems, or other conditions affecting their mobility, to access goods and services. It does this by allowing them, or their carer, to park near their destination. Councils are responsible for the day-to-day administration and enforcement of the scheme. This includes assessing applicants’ eligibility for the badge.

What happened

16. Mrs X’s child, Y, is of secondary school age and attends a special school. Y has a diagnosis of autism spectrum disorder and social interaction and communication difficulties. Y also has a physical disability which causes pain and discomfort, which affects Y’s ability to walk distances. The Council had provided Y with free home to school transport.
17. In June 2024 the Council reviewed Y’s home to school travel. It wrote to Mrs X to say as the distance to school was under three miles and Y was able to walk independently (accompanied by a parent /carer if necessary) the current arrangements for travel assistance would cease at the end of the summer term. It set out Mrs X’s right to request a stage two appeal of the decision.
18. In early July 2024 Mrs X emailed Y’s School setting out her concerns that Y suffered anxiety and sensory overload when out in public. Due to Y’s physical condition, they received lower rate mobility allowance, as part of the Disability Living Allowance, and Y received a ‘blue badge’ from the Council due to their disabilities. Mr X worked 12-hour shifts and Mrs X explained her own physical health conditions which would impact her ability to accompany Y to school. The School forwarded this to the Council and asked it to accept the email as an appeal. The Council responded that Y lived near enough to be taken by the parents, but it would be forwarded for a stage two appeal.
19. Mrs X contacted the Council twice in August to chase up the appeal. The Council wrote to Mrs X in mid-September to advise the appeal would be held nine days later.
20. Mrs X’s case included that the driving route was over three miles, the walking route was extremely dangerous, and that Y’s SEN needs were not taken into account. She said the school transport was a lifeline for Y who had barely been able to attend primary school and explained the impact this would have on Y’s anxieties. Mrs X also explained how Y’s physical health condition affected their ability to walk, and that Y received lower rate mobility benefits because of this. She also provided information about the disability related benefits she received, due to her own health conditions.
21. The Council’s case stated ‘a review of the eligibility in line with the new statutory guidance was carried out by an officer. The reviewing officer gave consideration to any available information and evidence provided by the appellant, other Council departments and/or agencies. The outcome of the officer review was that does not meet the qualifying criteria’.
22. The clerk’s notes of the appeal summarised Mrs X’s case which included Y’s autism spectrum disorder, Y’s physical health condition, Mrs X’s health conditions and her difficulties in taking Y to school.
23. The Council’s case stated that due to a change in policy Y no longer qualified. The decision said, ‘acknowledge the medical circumstances of the child’ and said, ‘However the child no longer meets the criteria and therefore it is important for parents to accept responsibility for [Y]’. The Panel unanimously refused the appeal.
24. The Council wrote to Mrs X in late October 2024. It apologised for the delay in providing her with the outcome of the appeal. It set out Mrs X’s case and said, ‘in considering your appeal and 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’. It said, ‘your appeal was refused because the Panel decided that despite these reasons you had not made a sufficiently strong case that it was necessary to grant you assistance with travel as an exception to the policy’.
25. Mrs X remained unhappy and complained to us.

Findings

26. 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.
27. The Council failed to offer Mrs X a stage 1 review of its initial decision. This meant she had no clear idea of the information the Council had taken into account or how it had reached its decision to refuse Y school transport. This was fault and was not in line with the statutory guidance or its policy.
28. The stage 2 appeal panel took place 78 days after the School requested that Mrs X’s email be considered as a stage two appeal. This was 38 days longer than the statutory guidance recommends. This delay was fault which caused Mrs X frustration.
29. Statutory guidance confirms if a child has special educational needs (SEN) 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 Council focused on the home to school distance. There is no evidence the Council properly considered whether Y was physically able to walk to school given their physical health condition for which they received lower rate mobility benefits, had been assessed by the Council as needing a blue badge, and the particulars of their SEN. This was fault.
31. The law and guidance also require it to consider Y’s sensory and behavioural barriers to walking and their safety, even when accompanied. There is no evidence it did so; this was fault. The notes of the hearing list the issues Mrs X raised but not how the Panel considered Y’s SEN and disability and if this impacted his ability to walk the distance to the school. This was fault.
32. The Council’s letter also failed to explain how it had considered the evidence Mrs X provided. It focussed on its discretion to make an exception to the policy. However, Mrs X was not applying as an ‘exception’ but under the criterion that Y could not be expected to walk due to their special educational needs and disability. This was fault.
33. The Council’s faults leave uncertainty over the decision to refuse Y’s home to school transport and caused Mrs X frustration.
34. Following a recent decision about a similar issue the Council agreed to review its processes and to provide training to staff and Panel members, so I have not made any further service improvement recommendations on this case. We will continue to monitor the Council’s performance through our casework.

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Agreed Action

35. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X for the frustration and uncertainty caused by its failure to properly consider her appeal. 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.
2. rehear Mrs X’s stage two appeal using new panel members, appropriately trained in the statutory guidance. If the panel decides to award school transport the Council should reimburse Y’s transport costs back to the start of the school year in September 2024.
36. The Council should provide us with evidence it has complied with the above actions.

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Decision

37. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman