Summary: Miss B complained the Council failed to properly consider whether to award school transport for her daughter. The Council failed to properly consider Miss B’s representations, the discretionary element of its policy and failed to arrange a stage two panel to consider the case. That leaves Miss B with some uncertainty about whether her daughter would have secured school transport. An apology, payment to Miss B and training for officers is satisfactory remedy.

The complaint

1. The complainant, Miss B, complained the Council failed to consider whether to exercise its discretion to award school transport for her daughter.
2. Miss B says the Council’s failure to properly consider her daughter’s case has had a significant impact on both her daughter’s and her own mental health and prevented her seeking employment.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. As part of the investigation, I have:
• considered the complaint and Miss B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Miss B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s Travel Assistance Policy for Children and Young People (the policy)

7. Parents/carers/guardians are responsible for ensuring their children attend school regularly. However, under the Education Act 1996 and the Education and Inspections Act 2006, local authorities have a duty to provide assistance with travel to and from qualifying schools/college for children and young people aged 5-16 in certain circumstances.
8. The Council must make arrangements, free-of-charge, for eligible children to travel to school. Additionally, the Council has a discretionary power to arrange travel to school for other children.
9. The Council’s policy is not to provide travel assistance to pre-schoolers except where the pre-schooler has an education, health and care plan (EHC Plan), and the circumstances are considered exceptional. Even where the Council does provide travel assistance to a pre-schooler it will make a charge for this.
10. The Council will consider whatever is said in any application but will have regard to the following:
• distance and journey time from the pre-schooler’s home to their place of education and the cost of providing travel assistance;
• what alternative means of facilitating attendance there may be;
• what alternative placements or options there may be;
• the contents of any EHC Plan (including anything about transport);
• the best use of the Council’s resources and the competing claims upon them.
11. The appeal process has two stages:
• Stage 1 – A senior Council officer will acknowledge the appeal within 5 working days of the receipt of the appeal form and the applicant will receive confirmation the appeal is under review. A decision and notification will be made within 20 working days from receipt of the appeals form. If the applicant remains dissatisfied with the outcome, they should notify the Council in writing within 20 working days of receiving the appeal decision and the appeal will then be moved to stage 2.
• Stage 2 – a review by a panel made up of senior managers, chaired by a manager independent of the original decision-making process. The review will take place within 40 working days of receiving notification of the appeal being escalated. The panel will consider written and verbal representations from (or on behalf) of the applicant as well as information provided by the Council officer involved in the case and provide the applicant with written notification of its decision within 5 working days.
• If the applicant remains dissatisfied, the applicant can raise a complaint to the Council using its complaints procedure.

What happened

12. Miss B’s daughter has learning, sensory, emotional and behavioural challenges and has an EHC Plan. At the time of the events complained of Miss B’s daughter was not of compulsory school age and therefore the Council did not have a statutory duty to provide transport.
13. Miss B applied for school transport for her daughter in May 2024. Miss B provided details about the difficulties her daughter had accessing public transport due to her special educational needs. The Council refused that application in July 2024. The letter said the journey to school did not meet the criteria to provide assistance and the Council did not consider there were circumstances such as health needs, challenging behaviour or mobility issues where travel assistance could be agreed. The Council also noted the walking distance to school was below two miles. The letter told Miss B about how to appeal.
14. Miss B appealed on 12 August. The Council responded to that appeal on 6 September when it again declined to provide transport assistance. The letter said the journey to school did not meet the criteria and the Council did not consider there were circumstances such as health needs, challenging behaviour or mobility issues to warrant the award of travel assistance. The letter did not say anything about a further right of appeal.
15. Miss B wrote to the Council again on 24 October to ask it to take the case to the second stage. Miss B said the Council’s response did not take into account her daughter’s exceptional circumstances and failed to follow the statutory guidance and the Council’s policy. Miss B pointed out councils have discretion to provide transport assistance in exceptional circumstances and outlined why she believed her daughter qualified for that.
16. The Council responded to that correspondence at stage one of its complaints procedure. The Council apologised it had not previously said the decision to refuse transport was based on her daughter’s age. The Council told Miss B she could apply for school transport when her daughter turned five.
17. Miss B contacted the Council again to raise concerns about its failure to consider her daughter’s exceptional needs. The Council responded to that at stage two of its complaints procedure in January 2025. The Council upheld the decision not to award transport, explaining it did not have an obligation to provide transport to children before compulsory school age. The Council noted Miss B’s daughter’s EHC Plan did not refer to mobility issues or any requirement for transport. The Council confirmed it had not awarded transport as Miss B’s daughter was not of compulsory school age.

Analysis

18. Miss B says the Council failed to consider whether to exercise its discretion to award school transport for her daughter. Miss B says because her daughter has diagnosed special educational needs and displays dangerous behaviours when travelling she believes the Council should have treated her as having exceptional circumstances even though her daughter was not of statutory school age.
19. I am concerned about how the Council considered Miss B’s representations in this case. The documentary evidence I have seen satisfies me when Miss B put in her application for travel assistance she set out in detail the difficulties her daughter had accessing public transport. Despite that, the Council’s letter refusing her application for transport referred only to the walking distance between Miss B’s home and the school. Although the letter said the Council did not consider Miss B’s daughter had circumstances to warrant travel assistance it did not refer to any of the points Miss B had raised about her daughter’s challenging behaviour. I am therefore not satisfied the Council properly considered the application at that stage and that is fault.
20. I am also concerned when Miss B put in an appeal the Council again did not consider whether it should exercise its discretion to award transport. Instead, the letter following the appeal told Miss B the journey to school did not meet the criteria and said the Council did not consider there were circumstances such as challenging behaviour to warrant travel assistance. The letter did not, however, refer to any of the representations Miss B had made about her daughter’s challenging behaviour. Nor did the Council refer to the evidence Miss B provided in support of her appeal. That is fault. Also, the letter did not tell Miss B she had a right to ask for a panel to consider her appeal at stage two. That is also fault.
21. I am also concerned when Miss B asked the Council to take her appeal to stage two it failed to do that and instead dealt with the representations as a complaint. Under the Council’ policy it should have arranged a panel to hear Miss B’s case. The Council should also have given Miss B an opportunity to make verbal representations at the panel hearing. The Council did not do that which denied Miss B a stage two right of appeal. That is fault.
22. I am also concerned that when responding to the complaint at stages one and two the Council again failed to address whether it had considered using its discretion to award transport assistance even though Miss B’s daughter was not of compulsory school age. Instead, in its stage one complaint response the Council referred only to the fact it did not have to provide transport for pupils under five and did not refer to the discretionary element of its policy. That is fault and the Council repeated that fault when responding to the complaint at stage two. Neither the stage one nor the stage two complaint responses identified the Council had failed to follow its policy as it had not arranged a stage two panel to consider the appeal. All of that is fault.
23. I am satisfied because of those failures Miss B experienced distress and is left with uncertainty about whether the Council would have awarded her daughter discretionary school transport before she turned five. It is not now appropriate for me to recommend the Council hold an appeal panel because Miss B’s daughter is of compulsory school age and receives school transport. I cannot speculate though about whether the Council would have awarded school transport to Miss B’s daughter if it had followed the process properly and considered whether to exercise its discretion. Even if it had awarded transport the Council would likely have asked Miss B to contribute financially towards it. In those circumstances I consider an apology and payment of £200 to Miss B a suitable remedy.
24. I also recommended the Council hold a training session for those involved in considering transport applications and appeals. That training session should remind officers the Council has discretion to award transport even if the child has not reached five years of age and that consideration of that point needs to be clearly set out. The training should also remind officers if a parent/carer makes further representations after the stage one appeal process a stage two panel should be set up and parents/carers should be given the opportunity to put their points in person. The Council has agreed to my recommendations.

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Action

25. Within one month of my decision the Council should:
• apologise to Miss B for the distress and uncertainty she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; and
• pay Miss B £200.
26. Within two months of my decision the Council should arrange a training session for officers dealing with school transport applications and appeals to cover:
• the Council’s discretionary powers to award school transport to children below the age of 5; and
• the two stages of the Council’s appeals procedure for school transport which should make clear the parent/carer right to have a second stage appeal heard by an appeal panel at which they can make verbal representations.
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman