Summary: The Ombudsman completed an investigation into the Council handling of education transport. We asked the Council questions about the widespread impact of its policy. The Council was at fault. Its policy does not detail a parent must agree to a personal transport budget. The Council agreed to amend its policy and factsheet to confirm a parent must agree to any alternative arrangements for education transport.

The complaint

1. Section 26D of the Local Government Act 1974 gives us the power to investigate matters coming to our attention during an investigation if we think a member of the public has or may have suffered an injustice as a result.
2. During another investigation completed by the Ombudsman we identified concerns with the Council getting to school policy.
3. We had reason to believe there was widespread systemic failure on the part of the Council. Therefore, we launched a separate investigation to determine the scale of the problem.

Back to top

The Ombudsman’s role and powers

4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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)
6. If we are satisfied with a Council’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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

Back to top

How I considered this complaint

8. I considered evidence provided by the Council as well as relevant law, policy and guidance.
9. The Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

10. 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)

11. 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.
12. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
13. The statutory guidance, “Travel to and from school for children of compulsory school age”, says council’s can meet their duty in a range of alternative ways, provided they have the consent of the parent. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraph 68 and 69)
14. The Council school transport policy gives four options for providing transport. They are:
• Travel training;
• Public transport travel pass;
• Personal travel budget; and
• Once all the above options have been ruled out, it may provide directly provided transport.

My findings

15. The Council said parental consent is a prerequisite for issuing a personal travel budget. It said the process begins with an application. If a child is eligible, an officer visits the family to discuss options and secure an agreement. The Council confirmed it issued a factsheet, explaining the personal travel budget.
16. The Council position, the personal travel budget is based on agreement, is in line with statutory guidance. However, this is not how the Council acted in the previous Ombudsman investigation. The Council was unable to provide any evidence the parent consented in the previous investigation, and the complainant was clear they had not given consent.
17. The Council policy and factsheet do not mention the parent needing to agree to an alternative way of providing transport. The Council policy is therefore not in accordance with the statutory guidance, referenced in paragraph 13. The personal travel budget factsheet the Council provided does not mention the requirement to agree to a personal travel budget.
18. I find fault with the Council policy and factsheet. The statutory guidance is clear, the parent must agree to any alternative ways to arrange education transport. Neither the policy nor the factsheet makes this clear.

Back to top

Action

19. To remedy the injustice caused to children and young people through a failure to ensure they made an informed decision regarding education transport, the Council agreed to take the following action within 4 weeks of my final decision:
• Rewrite the factsheets to make it clear a personal travel budget is available if the parent agrees.
20. The Council agreed to take the following action within four months of my final decision:
• Rewrite the policy to make it clear a personal travel budget is available if the parent agrees.
21. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman