Summary: Mrs B complained about the Council’s failure to properly consider individual transport for her daughter to get to school, the way the appeal was handled, failure to consider her complaint and poor communication. There is fault in how the appeal was handled, along with instances of poor communication with Mrs B and a failure to take part of the complaint to stage two. An apology, payment to Mrs B and reminder to officers is satisfactory remedy. A further appeal is no longer necessary as Mrs B’s daughter has changed schools.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• failed to alter her daughter’s transport arrangements when she raised issues about the provision;
• failed to properly consider her request for individual transport;
• refused to consider her complaint at stage two;
• failed to consider her appeal properly and failed to set up the appeal properly;
• failed to explain the decision on the appeal properly;
• wrongly increased the number of children in the taxi without considering the impact on her daughter; and
• failed to communicate effectively with her.
2. Mrs B says failures by the Council have caused her significant distress.

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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),
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, 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)

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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mrs B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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.

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What I found

What should have happened

9. A Council must make such travel arrangements as it considers necessary to facilitate an 'eligible child' to attend their relevant educational establishment. The Council must provide this free of charge. (The Education Act 1996, section 508B)
10. For arrangements to be suitable, they must be safe and reasonably stress free, to enable the eligible child to arrive at school ready for a day of study. (Department of Education, 2014, Home to school travel and transport guidance)
11. The issue of non-stressful transport was considered in R v Hereford and Worcester CC ex parte P [1992] which found the obligation on councils is to make such transport arrangements as it considers necessary for a child to reach school 'without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer, just as it must be to make such arrangements as it considers necessary for him to travel in safety and in reasonable comfort'. The courts have found 'it is primarily for the local authority to decide' what is necessary (R (on the application of M) v London Borough of Hounslow (2013)).
12. The Council’s school travel policy (the policy) says children over eight years of age are entitled to funded transport if they live more than three miles from the nearest suitable school. It says children are entitled to funded travel however far they live from their school if they cannot reasonably be expected to walk to school due to their special educational needs.
13. The policy says the Council may consider additional support for travel if evidence is provided a child's needs are significant enough to require further assistance. In those circumstances parents need to provide written representations.
14. The policy says if it is agreed to help with travel the provision will always be aimed at preserving the child's independence as far as possible and lists options in order, with home to school transport only being provided as a last resort.
15. The policy says if a child with a potentially life-threatening condition travels on home to school transport passenger assistants will not administer treatment or medication. The policy says should that situation arise emergency services will be called.
16. The policy says for children and young people who qualify for travel assistance the Council will provide the most appropriate transport with regard to the child's needs. It says in every circumstance it will be whatever is the best value for the Council.
17. The policy says the Council has two panels that can consider appeals. The education transport appeals committee will consider appeals which involve the appellants making verbal representations. For other appeals which do not meet a specific criteria the appeal is considered by the travel officer panel.
18. The Government has issued detailed statutory guidance on how school transport appeals should be handled. This says the appeal panel should consider written and verbal representations from both the parent and officers involved in the case and give a detailed written notification of the outcome, setting out:
• the nature of the decision reached;
• how the review was conducted;
• information about other departments and/or agencies that were consulted as part of the process;
• what factors were considered;
• the rationale for the decision reached; and
• information about the parent’s right to put the matter to the Local Government Ombudsman.

What happened

19. Mrs B’s daughter has special educational needs and has an education, health and care plan which names a school which was more than three miles from Mrs B’s home. Mrs B applied for school transport. The Council arranged a taxi for Mrs B’s daughter which began in September 2021 and initially transported Mrs B’s daughter and two other children, with a passenger assistant present. When Mrs B queried that the Council explained it would only offer individual transport where a student had conditions, usually medical, that made it unsafe for them to travel with other students and said normally the Council would need reports from professionals. The Council explained the arrangements for getting Mrs B’s daughter in and out of the car which would involve the passenger assistant and Mrs B when at home and the passenger assistant and school staff when at school.
20. Mrs B contacted the Council again in September following a discussion with a Council officer as she had understood it was agreed to change the transport arrangements for her daughter. In response the Council told Mrs B it believed it had offered her daughter appropriate, safe transport and would therefore not be arranging an alternative. The Council told Mrs B it had taken her daughter’s needs into account when procuring the transport. The Council told Mrs B she had a right to appeal against the decision. Mrs B agreed for the taxi firm to transport her daughter following that email.
21. Mrs B contacted the Council again later in September to say she did not consider the transport arrangements appropriate for her daughter. Mrs B referred to an incident when the taxi company had not collected her daughter after the first school day and referred to the need for a car seat. Mrs B asked for individual transport. After Mrs B chased the Council it told her it would respond to her request by 1 October.
22. Mrs B contacted the Council on 1 October to note nobody had contacted her. Mrs B also told the Council her daughter had bruising on both legs after getting into the taxi earlier that week.
23. Mrs B chased the Council again on 4 October. The Council told Mrs B she would need to appeal if she wanted individual transport and addressed the issue of the taxi firm not collecting her daughter the previous week. The Council noted Mrs B had not requested a car seat on her transport application but said it had now put one in place.
24. Mrs B raised further concerns about the taxi company on 5 October which included concerns about the taxi company having had its licence removed the previous year and vehicles not being roadworthy. Mrs B asked for a change of transport. The Council acknowledged receipt of the email. Mrs B chased the Council the following day and the Council said a member of the transport team would contact her.
25. Mrs B contacted the Council again on 8 October to tell it her daughter had bruised her legs again getting into the car. Mrs B also told the Council she had not received any contact from the transport team. The Council told Mrs B she needed to appeal if she did not consider the transport provided was appropriate for her daughter.
26. Mrs B asked the Council to arrange alternative transport again on 11 October, referring to the issues she had already raised with the Council. Mrs B explained she did not consider it necessary to appeal given the concerns she had raised about the taxi company. Mrs B chased the Council on 15 October. The Council told Mrs B the transport team was dealing with her request for a change of transport and the customer rights team was dealing with her complaint.
27. I do not have any evidence of further contact about transport arrangements and the suitability of the taxi company until 10 June 2022. That followed a telephone conversation between Mrs B and the Council. The Council emailed Mrs B following that discussion to confirm what had been discussed. In that email the Council confirmed it had a letter from Mrs B’s GP supporting her request for individual travel. The Council told Mrs B in an emergency situation the driver would stop the vehicle and emergency services would be called. The Council said it intended to provide clearer instructions about emergency procedures to operators.
28. The Council contacted Mrs B again on 17 June to say it had reviewed the information she had sent through regarding her request for individual transport. The Council told Mrs B it did not consider the evidence she had provided was sufficient to show her daughter needed individual transport. The Council noted Mrs B’s daughter had returned to school on her current transport arrangements and no issues had been identified from the taxi operator or the school. The Council confirmed it was putting new guidelines together on emergency procedures with a view to those starting in the autumn term.
29. On 24 June the Council told Mrs B it had provided guidance to the taxi company on action to take in the case of an emergency. That guidance was that if assistance was sought from the ambulance service, involving taken advice from a call handler, it was permissible for the driver or passenger assistant to follow that guidance.
30. Mrs B put in a complaint at the end of June about poor communication and the decision not to change the transport. Mrs B also raised concerns about the reasoning for the refusal of individual transport. The Council responded to that complaint at the end of July. The Council reiterated the information it had provided to the taxi operator about what to do in a medical emergency. The Council noted the information Mrs B had provided from the GP did not provide any reason for Mrs B’s daughter needing individual transport. The Council also noted it had not received any concerns from the taxi operator or the school about Mrs B’s daughter using the group transport. The Council therefore said it did not consider Mrs B’s daughter met the criteria for individual transport.
31. Mrs B asked the Council to take the complaint to stage two of its complaints procedure. The Council declined to do that and told Mrs B this was because a complaint investigation could not result in her daughter being given individual transport. The Council told Mrs B the way to achieve that was to appeal.
32. The Council gave Mrs B details about the appeals process and explained if she wanted to make verbal representations she would need to attend the meeting in person. Mrs B raised concerns about that as she wanted to make verbal representations but could not attend the meeting. The Council reiterated its procedures did not allow for Mrs B to make verbal representations unless she took part in the face-to-face meeting. Mrs B therefore submitted a written appeal.
33. The Council’s travel officer panel considered Mrs B’s appeal at the end of August. The panel decided not to award individual transport as it did not consider there were exceptional reasons for Mrs B’s daughter to receive individual transport. The panel recommended the passenger assistant sit next to Mrs B’s daughter on the transport to support her and minimise any distraction from the other students on the vehicle.
34. In September 2022 the Council increased the number of children travelling in the taxi. Including Mrs B’s daughter there were now five children travelling in the taxi with the driver and passenger assistant. Mrs B raised concerns about that and said the agreement had been for her daughter to travel with two other children. Mrs B also raised concerns about the size of the taxi and the fact her daughter would have to place her bag on the floor which would cause her anxiety due to her concern about germs. When Mrs B had not received an answer by the close of the day she chased the Council and then sent a further email that evening highlighting her concerns. The following day Mrs B told the Council she intended to keep her daughter at home due to the number of children travelling in the car.
35. On 5 October the Council told Mrs B pupils were allocated to routes based on where they live and where they go to school. The Council said when Mrs B’s daughter began travelling to and from school on the route in question there were two other eligible pupils allocated to the route. The Council told Mrs B it had not said there would be no other pupils added. The Council confirmed the passenger assistant could continue to sit next to Mrs B’s daughter as agreed in the appeal and that her bag could be on the back seat of the vehicle rather than on the floor.

Analysis

36. Mrs B says the Council failed to alter her daughter’s transport arrangements when she raised issues about the suitability of the taxi service provided. Mrs B says the concerns she raised related to a previous suspension of the taxi licence for the company used, concerns about quality of the vehicles, concerns about her daughter bruising her legs when getting into and out of the vehicle due to the height and concerns about the taxi driver not collecting her daughter on the first day she attended school. Mrs B says in a telephone conversation with the Council about those issues she was told there was a possibility of her daughter being included on an alternative route and the Council failed to follow through with that.
37. Having considered the documentary evidence I have found nothing to suggest the Council agreed to provide Mrs B’s daughter with an alternative route to travel to school. I understand though this may have been a telephone conversation between Mrs B and a Council officer. In the absence of any documentary evidence I cannot take a view on what was discussed in a telephone conversation.
38. Mrs B says alongside her request for alternative travel she also asked the Council to provide individual transport for her daughter and it failed to consider that. I am satisfied early in the process Mrs B told the Council she considered her daughter required individual transport, rather than being transported to school in a group. I am satisfied the Council told Mrs B it could not agree individual transport without evidence from professionals that this was something her daughter required. Until August 2022 the only documentary evidence I have seen from professionals about Mrs B’s daughter’s transport situation are copies of a letter from the GP in November 2021 and a copy of a letter from the senior paediatric occupational therapist in December 2021. For the latter, there is no evidence the occupational therapist recommended individual transport. For the GP’s letter, although the GP said he supported Mrs B’s application for individual transport he did not say why he considered individual transport necessary. In those circumstances I cannot criticise the Council for telling Mrs B it did not consider her daughter qualified for individual transport and for instead directing her to the appeal route. I am satisfied the Council has consistently made clear as its view was that Mrs B’s daughter could appropriately access group transport the way to challenge that decision was through an appeal. I therefore do not consider the Council at fault. The issue is therefore with whether the Council properly considered the appeal.
39. Having considered the documentary evidence for the appeal I am satisfied Mrs B put forward detailed reasons about why her daughter required individual transport. I am also satisfied panel had access to a letter from a charity supporting children like Mrs B’s daughter. That letter made clear the charity’s view that Mrs B’s daughter needed to travel to school with one-to-one support with a personal assistant and that due to her anxiety about being close to other children group travel was an extremely challenging daily experience for her and therefore her health and social needs meant she should have access to individual travel to school. I am satisfied the notes from the panel hearing refer to Mrs B’s representations and the letter from the charity. However, we would expect the Council, when considering an appeal, to show the rationale for its decisions. We would also expect the Council to provide parents with a full explanation of the decision so they can understand how and why the appeal panel arrived at the decision and why the evidence and arguments the parents submitted were rejected.
40. In this case I am satisfied the panel considered some of the issues raised by Mrs B and the charity supporting her around the difficulties Mrs B’s daughter had when travelling in a group. I say that because I note panel recommended the passenger assistant sit next to Mrs B’s daughter to support her and minimise any distraction from other students on the vehicle. The panel also noted the school was required to provide a person to ensure Mrs B’s daughter could safely access the transport when leaving the school premises, which addressed the concerns Mrs B had about the type of taxi made available to her daughter. However, the notes from the appeal panel hearing and the decision letter do not make clear why panel was not satisfied Mrs B’s daughter required individual transport. Instead, both the notes from the appeal hearing and the decision letter simply record the panel could find no exceptional reason as to why Mrs B’s daughter should be provided with individual transport. Given the charity which wrote a letter of support made clear Mrs B’s daughter required one-to-one support with a personal assistant when travelling I would have expected the panel to consider that point and record its reasoning as to why that was not necessary in Mrs B’s daughter’s case.
41. I appreciate that in recommending the personal assistant sit next to Mrs B’s daughter the panel were likely seeking to reduce Mrs B’s daughter’s anxiety, which partially addresses some of the points Mrs B and the charity made. However, that does not address the charity’s recommendation for Mrs B’s daughter to travel to school with one-to-one support from a personal assistant. The passenger assistant sitting next to Mrs B’s daughter would be expected to support the other children on the transport as well as Mrs B’s daughter and this would therefore not be one-to-one. It is not for the Ombudsman to say whether Mrs B’s daughter should receive individual transport. That is properly a matter for the Council to decide. However, given the notes from the appeal hearing and the decision letter following the appeal hearing I am not satisfied all the evidence Mrs B provided was taken into account. Nor am I satisfied the Council provided Mrs B with a full explanation of the decision. Both of those are fault.
42. Another issue Mrs B raised about the handling of the appeal is concerned with her inability to attend the appeal hearing in person. It is clear from the documentary evidence Mrs B wanted to put her arguments in person to the appeal panel but was unable to attend the appeal hearing in person given its distance from where she lives, the fact the Council could not give her a time for the appeal until six days before the hearing and because she had to be at home both when her daughter left for school and when she returned from school. Mrs B asked to provide her evidence either by telephone or video link. The Council declined both of those options and said Mrs B had to attend in person.
43. I refer in paragraph 18 to Government guidance on how an appeal hearing should be handled. That Government guidance refers to parents being given an opportunity to make verbal representations but does not say anything about whether those representations need to be in person. The Council says the hearing had to take place in person because the appeal panel that considers verbal representations is made up of elected Members who are legally required to take part in face-to-face committee meetings. While I appreciate the Council’s point, it will also be aware that during COVID-19 restrictions most council meetings took place remotely. Given it is likely most transport appeal hearings held during 2020 and most of 2021 would have taken place remotely I would have expected the Council to have considered whether that was a facility it could make available in Mrs B’s case given her difficulty attending the hearing in person. Failure to consider alternative options for Mrs B other than attending in person and instead rigidly sticking to the requirement for a face-to-face hearing is fault.
44. I have found no evidence though to suggest the appeal panel failed to consider Mrs B’s appeal impartially. Mrs B says she was told by the Council the appeal panel would not be informed of the fact she had complained and therefore because the appeal panel referred to that it likely affected its decision. I have found no evidence to support that view. Nor have I seen any evidence to suggest the Council told Mrs B the appeal panel would not be told about her complaint. There is nothing in the documentary evidence though to suggest the appeal panel was swayed by the fact Mrs B had submitted a complaint. In fact, the notes from the appeal panel hearing show the decision not to award individual transport was a majority decision. It is therefore clear one member of the panel was persuaded individual transport was appropriate. I am therefore satisfied the fact Mrs B had complained did not influence the decision.
45. Nor have I found any evidence of fault in the composition of the appeal panel. Mrs B says she was not given details of the appeal panel members in advance of the appeal hearing. However, I am not aware of any requirement for the Council to have done that. Having considered the Council’s transport policy I have found no evidence of fault in how the appeal panel was constituted.
46. Mrs B says the Council unreasonably refused to consider her complaint at stage two. In contrast, the Council says the appropriate route for Mrs B to follow was an appeal and the appeal outcome dealt with the issues she raised. I have considered both the complaints Mrs B submitted and the appeal documentation. I appreciate in terms of seeking individual transport and Mrs B’s concern about the Council’s refusal to consider that before the appeal, those were matters which were dealt with during the appeal process. However, in her complaint Mrs B had also raised concerns about poor communication from the transport department, which she had provided specific examples of, and concerns about verbal information she says she was given about the possibility of a temporary alternative transport solution while her request for individual transport was considered. Neither of those issues formed part of the appeal. I therefore consider the Council at fault for failing to progress those issues to stage two of its processes.
47. Mrs B says the Council unreasonably increased the number of children in the taxi without properly considering the impact that would have on her daughter. Mrs B says it was agreed for her daughter to be transported to school in a taxi with two other children but there are now four children in the taxi with her. Having considered the documentary evidence I have not seen any information to suggest the Council considered group transport only appropriate for Mrs B’s daughter if she travelled with a small number of children. In those circumstances I cannot criticise the Council for increasing the number of children in the taxi. As I said earlier though, there was fault in how the Council considered the appeal for individual transport. For that reason I originally recommended a further appeal. However, this has now been overtaken by events as Mrs B’s daughter has started attending a different school. A further appeal is therefore no longer necessary.
48. Mrs B says the Council communicated with her poorly by failing to answer her questions, delaying replying, failing to reply in some cases and by certain officers refusing to speak to her. I have found no evidence in the documentary records to suggest the Council has refused to speak to Mrs B about her concerns. It is clear though Mrs B is anxious about the transport arrangements put in place for her daughter and whether they are suitable, which has led to her contacting the Council regularly by email or telephone. For the most part I am satisfied the Council has responded to the issues Mrs B has raised, albeit Mrs B has not always been satisfied with the information provided. That includes Mrs B’s questions about whether the passenger assistant could provide help to her daughter in a medical emergency. For that particular issue I am satisfied the information the Council provided Mrs B with when it agreed the travel arrangements in August 2021 made clear that transport staff were not allowed to give a child any medication or treatment as they are not qualified to do so. That information made clear if a child is taken ill during the journey the transport staff must seek immediate help from the ambulance service to ensure the child is treated by qualified people. That is the same information the Council repeated when Mrs B raised specific questions. I therefore do not criticise the Council for how it dealt with that specific issue.
49. I am concerned though about what happened at the end of October 2021. I have seen no evidence the Council responded to the issues Mrs B raised then. That included concerns about the suitability of the taxi provider, its previous taxi license suspension and the issue of roadworthy vehicles. I have seen no evidence to suggest the Council provided Mrs B with any reassurance on those points and that is fault, given those are issues she raised on multiple occasions. In other circumstances there were delays responding to correspondence but not to the extent to warrant a finding of fault. In reaching that view I appreciate Mrs B is concerned about her daughter’s safety and I understand why that would prompt her to contact the Council on multiple occasions during the same day in some instances. I also understand why that might feel like the Council is not treating her concerns seriously. However, in the absence of any clear evidence of a failure to respond within a reasonable timescale or refusal to talk to Mrs B I have no grounds to criticise the Council, other than in relation to the points referred to earlier in this paragraph.
50. So, I have found fault in how the Council handled the appeal both in terms of its organisation and in terms of how it considered the appeal. As Mrs B’s daughter has now changed school a further appeal is no longer appropriate. However, I recommended the Council apologise to Mrs B for the failures I have outlined in how the appeal was handled and communication issues which caused Mrs B frustration and led to her going to time and trouble to pursue the complaint. I also recommended the Council pay Mrs B £100 to reflect her time and trouble. I recommended the Council remind officers when dealing with complaints that also involve appeal rights to ensure the complaints process considers those issues which will not be considered as part of the appeal. The Council has agreed to my recommendations.

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Agreed action

51. Within one month of my decision the Council should:
• apologise to Mrs B;
• pay Mrs B £100;
• remind officers dealing with complaints of the need to ensure the complaints process deals with issues that are separate to any issues which attract a right of appeal.

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Final decision

52. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman