Summary: Miss Y complains the Council did not properly consider D’s ability to safely walk to school when it received an application for home to school transport. There is procedural fault in how the Council handled D’s school transport application and appeal. The Council will apologise and reconsider D’s application, taking into account the relevant tests for eligibility for children with special educational needs.

The complaint

1. Miss Y complains about the Council’s decision not to provide her son, who has an Education Health and Care (EHC) plan, with free transport to their allocated school. Miss Y says her son cannot use public transport and the Council has wrongly relied on the home to school distance to refuse her request. She also says the Council has not properly considered the information she has provided.

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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. 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

4. I considered evidence provided by Miss Y and the Council as well as relevant law, policy and guidance.
5. Miss Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
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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What I found

Law and guidance relevant to this complaint

7. The statutory guidance ‘Travel to School for Children of Compulsory School Age’ says councils need to assess eligibility on the grounds of special educational needs, disability or mobility problems on a case-by-case basis. Councils should take account of the child’s physical ability to walk to school and any health and safety issues related to their special educational needs, disability or mobility problems. It may take account of whether they would be able to walk to school if they were accompanied by an adult.
8. A child will not normally be eligible solely because of their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves. 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. We would expect to see evidence of the council’s decision on accompaniment based on the individual circumstances of the case.
9. The law allows councils to meet their duty for eligible children in a number of ways, as long as the council has the consent of the parent. With the agreement of a parent, the council might:
• provide expenses to enable the parent to make their own travel arrangements for their child;
• pay a cycling allowance to enable a child to cycle to school;
• provide independent travel training to a child where it is appropriate to do so
• provide someone to escort the child, for example when they are walking or wheeling to and from school.
10. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. Part 5 of 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.
11. The guidance says the appeal panel should notify the parent in writing of the outcome of their review within five days of the hearing. The letter should explain:
• whether they have upheld the local authority’s original decision;
• why they reached that decision;
• how the review was conducted;
• the factors considered in reaching their decision; and
• any other agencies or departments were consulted as part of the review.

Background summary of key events relevant to this complaint

12. Miss Y has a child, who we will call D. He attends a specialist secondary school named in his EHC plan. The school is 1.1 miles from D’s home address. Although D has access to free public transport under the Transport for London (TfL) scheme, Miss Y says D cannot use public buses due to safety concerns arising from their special educational needs.
13. D’s EHC plan says, “[D] can demonstrate a lack of understanding of safety. This means when [D] is outside of the home environment, [D] relies on close supervision to ensure [D] does not run into a road, which can happen if [D] is distracted or interested in something on the other side of the road. [D] has no awareness of dangers and would approach strangers and say, “hold my hand”. [D] is unable to recognise when to stop at a roadside without adult prompting and holding [their] hand. [D] is heavily reliant on adult support and supervision for [their] safety”.
14. Miss Y made an application to the Council on 26 June 2024 for D to receive home to school transport assistance. The Council considered the application on 18 July and on 31 July 2024 wrote to Miss Y with its decision to refuse the application.
15. The Council refused the application because it said D has access to public transport and has no health needs which impair their ability to use that transport with a parent or responsible adult. The Council also referred to the family’s ownership of a motability vehicle granted via Disability Living Allowance (DLA).
16. Miss Y appealed the Council’s decision on 9 August 2024. She confirmed the family no longer had access to the DLA car. The appeal panel considered the appeal on 19 September and on 1 October 2024 it wrote to Miss Y with its decision to refuse her appeal.
17. Miss Y asked for a second stage review of her application, which the Council considered and responded to on 12 December 2024. In summary, the refusal letter said:
• Despite the family no longer having access to a motability vehicle, D remains eligible to travel to school on free public transport.
• The distance between D’s home and school is just 1.1 miles.
• It remains the responsibility of parents to arrange collection of their children from school.
18. The Council reconsidered D’s case following confirmation of Miss Y becoming pregnant. On 4 March 2025 the Council wrote to Miss Y to confirm its decision to overturn the original refusal and to provide travel assistance in the form of a temporary taxi travel allowance until the end of the school year in July 2025.
19. In response to our enquiries, the Council advised this was a “good faith” offer based on Miss Y’s pregnancy and the difficulties she would face accompanying D to school. The Council maintains that D is ineligible for transport assistance.
20. Upon receipt of proof of D’s attendance at school, the Council agreed to backdate the taxi allowance payments to 20 January 2025.

Was there fault in the Council’s actions causing injustice to Mr Y and D?

21. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the process 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, regardless of whether the person disagrees with the decision made.
22. I have considered the information the Council took account of when deciding that D was not eligible for transport assistance. I find fault with how the Council assessed the transport application made for D for the following reasons.
• The appeal outcome letter does not show how the Council considered D’s ability to walk to school and the safety concerns Miss Y raised about their unpredictable behaviours. This is not in accordance with the statutory guidance and is fault. We asked the Council for evidence of its decision making and it did not provide any notes or minutes of the panel’s considerations. We therefore have uncertainty about whether the Council properly considered D’s case.
• The Council said it is not obliged to provide transport solely because a parent is unable accompany their child to school by bus or car. While the Ombudsman agrees that a parent’s availability is not in itself a consideration for eligibility, councils must consider each case on its own merits and clearly record its decision-making.
• The Council has relied on D’s access to a free bus pass as a reason to refuse the application. The Council said there is no evidence to suggest that D is unable to access a public bus with the help of an adult, such as a parent. However, the Council has applied the wrong test when considering D’s eligibility. The legal test for the Council is whether D cannot reasonably be expected to walk to school because of their SEN, disability or mobility problems. The test is not whether a child can safely travel on a public bus.

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Action

23. Within four weeks of our final decision, the Council will provide evidence to show it has:
• apologised to Miss Y for the fault found in this statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
• properly reconsidered D’s application for transport assistance. The Council should give careful consideration to D’s SEN and their need to receive close supervision from adults when in the community and especially when close to the roadside;
• if the Council maintains that D is not eligible for transport assistance, it will offer a fresh appeal with a new panel and clerk (in person where appropriate). The panel should be given clear information about D’s SEN and whether they can safely walk to school with the support of an adult; and
• if the Council decides to grant transport assistance, and the decision is based on the same circumstances that applied at the time of Miss Y’s original application on 26 June 2024, the Council should make a payment of £250 in recognition of the distress caused by the failure to reach this decision sooner. Upon receipt of proof of D’s school attendance, the Council should also backdate the taxi allowance to September 2024; and
• if the Council decides to offer another travel allowance from September 2025 it should obtain Miss Y’s written consent before doing so.
24. Within eight weeks of our final decision, the Council will also:
• remind staff about the importance of properly considering an applicant’s specific circumstances when making transport decisions. In line with the Ombudsman’s ‘Principles of Good Administrative Practice’ the Council should remind staff of the importance of ensuring decisions are properly recorded;
• remind staff of the need to consider a child’s ability to walk to school rather than their ability to use a bus service; and
• remind staff of the requirement to seek the applicant’s consent before providing travel expenses, such as a taxi allowance.
25. For the actions listed in paragraph 24, the Council will provide us with evidence such as staff training, a briefing paper or minutes of a meeting.

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Decision

26. I find fault causing injustice to Miss Y and D which the Council has agreed to remedy with the actions listed in the section above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman