Summary: Mr X complained that the Council failed to provide suitable home to school transport. There was no fault in the Council’s decision making. It offered Mr X’s child a door-to-door taxi, which was suitable for the child’s needs. The Council was not legally required to offer transport that fitted around Mr X’s work or the family’s arrangements for their other children to get to school. There was some fault in the Council’s complaint handling for which it has offered Mr X a suitable time and trouble payment.

The complaint

1. Mr X complains the Council has not provided suitable home to school transport arrangements for his son, who has special educational needs (SEN) that meet the needs of his son and his other children.

Back to top

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)

Back to top

How I considered this complaint

5. I have considered:
• complaint documents
• relevant legislation, caselaw and guidance
• the Council’s policy for home to school transport.
6. Ms X and 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

Relevant law and guidance

7. 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)
8. 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)
9. The issue of non-stressful transport was considered in R V Hereford and Worcester CC ex p 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)).
10. In addition to arrangements for ‘eligible’ children under s.508B, councils also have discretion under s.508C to go beyond their statutory duties and provide transport arrangements to children who are not entitled to free transport. ‘Travel arrangements’ are defined as the provision of transport, provision of an escort, payment of travel expenses or allowances.
11. The Children Act 1989, section 17 requires local authorities to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under s.17. Statutory guidance Working Together to Safeguard Children says assessments should be completed within forty-five working days from the point of referral.
12. Assessments should take account of the needs of the whole family, while some services may be offered directly to the disabled child, services may also be offered under s.17 to parents or siblings and can be provided via direct payments.
13. The Children Act 1989 (Schedule 2 para 96)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. The Children Act 1989 s.17ZC (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children both where they receive a request for assessment and where ‘it appears to the authority the parent carer may have needs for support’.
14. Where a council has ‘previously carried out a care-related assessment of the parent carer in relation to the same disabled child cared for’ the assessment duty applies ‘if it appears to the authority that the needs or circumstances of the parent carer or disabled child cared for have changed since the last care-related assessment’ (S.17ZC(7)).
15. The Department for Education’s statutory guidance for home to school transport says councils should have both a complaint and an appeals procedure for parents to follow should they have cause for complaint about the service, or wish to appeal about the eligibility of their child for travel support. It says appeals should have two stages: Stage one conducted by a senior officer and stage two by an appeal panel independent of the process to date. The appeal panel should consider written and verbal representations from both parents and officers involved.
16. Appeals can be brought against:
• The travel arrangements offered to the eligible child
• The child’s eligibility for transport
• The distance measured
• The safety of the route.

The Council’s policy

17. The Council’s policy for home to school transport provides free transport where required to the nearest suitable special school. The parent or carer of a child with an Education, Health and Care (EHC) Plan has the right to request a personal budget for all or some of the provision. In providing a personal budget the Council would have to be satisfied that:
• Any different arrangements would meet the needs of the child/young person; and
• No additional costs would be incurred by the Council.
18. The Council’s policy provides a two-stage review process for parents/carers. Stage one is an appeal / review by an Officer in the Transport team. Stage two is a review by a senior officer in the Education Service.

What happened

19. Mr X’s son has an EHC Plan. Mr X says his son attended a primary school some distance from home as this was deemed the most suitable school to meet his needs. His younger siblings therefore also joined the same school. Mr X’s son left this school to move to a special school in 2019. The Council provided transport to the special school with a pickup time of 0750.
20. Mr X works away frequently and is not able to help with getting the children to and from school.
21. Mr X’s son transferred to a different special school in September 2021.The Council agreed to provide free home to school transport to this school for Mr X’s son via taxi. Mr X says the Council changed the timings of transport and the provider and this made the transport unsuitable.
22. Mr X says the taxi pick-up time was too late for Mrs X to get the other children to their school on time, as this is several miles away. Mr X said the timing prevented them taking up the offer of a taxi. Mr X says after discussion, the Council did offer an 0815 pick-up which would have worked, but then withdrew this.
23. The Council considered Mr X’s appeal at stage one but decided the arrangements offered were suitable and an earlier time could not be agreed. A personal budget was also considered. The Council found an earlier time would lead to significant additional costs for the Council.
24. The Council considered the complaint under its stage two process, which was by a Senior Officer not previously involved in the case, not an independent panel.
25. The Officer suggested the other children use a breakfast club at their school. Mr X said this led to increased costs and was problematic as his son would have to travel in the car to his siblings’ school and could not be left unattended when Mrs X took the other children into school. Mr X also told me there was no breakfast club place available and he already paid for after-school club for the other children to accommodate the taxi at the end of the day.
26. Mr X says these additional costs were ‘discrimination by association’.
27. The stage two response considered the representations made by Mr X. It said the Council’s transport team could not help towards breakfast club costs. It acknowledged Mr X had explored whether his son could be taken to school early by Mrs X, but the special school did not have provision for early arrivals. The Officer suggested Mrs X take the other children to school early, using the disabled parking bay at that school from where she could escort the other children into school within sight of her son. Mrs X would need to leave the school by 08.25 (when the gates shut) but this would allow time to transport her son to school twenty minutes away. The Council indicated it was willing to offer a mileage allowance between the two schools if Mr X took up this option. Mr X told me this would require use of the breakfast club, which did not have places and would incur extra cost, as the children could not go into class until 0845. It also did not solve that his son was distressed by not going directly to his school by taxi.
28. Mr X complained the stage two appeal was not conducted by an appeal panel and so was not in line with government guidance and about the additional costs of the breakfast club. Mr X said his son would find it disruptive to go to the primary school and then on to his own school, as he had an established routine of travelling to school by taxi. Mr X complained the Council had failed to inform him of his right to go to the Ombudsman.
29. Mr X told me his son had previously been assessed by children’s social care and carers had been provided. The family paused this support during COVID-19. Mr X told me he reached out to children’s social care and the SEN team for support in changing the transport decision. Mr X told me these efforts were unsuccessful.
30. However, the Council told me Mr X spoke to a family support worker on 2 September about his concerns around school transport and a team around the family meeting was held on 10 September. Mr X asked for support to be reinstated so a carer could look after his son in the morning, put him in the taxi and lock the house up. The Council contacted a provider who said they did not have capacity and were not comfortable with this suggestion. The Council says it told Mr X that a new assessment would be required and any changes to provision would need to go to a panel for approval.
31. The Council says that on 21 September Mr X told the family support worker his two transport appeals had been unsuccessful. Mr X said school transport was taking Mrs X four hours a day. Social care made enquiries of another provider and started an updated assessment in early October. Mr X told social care he had identified providers who could assist. The assessment was completed in November and a request for a change in provision went to panel on 17 November and was approved. Care support started on 22 November so Mr X’s son could use the taxi with support from a carer and Mrs X could take the other children to school.
32. Mr X wants the Ombudsman to provide redress for the period between September and November when Mrs X was transporting all three children. Mr X says his son found the arrangements very distressing.
33. The Council told me that its home to school transport policy is in the process of being reviewed and signposting of families to the Ombudsman will be considered as part of that review which is due to be completed by the end of May 2022.

Analysis

34. The Council has applied the law and its transport policy correctly. Mr X’s son is entitled to free home to school transport and it has provided a door-to-door taxi. This discharges the legal duty of the Council to Mr X’s son, who is the only eligible child in the family under s.508B Education Act.
35. Suitability of transport relates to whether the mode and method of transport is suitable for the eligible child only. The obligation on the Council is to ensure the eligible child can travel to and from school ‘without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer…[and] to make such arrangements as it considers necessary for him to travel in safety and in reasonable comfort’. It is a judgment for the Council what arrangements are necessary. It has decided a taxi is suitable for Mr X’s son and Mr X acknowledges a taxi is a form of transport and routine his son is used to and is what the family wanted.
36. The law and guidance do not require the Council to consider the needs of other children within the family under s.508B if they are not also ‘eligible’ children or to provide a taxi at a time convenient to meet the needs of other family members.
37. A Council can consider providing discretionary transport support under s.508C. The Council considered this but decided the Council’s transport team could not fund a before and after school club from the transport budget. This is correct, only travel arrangements can be funded under s.508C, not childcare costs. The Council could have transported the other children to school (and Mrs X transported her son) however this would not have solved the problem of Mr X’s son being distressed at no longer travelling by taxi, and the Council was not obligated to do so as such an offer would be discretionary.
38. Councils have limited transport budgets and cannot provide discretionary help to every family with children in different schools, especially where a family has chosen a school that is not their nearest available school. Advising families in such situations to move other children to nearer available schools or make their own childcare arrangements may feel harsh to families but would not be fault.
39. Councils can signpost families to other support such as financial support with childcare or, in the case of parent carers, support that might be available from social care. In this case Mr X contacted social care himself.
40. I find social care did complete a timely assessment when Mr X requested support. The Council has referred to guidance (‘Working Together’) that assessments should be completed within forty-five working days. The case was flagged for a new assessment at the meeting on 10 September and the assessment should have been completed by 12 November. The recommendations from the assessment went to panel on 17 November and provision was in place by 22 November. I have therefore not found delay by social care once support was requested and so have not asked the Council to provide a remedy for the period between September and November when carers were not in place.
41. Mr X says additional costs of before and after school support for his other children arise only because his son attends a special school. However, this situation also applies to many families without disabled children where siblings are allocated different schools or are of different ages. The law puts the responsibility on parents to get their children to school where the children are not eligible children. This is a matter parents need to consider when choosing schools not local to their home.
42. Mr X is correct to say the Council’s stage two appeal process did not follow the Government's guidance and he was not signposted to the Ombudsman. This was fault. Mr X says this put him to additional time and trouble finding out about the correct process.
43. However, I do not consider the fault in the Council’s appeal process casts doubt on the outcome of Mr X’s appeal, because I consider his grounds of appeal (that arrangements were not suitable for other family members) were misconceived. I do acknowledge Mr X considers it an injustice that his case was not considered by an independent panel in line with Government guidance.
44. Mr X could only appeal:
• The travel arrangements offered to his son, who is the only ‘eligible’ child under s.508B
• His son’s eligibility for transport
• The distance measured
• The safety of the route.
45. Mr X did not have a right to appeal that travel arrangements are unsuitable for siblings or caused stress to other members of the family, although it was good practice for the Council to explore with Mr X whether a personal budget or alternative arrangements that did not lead to additional costs to the Council was an option.
46. In response to my draft decision, Mr X says the inconvenient timing of the taxi caused his son distress as his son had to travel in the family car rather than use the taxi. Mr X’s son’s distress did not arise because the transport arrangements offered by the Council were unsuitable, but because the family did not use the transport arrangements offered. The injustice is not linked to any fault by the Council.
47. Mr X was able to come to the Ombudsman, so while the Council was at fault in failing to refer him to us, this has not prevented his complaint being considered. The Council’s failure to correctly signpost Mr X did cause him some inconvenience. The Council has offered to pay Mr X £100 for the time and trouble caused. This is a suitable remedy.

Back to top

Agreed action

Within four weeks of my final decision:

48. The Council will pay Mr X £100 for the injustice caused by errors in its handling of his complaint.

Within three months of my final decision:

49. The Council should include as part of its review of its transport policy that its appeal arrangements are not currently in line with the Government guidance, as there is no ability to make representations to an independent appeal panel.

Back to top

Final decision

50. I have completed my investigation. I have found no fault by the Council in the way it has made the transport decision. There was some fault in the in the handling of the complaint. I am satisfied the agreed actions set out above are an appropriate remedy to the complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman