Summary: Miss X complains the Council failed to provide the agreed transport for Child Y, and failed to backdate the transport payments. The Ombudsman finds fault with the Council for poor record keeping, delaying making the agreed payments for transport support, and for failing to provide the agreed transport. The Council has agreed to pay a financial remedy, implement the agreed transport and carry out service improvements.

The complaint

1. Miss X complains the Council has delayed paying the transport funding for her child.
2. Miss X complains the Council agreed to backdate the payment until September 2021 but now says it will only backdate until February 2022.
3. Miss X complains she has been caused financial loss because of the Councils delay paying the transport funding and backdate the payment.
4. Miss X complains the process for claiming transport is unfairly disadvantaging parents with disabilities.

Parts of the complaint I have not investigated

5. Part of Miss X’s complaint is the maladministration by the Council has caused a loss of earnings and wear and tear on her car.
6. The Ombudsman cannot consider loss of earnings or damages, only a court can do this. Therefore, the Ombudsman will not consider these parts of the complaint further.

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The Ombudsman’s role and powers

7. 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)
8. 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

9. I considered Miss X’s complaint and the information she provided. I also considered information from the Council.
10. I considered comments from Miss X and the Council on a draft of my decision.
11. 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

Legislation and guidance

Transport appeals

12. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
13. It 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. (Annex 2 of the guidance)

What happened

14. Miss X’s son, Child Y, has special educational needs, and started to attend a new provision in September 2021. He was due to have his EHCP finalised and confirmed.
15. In February 2022, Miss X applied for transport support for Child Y to get to the school.
16. Miss X says when the case was heard at the panel, the panel agreed verbally give support and that this would be backdated to when Child Y started at the school in September 2021.
17. However, Miss X says when the Council confirmed this in writing to her, it agreed only to backdate it to the date of her application for support. This meant she would not receive payment for five months of transport.
18. Miss X wrote to the Council escalate the matter to a stage 2 panel. In this request, Miss X said the panel had verbally agreed to backdate to the start of the provision.
19. Miss X’s request was heard at the stage two panel in July 2022. It the panel agreed to backdate the costs from February 2022 and agreed to put in place a taxi for Child Y.
20. Miss X complained to the Council that it was refusing to backdate the transport support despite this being agreed by the first panel.
21. The Council responded to Miss X’s complaint at stage 1. It said the payments would be backdated from February 2022. The Panel also agreed individual transport and a passenger assistant for Child Y until his EHCP was confirmed and agreed.
22. Miss X asked to escalate the complaint to stage 2. The Council responded saying it had considered the complaint again at stage 1 and invited Miss X to meet to discuss her concerns.
23. Miss X complained to the Ombudsman in November 2022 that the Council had failed to backdate the payments. She also said the Council was delaying the payments, and that it had not handled her complaint properly. Miss X complained the actions of the Council caused her to fall into debt as she could not keep up with the travel costs for Child Y’s provision.
24. During the Ombudsman’s investigation, the Council reversed its decision to only backdate from the time of the application, and agreed to backdate the support to when the provision started.

Analysis

Application for transport support

25. Miss X made the application to the transport panel in February 2022. She said this was because of delay and inconsistency in the process for Child Y’s EHCP.
26. As part of my investigation, I asked the Council to provide minutes from the stage one panel and any evidence of the panel outcomes.
27. The Council was not able to provide this and has not been able to identify why minutes were not taken. This was fault by the Council. The Ombudsman expects Council’s to be able to evidence its decision-making process. Where the decision-making process cannot be evidenced, the decision cannot be relied upon.
28. The Council has been able to provide minutes from the stage two panel which said payments would be backdated from February 2022 and transport will be arranged for Child Y.
29. Since the Ombudsman’s investigation, the Council has remade the decision from the stage two panel and decided to backdate the transport support.
30. On balance, I am satisfied the Council could have made this decision sooner and has delayed doing so. This has caused Miss X and Child Y distress and injustice, and has caused financial loss to Miss X.
31. From the correspondence from Miss X, I can see the Council started to make payments in January 2023. I understand the Council has agreed to backdate the payments, however it has not considered the financial impact of not making the payments for 16 months. Miss X has had no choice but to pay expenses using credit cards, which has incurred further charges.
32. I am therefore recommending the Council make any outstanding payments, and pay Miss X for inflation during this time using the current retail price index.
33. In the stage 2 panel response the Council also agreed to provide individual transport and a transport assistant for Child Y until his EHCP was agreed. I have not seen evidence from the Council that it has carried out this recommendation, or any rationale for why this has not occurred. This was fault by the Council causing Miss X further distress and time and trouble.
34. Part of Miss X’s complaint is the Council has not provided childcare for her other child If she is to continue to take Child Y to school. The stage 2 panel notes show the Council believed Miss X did not need childcare if the taxi was in place. However, as the taxi has not been in place, I cannot see the Council has reconsidered Miss X’s request for childcare in the interim. This was fault causing Miss X distress and confusion.

Equality Act

35. Part of Miss X’s complaint is the Councils system for applying for transport and filing costs unfairly disadvantages disabled people.
36. As part of this investigation I asked the Council to set out the process and how it had given due regard to its public sector duty under the equality act when considering Miss X’s complaint about her application for transport costs.
37. In response to this the Council said it “recognises the difficulties parents face regarding costs. As a result, the Council offers parents personal transport budgets where possible so that funding can be providing upfront (one term at a time) so that the parent has funding for their transport costs. The alternative to this is payment in arears at the end of each month, which it appreciates can be problematic”.
38. The Council also said it is “looking to actively promote personal transport budgets more broadly to parents to ensure they are aware of the option and the benefits. The Council also takes its duty under the Equality Act extremely seriously and is developing several initiatives to further improve accessibility (including simplifying information on the website, providing an animation to help explain school transport processes and producing easy to read versions of guidance documents).
39. The Councils approach demonstrates that it has had due regard for its public section equality duty. However, I am concerned Miss X spent a significant amount of time communicating to the Council the transport costs were causing financial distress. The Council did not tell her about the option it has available for providing the personal budget upfront. I consider this to be fault by the Council, causing Miss X further injustice.

Complaint handling

40. When Miss X first complained the decision from the Council did not reflect what the panel had told her, the Council it had recorded that it agreed to pay the costs from February 2022.
41. Miss X tried to escalate to stage 2, but the Council again considered her complaint at stage 1 and invited her to a tier two meeting.
42. Miss X also submitted an information request to the Council. She said she could not attend the tier two meeting until she had the evidence from the information request. Miss X said she was being obstructed from escalating as the Council insisted she provide evidence of her identity.
43. As part of this investigation, the Ombudsman asked why the complaint had not been considered at stage two. The Council said the complaint was at deadlock as it could not agree a way forward with Miss X because of the information required for an information request.
44. The Ombudsman cannot comment on how the Council has handled the information request, as this is a matter for the Information Commissioner.
45. However, the Council did not need Miss X to agree to meet to issue a stage 2 response. The Council could have issued a stage 2 response without meeting with Miss X.
46. However, I do not consider there has been any injustice to Miss X as the Ombudsman agreed to investigate her complaint without the stage two response.

Agreed action

47. Within 4 weeks the Council has agreed to

• Write to Miss X and apologise for the fault identified
• Pay Miss X any outstanding travel payments and make a payment calculated for inflation from September 2021 – January 2023. This calculation would be a percentage of the payments made between this period based on the RPI between January 2022 and January 2023. (13.4%).
• Pay Miss X the sum of £750 in recognition of the distress and time and trouble caused to her.
• Arrange the transport agreed at the stage 2 panel. The Council should also set out how long Child Y can expect to have the transport for and what Miss X should do when the transport ends.
• If the Council decides it cannot provide a taxi while the EHCP is finalised, it should review its decision about childcare and evidence how it has considered Miss X’s request.
• Pay Miss X the backdated childcare costs from September 2021 until the taxi is in place or a childcare decision has been made.
• Discuss with Miss X whether the alternative transport payment arrangement the Council has said it has available is suitable for this case.

48. Within 12 weeks the Council should

• Remind staff the importance of good record keeping and ensure that minutes are taken at every transport panel.
• Review how it ensures that any payments for transport are made in a timely manner.
• Review how the Council ensures those with disabilities can access the information about alternative forms of transport payments.

49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have now completed my investigation. I find fault with the Council for poor record keeping, delaying making the agreed payments for transport support, and for failing to provide the agreed transport.

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Investigator's decision on behalf of the Ombudsman