Summary: There was fault in the way the Council considered an application for free home to school transport made on SEN/disability grounds. The Council failed to follow the law or its own policy to carry out an individual assessment of need including how behaviour, SEN or sensory needs may impact on Y’s ability to walk. The fault casts doubt on the decision reached. The Council will retake the decision, apologise, make a distress payment and carry out service improvements.

The complaint

1. Mr X complains about the way the Council decided to refuse his home to school transport application for his child who has special educational needs (SEN) and an Education, Health and Care (EHC) plan.
2. Mr X says this has caused financial hardship and led to his child missing out on school as they arrive at school late each day.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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

5. I have considered information provided by Mr X and the Council including the complaint correspondence, application and appeal documents and the Council’s policy.
6. I have considered:
• The Education Act 1996
• Statutory guidance: Home to school travel and transport guidance
• Ombudsman’s Guidance on Remedies
• Ombudsman’s Focus Report: All on board? Navigating school transport issues.
7. I have spoken to Mr X by telephone.
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.
9. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

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.
11. ‘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)

12. Eligibility for children who cannot reasonably be expected to walk to school because of mobility problems or because of health and safety issues related to their special educational needs (SEN) or disability must be assessed on an individual basis to identify their particular transport requirements. (Department of Education, 2014, Home to school travel and transport guidance) Usual transport requirements such as statutory walking arrangements should not be considered when assessing transport needs of children eligible on SEN or disability grounds.
13. The main body of the statutory guidance does not specify how a council should assess particular transport requirements but this can be inferred from the advice on appeals. The guidance on appeals says councils must give written notification setting out:
• The nature of the decision reached;
• How the review was conducted;
• Information about other departments or agencies consulted;
• What factors were considered;
• The rational for the decision reached.
14. It is therefore expected councils will seek necessary evidence to be able to accurately assess the individual child’s transport needs.
15. In deciding whether a child of statutory school age cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’, a council will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child, a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The expectation is a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so (Department of Education 2014 home to school travel and transport guidance). 
16. 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.
17. Councils should have a 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)
18. 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. (Annex 2 of the guidance)

19. Where a council decides a child is not an eligible child under s.508B Education Act 1996 and not eligible for statutory support, councils can still decide to provide discretionary support under s.508C Education Act 1996.

Key events

20. Mr X applied for free home to school transport for his child, whom I shall refer to as Y. Y moved school due to their primary school being unable to meet their SEN. This meant they no longer attended the same school as their sibling.
21. The school was the only school named on his child’s Education, Health and Care (EHC) plan and so is Y’s nearest suitable school for transport purposes. The school is 2.1 miles from the family home.
22. As Mr X has two children, Y has to walk first to the sibling’s primary school and then on to their own school. As Mr X leaves for work at 7am, his wife must accompany both children. Both schools start and finish at the same time, so Y misses a portion of each school day by arriving late or leaving early.
23. Mr X’s application referred to Y having difficulties when walking due to their SEN, behaviour, sensory differences, and to physical difficulties walking the distance required. Y also needs adult supervision when walking. Mr X provided professional reports to support his application.
24. The Council refused the application at first consideration and on appeal on the basis the school was withing the statutory walking distance of three miles and Y did not have a physical disability or medical condition that prevented him walking. There is no reference to the professional evidence Mr X submitted in the Council’s consideration of the case. The appeal panel found the primary school had a breakfast club but the family stated they could not afford this as they were using taxis to get the children to and from school. The appeal panel found the law and Council’s policy were correctly applied and there were no exceptional reasons to depart from the Council’s usual policy.
25. The Council’s policy for applications made on the grounds of SEN, disability or mobility issues says: ‘Some children or young people have a SEN or disability which makes walking to school unreasonable even if the child lives within a short distance of the school. For these children and young people, assistance with travel will be offered based on assessment of need…The Council will also consider whether it is reasonable to expect a parent or carer to accompany the child to enable them to travel to school’.
26. In late 2022, Mr X’s wife had a fall which meant she was unfit to accompany the children. A request for emergency transport was made and accepted by the Council. This is currently being extended month to month based on medical evidence.

Analysis

27. The Council’s decisions refer to statutory walking distances, although these are not relevant where an application is made on SEN/disability/mobility grounds.
28. The Council’s decisions refused transport on the basis Y did not have a physical disability or medical condition that prevents walking. The legal test and Council’s policy does not limit eligibility to physical disabilities or medical conditions that mean a person is unable to walk. The test includes children whose SEN may affect their ability to walk, for example because of sensory issues, behavioural or safety issues.
29. There is no evidence the Council considered Mr X’s representations or professional reports about his child’s SEN / behaviour / sensory difficulties or considered how these may affect Y’s ability to walk safely. This is fault and casts doubt on the decision reached. There is no evidence the Council gathered any evidence or carried out the individual assessment of need required. Where applications are made on the grounds of SEN/disability/mobility grounds the onus is on the Council to satisfy itself the child can walk safely, accompanied or unaccompanied. It is not clear to me the Council has done so.
30. The Council also has to consider whether Y can walk only if accompanied, and if so, if it is reasonably practicable for Y’s parents to accompany him taking into account a range of factors such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.
31. Only once the Council has satisfied itself the child is not an eligible child under s.508B, should it go on to consider whether it should offer discretionary support under s.508C for any exceptional circumstances.

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Agreed action

Within four weeks of my final decision

32. The Council will review the application and make a fresh decision, with reasons explaining:
• How the Council has assessed Y’s ability to walk, accompanied or unaccompanied, referring to evidence gathered or submitted, or face-to-face assessments undertaken.
• Whether the Council considers it is reasonably practicable to expect a parent to walk with Y to and from school.
33. If the Council again decides not to award transport, it will provide Mr X with the same rights of appeal to stage one and stage two as with his original application.
34. If the Council overturns its previous decision, it will offer Mr X a financial remedy for the period Y was without transport. If Mr X and the Council cannot agree a figure, then Mr X may bring this matter back to the Ombudsman to consider.
35. The Council will pay Mr X £250 for his time and trouble bringing the complaint and the injustice that his application was not considered correctly in the first place.

Within two months of my final decision

36. The Council will ensure all relevant staff and panel members have refresher training on how to assess applications made on the grounds of SEN and mobility needs.
37. The Council will ensure all decision letters set out the rationale by reference to the representations and evidence gathered about the child’s SEN/mobility/disability needs.
38. The Council will provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault in the way the Council considered an application for free home to school transport made on SEN/disability grounds. The Council failed to follow the law or its own policy to carry out an individual assessment of need including how behaviour, SEN or sensory needs may impact on Y’s ability to walk. The fault casts doubt on the decision reached. The Council will retake the decision, apologise, make a distress payment and make service improvements. The Complaint is upheld.

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Investigator's decision on behalf of the Ombudsman