Summary: Ms X complains the Council did not provide suitable school transport for her disabled daughter. She says the taxi service provided by the Council caused her daughter stress and anxiety and was not reasonably safe. Ms X said the Council’s actions meant she had to take her daughter to and from school, incurring time and trouble to her. We found fault by the Council and the Council has agreed to provide a remedy to recognise the injustice identified.

The complaint

1. Ms X complained the Council did not provide suitable school transport for her disabled daughter. She said the taxi service provided by the Council caused her daughter stress and anxiety and was not reasonably safe.
2. Ms X said the Council’s actions also caused the family avoidable stress. She said she had to take her daughter to school and then wait in the carpark until school finished before taking her home. Ms X said this was because the distance from home to school was too far to travel twice in one day. Ms X said this incurred time and trouble to her. She would like the Council to provide transport suitable for her daughter’s needs and provide a financial remedy to recognise the time taken and the stress to the family.

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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. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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.
7. 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

8. I discussed the complaint with Ms X and considered the information she provided.
9. I made enquiries to the Council and considered the information it provided.
10. Ms X and the Council provided comments on an initial draft of this decision. I considered their comments and issued a revised draft decision.
11. Ms X and the Council have had the opportunity to comment on the revised draft decision. I have considered their comments before making a final decision.

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What I found

School travel arrangements

12. 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. ‘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)

Home to school travel and transport guidance

13. Statutory guidance published in 2014 says for arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.

The Council’s Special Educational Needs and Disabilities School Transport guidance

14. The Council’s guidance sets out the standards parents can expect if their child receives Special Educational Needs and Disabilities (SEND) school transport. It says, “We will monitor our contracts with operators to ensure that the service provided is safe, reliable and meets your child’s needs”.
15. The guidance also says, “The transport operator will:
• Make sure that their transport crews are fully aware of your child’s travel needs assessment
• Arrange for you and your child to meet the transport crew before the transport starts.

The Council’s Home to School Transport Policy (0 to 25 Year Olds)

16. The Council’s policy says students of all ages with SEND who are eligible for transport are able to apply for a Personal Transport Budget (PTB), which is awarded at the discretion of the Council.
17. The policy says the Council will take into consideration, alongside discussion with the family, the special educational needs and disabilities of the pupil, the travel distance, and whether the pupil is able to travel alone or if they need to be accompanied.
18. The policy also said, “As every family’s circumstances are different we are unable to determine an approximate upper limit”.

Public Sector Equality Duty

19. The Public Sector Equality Duty (PSED) requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:
• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010;
• advance equality of opportunity between people who share a protected characteristic and those who do not, and
• foster good relations between people who share a protected characteristic and those who do not.
20. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Principles of good administrative practice

21. In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes:
• Stating the criteria for decision making and giving reasons for decisions
• Keeping proper and appropriate records
• Explaining clearly the rationale for decisions and recording them

Background

22. Ms X’s daughter, Child Y, has an Education, Health and Care (EHC) plan and attends an independent school. Child Y has several diagnoses including Autism Spectrum Condition (ASC) and severe anxiety.
23. Prior to attending the independent school, Child Y was absent from school for several months due to her severe anxiety.
24. In June 2022, the Council carried out a travel assessment regarding transport for Child Y to the independent school.
25. In August 2022, the Council told Ms X it would provide school transport for Child Y, starting in September 2022. The Council said a private taxi company, Company A, would take Child Y to and from school. The Council said Child Y would be accompanied to and from school by a chaperone, or driver’s assistant.

What happened

26. This chronology includes key events in this case and does not provide details of everything that happened. In this statement I have not referred to all the information provided by Ms X and the Council; however, I have not ignored its significance.
27. Ms X contacted the Council in September, October and November 2022 to raise several concerns about the service provided by Company A. Among her concerns, Ms X said the taxi driver was working night shifts before taking Child Y to school, which she considered to be dangerous, and on one occasion, Ms X said the taxi smelled strongly of cigarette smoke. Ms X also said the driver’s assistant spoke almost no English and that they and the driver spoke to each other in another language. Ms X said this left Child Y feeling isolated and anxious.
28. Ms X’s partner also contacted the Council on 2 November 2022. He said Ms X was driving Child Y to school and was waiting in the car park all day so that she could collect Child Y and take her home. Ms X’s partner said Ms X was open to employing someone with a car and to arranging the school transport herself.

Ms X’s complaint

29. Ms X complained to the Council on 11 November 2022. She said she considered the Council had not met its duty to provide transport for Child Y and the service provided was not in line with statutory guidance. Ms X said the Council was required to enable Child Y to travel to school in reasonable safety and without “stress and strain”. Ms X repeated her concern that the driver’s assistant was unable to communicate with Child Y and said this meant they were unable to meet necessary safeguarding requirements. Ms X said without a reliable transport service, the difficulties facing Child Y due to her disability would prevent her from getting to school. Ms X said the matter had negatively impacted her mental health and had resulted in her not being able to work.
30. The Council provided its stage one complaint response on 5 December 2022. It said it expected all staff on its contracts to speak to the clients in English, but there may be times when the driver and assistant may speak to each other in another language. The Council said drivers and their assistants are only issued with the required identity badge which allowed them to provide the service once they had attended the Council’s training course. It said there is no formal English language test, but drivers and assistants had to demonstrate they understood the course content to be awarded the badge.
31. The Council said its PTB scheme was discretionary and that it had made an initial offer of payment to Ms X, based on the distance from home to school and the number of days Child Y attended. The Council said it had subsequently enhanced its offer, but Ms X had declined this. It said Ms X had requested a larger amount so that she could source her own transport, but the amount requested was “far in excess of what can be offered through the PTB scheme”. The Council said its offer of transport was still available, as was the enhanced offer.
32. Ms X replied to the Council on the same day and asked it to escalate her complaint to stage two. She said the Council had missed the point of her complaint and said the problems she had experienced with Company A had caused stress to Child Y. Ms X also said she considered the service provided by Company A was not reasonably safe. Ms X said the amount offered as part of the PTB scheme was not enough to pay for a driver and an assistant. Ms X maintained the driver’s assistant was not able to effectively reassure Child Y or reduce her anxiety, and said the Council had not addressed the issue regarding the assistant’s ability to communicate with a child with ASC and high levels of anxiety.
33. The Council responded to Ms X on 13 December 2022. It said it had decided not to progress the complaint because it considered it would not lead to a different outcome. The Council said Company A was the contracted transport provider and the concerns Ms X raised were not sufficient cause to remove the contract from them. It said it expected any concerns about Company A to be addressed through its contract monitoring.
34. Ms X remained dissatisfied with the Council’s response and brought her complaint to us.

What happened next

35. Ms X says she is currently unable to drive Child Y to school due to health reasons. She says the Council provided a temporary taxi service with an alternative transport operator and has put the contract for school transport provision out for tender.

Analysis – Ms X’s concerns about the service provided and the Council’s subsequent monitoring of the contract

36. Ms X complained the Council did not provide suitable school transport for Child Y. She says the concerns she raised meant the taxi service provided by the Council was not reasonably safe and caused Child Y stress and anxiety.
37. The Council’s standards as published on its website state it will monitor its contracts with operators “to ensure that the service provided is safe, reliable and meets your child’s needs”. As part of its initial response to our enquiries, the Council said it did not monitor its contract with Company A.
38. However, following the issue of the initial draft decision, the Council provided additional information regarding this matter. It says the information initially provided was to highlight the Council has a scheduled period at the beginning of each academic year to investigate and resolve urgent issues as they arise. The Council says during this period, resources are focused on reactive rather than proactive contract monitoring. The Council acknowledges this explanation was not made clear in its previous correspondence but says it did carry out reactive monitoring of the contract relating to Ms X’s transport provision.
39. The Council says it considers it has made safe and appropriate transport arrangements in accordance with Child Y’s assessed travel plan and has provided additional information to support its explanation of reactive contract monitoring.
40. I have reviewed the additional information provided by the Council, including correspondence indicating the Council addressed the issue of smoking in the taxi with Company A. The information also indicates the Council considered Ms X’s concerns about the driver’s assistant’s ability to communicate with Child Y, and considered what, if any, changes could be made to the travel arrangements regarding this issue. The evidence provided refers to the Council’s acknowledgement that Ms X considered asking for another assistant but did not want any changes to be made to the contract without her permission. The Council’s records state a change of assistant was contingent on a number of “meet and greet” sessions taking place beforehand, to ensure Child Y was comfortable with the change. The Council says Ms X subsequently asked for a PTB as an alternative.
41. I acknowledge Ms X strongly disagrees with the Council’s decision that it provided appropriate transport for Child Y. However, 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 processes an organisation 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 a complainant disagrees with the decision the organisation made.
42. The Council’s policy does not distinguish between reactive and proactive contract monitoring. As a result, and based on the additional information provided, the Council’s actions were in line with its policy to monitor the contract; it discussed Ms X’s concerns with her and with Company A, and considered whether amendments to the provision were appropriate. I have considered the steps the Council took to consider Ms X’s concerns, and the information it took account of when deciding that the transport offer was suitable. I have found no fault in how the Council made its decision, and therefore cannot question whether that decision was right or wrong. As a result, the Council is not at fault regarding this aspect of the complaint.

Public Sector Equality Duty

43. As part of our enquiries, we asked the Council to provide evidence to demonstrate how it considered its duties under the Equality Act 2010 and the Public Sector Equality Duty (PSED) when considering Ms X’s concerns. The Council’s initial response referred only to its stage one complaint response and said no further information was available regarding this matter. However, following the issue of the initial draft decision, the Council provided additional information which it says demonstrates it had regard to its duties under the Equality Act 2010.
44. The Council says on receipt of a concern or complaint, its first action is to consider the SEND travel assessment. It says as a result, it reviewed and considered Child Y’s travel assessment when Ms X raised her concerns.
45. The additional information provided by the Council does not demonstrate how it reviewed the travel assessment. However, it does indicate the Council discussed the issues raised by Ms X, including the travel assistant’s ability to speak English. The records show the Council acknowledged a change to the provision of a travel assistant was contingent on several meet and greet sessions taking place. This demonstrates the Council considered its duties under the PSED as it indicates the Council considered Child Y’s specific travel needs and the potential impact to Child Y of providing an alternative travel assistant. This is in line with the broad purpose of the PSED (to ensure equality considerations are reflected into the delivery of services). As a result, the Council is not at fault regarding this aspect of the complaint.

Steps taken before school transport commenced

46. The Council’s website says the transport operator will arrange to meet with the parent and child before transport starts and says the operator will contact the parent to set this up. The Council’s initial response to our enquiries said it identified that the operator did not arrange such a meeting.
47. However, following the issue of the initial draft decision, the additional information provided by the Council includes an email dated 15 November 2022. This refers to a meeting on 22 September 2022 between Ms X, Child Y and a representative from Company A. On this basis, the Council is not at fault regarding this aspect of the complaint.

The Council’s explanation of its PTB offer to Ms X

48. In its stage one complaint response, the Council said the amount requested by Ms X was “far in excess of what can be offered through the PTB scheme”. Ms X says the amount she suggested was based on her own calculations regarding the cost of employing a driver and a driver’s assistant. She said the figure she provided was not “set in stone” and she was willing to discuss the calculations further with the Council.
49. In its initial response to our enquiries, the Council said its PTB scheme is discretionary and will not be offered where the Council can arrange transport at a lower cost. It says it made an offer to Ms X of an amount which was enhanced from its initial offer.
50. I acknowledge the Council’s comments regarding its offer of a PTB. However, as stated at paragraph 18, the Council’s Home to School transport policy stated “As every family’s circumstances are different we are unable to determine an approximate upper limit” in relation to the PTB scheme. As a result, the Council’s explanation that the amount suggested by Ms X was far in excess of what the PTB scheme could offer was not corroborated by the PTB policy, as there is no stated upper limit. As a result, the information provided to Ms X regarding the Council’s consideration of her suggested figure is confusing and I have found this to be fault.
51. The Council says it accepts it could have been clearer in its explanation regarding the reasons it did not agree to the amount requested by Ms X. It acknowledges this will have been confusing and not helpful for Ms X to understand the Council’s overall position and the options open to her. The Council says it recognises the wording of the policy did not provide clarity for parents and carers, and says it has recently undertaken a consultation and engagement process on a revised Home to School transport policy. It says it has amended the wording of the policy to remove any confusion about potential upper limits of PTBs, and to explain the circumstances under which a PTB may not be considered appropriate.

The Council’s response to our enquiries

52. The Council’s initial response to our enquiries stated it did not monitor the contract with Company A and said it had no further information regarding how it considered its duties under the Equality Act 2010 and Public Sector Equality Duty. It also indicated no meeting took place between Company A and Ms X prior to the start of the travel provision. The initial draft decision was issued following consideration of this information.
53. The Council subsequently provided additional information which required the issue of a revised draft decision. The Council has apologised for not making the additional information available sooner.
54. The information and clarification from the Council which was provided in response to the initial draft decision should have been provided as part of the Council’s initial enquiry response. The Council’s failure to provide relevant information in a timely manner is fault.
55. Having identified fault, I must consider if this caused a significant injustice. Ms X says the Council’s actions caused avoidable stress and anxiety to Child Y, and to herself and the wider family. She says she had to take Child Y to school herself as she was concerned about the service provided by Company A. Ms X says she has to wait outside until the end of the school day to take Child Y home because the distance from home to school is too far to drive twice a day. Ms X says this has impacted her ability to work and has also impacted her other daughter, as she cannot be present and provide the support they need and request.
56. I acknowledge Ms X’s comments regarding the stated injustice to her and the family. However, we can only make recommendations relating to findings of fault. As there is no fault in how the Council made its decision regarding the suitability of the transport provision, I am unable to consider the stated injustice regarding Ms X’s decision to drive Child Y to school. The injustice caused as a result of the fault identified is the uncertainty and confusion caused by the Council’s explanation regarding PTBs and the frustration and raised expectations for Ms X caused by the Council’s incomplete initial response to our enquiries.

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Agreed action

57. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Ms X for the fault identified;
2. Make a payment of £200 in recognition of the uncertainty, confusion, frustration and raised expectations caused by the fault identified;
3. Review its provision of a taxi service for Child Y to take into account its duties under the Public Sector Equality Duty, including the consideration of a contract with a new service provider. The Council should demonstrate how it considers the potential service provider is able to understand and meet Child Y’s specific needs, in particular her ASC and severe anxiety. Should the Council decide Company A is appropriate to continue to provide transport, the Council should demonstrate how Child Y’s needs will be met moving forward;
4. Conduct further discussions with Ms X regarding an appropriate personal transport budget as an alternative to providing a taxi service;
5. Remind staff of the importance of retaining records to demonstrate how it has considered its general equality duty when making decisions and reviewing services, and
6. Remind staff that responses to Ombudsman enquiries provide all of the information requested and are checked for accuracy prior to issue.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have found fault by the Council and the Council has agreed to take the above action. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman