Summary: Mrs X complained the Council withdrew Child J’s school transport arrangements at short notice. She also complained about how the Council made this decision and about how it ensured it met Child J’s needs. We have found the Council at fault for its communication and for avoidable delay in trying to secure new transport arrangements. These faults caused Mrs X avoidable uncertainty and distress. We have not found the Council at fault for failing to risk-assess Child J’s transport arrangements, or for its approach to training. We have also not found the Council at fault for failing to discharge its duty to arrange school transport for Child J.

The complaint

1. Mrs X complains the Council stopped Child J’s school transport at short notice. She says the Council:
1. communicated poorly with her about this matter;
2. accepted the transport provider’s account without question, despite Mrs X’s concerns about this;
3. did not ensure that proper protective measures were in place on the journeys to and from school;
4. did not ensure the drivers and assistants working with Child J were properly trained; and
5. has failed to meet its duty to provide Child J with transport to school since it stopped the service.
2. Mrs X says this placed Child J at risk of harm on the day and prevented him from accessing education. It has also caused her and her son avoidable frustration, inconvenience and distress.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.

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Relevant legislation, guidance and policy

School Transport

7. 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 free. The relevant qualifying school is the nearest school with places available that provides education suitable 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 (SEN), 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)

Statutory guidance

8. The government has published statutory guidance for authorities, “Travel to school for children of compulsory school age.” I have referred to this as the Guidance in this statement. Local authorities must have regard to the Guidance when carrying out their duties to arrange travel to school for children of compulsory school age.
9. Relevant to the events in this complaint, the Guidance says:
1. an authority can meet its duties to an eligible child in many ways. Examples include providing expenses, to allow a parent to make their own travel arrangements, or providing someone to escort the child.
2. some children may need the authority to make arrangements to meet their needs. As an example, the Guidance says passenger assistants may provide support to some children on their journey, where required.
3. it is for the authority to decide if it needs to risk-assess arrangements and what is reasonably practical in each case. The Guidance says authorities may decide it needs to risk-assess some children’s travel arrangements, but it is unlikely the authority would need to complete a risk assessment for all children. The Guidance says matters the authority may need to consider include:
1. The child's medical needs and the likelihood of them needing emergency medical assistance while travelling; and
2. The child's behaviour, including their special educational needs or disability where relevant, and the likelihood of harm to the child or others while travelling.
4. authorities should ensure drivers and assistants working on dedicated school transport have undertaken suitable training. The Guidance says it is for the authority to decide the training required, how this should be delivered, and how often it should be updated.
5. authorities should work with travel operators, schools and parents to find positive ways to manage challenging behaviour wherever possible.
6. The authority should only withdraw the child's travel arrangements as a last resort and, in these circumstances, the authority should meet its duty to the child in an alternative way.
7. a parent’s working arrangements would not normally be considered good reasons for a parent being unable to accompany their child. The Guidance says this would apply to most parents and, in most circumstances, it would be reasonable for the parent to arrange to fulfil their responsibilities as both an employee and a parent.

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How I considered this complaint

10. I considered information Mrs X provided about the complaint.
11. I considered information the Council provided about this complaint.
12. Both Mrs X and the Council were able to comment on a draft version of this decision. I considered any comments I received before making a final decision.
13. 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

Background

14. Below is a summary of the key events leading to this investigation. It is not an exhaustive chronology of every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
15. Mrs X’s child, Child J, has special educational needs. At the time of the complaint, the Council provided Child J with transport to and from school, using the services of a local transport provider to do so. Child J travelled to and from school with a passenger assistant and driver.
16. In March 2023, Mrs X received a telephone call from Child J’s school, referred to in this statement as School Z. Mrs X says School Z told her there had been an incident on the journey to school that morning and the Council had withdrawn Child J’s transport service with immediate effect. Mrs X said School Z told her she would need to collect Child J at the end of the school day. Mrs X said she received this call late into the day, meaning she had little time in which to plan to collect Child J from school.
17. The Council told me Child J’s transport provider had given the Council little notice it would be withdrawing its service, due to the incident that morning. The Council told me it tried to contact Mrs X unsuccessfully by phone and then contacted School Z when it could not reach Mrs X. It says it later sent an e-mail to Mrs X that day, explaining that:
1. It was writing about Child J's behavioural issues on school transport.
2. The transport provider had taken measures to manage any risks associated with Child J's behaviour at first. However, the Council said there had been four incidents in the previous two weeks, with escalations in Child J's behaviour. The Council said the passenger assistant had withdrawn their services that day because of an incident when the transport operator had taken Child J to school.
3. Based on these recent incidents, the Council said it could no longer offer Child J a transport service. It said it could only offer a fuel allowance or personal transport budget.
4. it could not insist on any operator fulfilling the contract in the current circumstances. The Council apologised that this change was occurring immediately, without notice. It said it had been unaware of any issues until the transport operator contacted the Council earlier that day.
18. The following week, the Council says it asked School Z for support in re-evaluating Child J’s support needs and risks for transport arrangements. On the same day, Mrs X complained to the Council about what had happened. In her complaint, Mrs X:
1. said it was not acceptable the Council had contacted School Z and not Mrs X. Mrs X asked the Council why it had not contacted her to explain Child J would be left at School Z, with only two hours of the school day remaining.
2. said the transport operator did not care about Child J’s welfare, or how Child J would be able to return home, given their significant vulnerability.
3. said she had seen correspondence between the Council and the transport provider. She said the tone of the emails was unprofessional, uncaring and showed a poor attitude towards Child J.
4. said she had not experienced issues with other passenger assistants. Mrs X challenged the veracity of the account, and the quality of the service and protective measures in place. She also asked whether the transport operator’s staff were sufficiently trained in meeting Child J’s needs.
5. accepted Child J had displayed some challenging behaviour a few weeks prior, but said she addressed this on the day. Mrs X also said there was a limit to what could be done to address some of the behaviour arising from complex needs. Mrs X said Child J had been let down.
6. said, due to existing work commitments, Mrs X would be unable to transport Child J to School Z twice each day. She said the fuel allowance offered was not acceptable and asked the Council to act quickly to resolve this matter.
19. In the following days, the Council and School Z exchanged correspondence. School Z provided a risk assessment to the Council, but said its staff did not travel with Child J, so it could only comment on behaviours and risks relevant to the classroom environment.
20. The Council responded to Mrs X’s complaint. Mrs X escalated her complaint to the next stage of the Council’s complaints procedure. Mrs X:
1. disagreed the Council had to immediately suspend travel arrangements.
2. said that nobody had reported an incident to the school on Child J’s arrival. Mrs X was told at 13:00. Mrs X said this was unacceptable, given Child J’s vulnerabilities. She said the Council had abdicated its responsibility to School Z.
3. said the staff travelling with Child J that day did not understand Child J's needs and they had been unsuitable for the journey.
4. said the transport operator had told her it had been unaware of Child J's behaviours. Mrs X said she understood the Council’s transport service had documented all needs and behaviours. Mrs X said staff travelling without adequate training in relevant health conditions could potentially present a safeguarding issue.
5. said the suggestion that Child J needed to change his behaviour to allow transport was indicative of disability discrimination, given the known traits associated with Child J’s diagnosis. She said withdrawing the service because of traits associated with Child J’s diagnoses was also potentially discriminatory.
6. said she had received no telephone call from the Council since the incident. She challenged the Council's assertion it had tried to be supportive. She said the Council should have contacted her on the day to try and identify a way forward, rather than immediately withdrawing transport.
7. asked the Council to confirm it was looking for alternative arrangements and that it would include Child J’s transport in routes put out for tender for the following year.
8. thanked the Council for recognising the unprofessional emails exchanged between the Council and the transport provider. Mrs X was happy the Council agreed these were not acceptable.
21. In May 2023, the Council issued its final response to Mrs X's complaint. I have summarised the Council’s response as follows:
1. The Council appreciated Mrs X disagreed with its decision to immediately suspend transport. The Council said it regretted the impact of doing so, but said this had been necessary, given the nature of the incident. The Council said it needed to ensure Child J's safety and the safety of those travelling with Child J. The Council said it avoided such action if possible, but this was sometimes necessary where there were concerns the contracted transport arrangements could not meet the child’s support needs.
2. The Council said when it suspended arrangements, it was normal for parents and schools to organise their own travel arrangements temporarily. The Council recognised this could be challenging for parents, which is why it only took such action when necessary.
3. The Council said personal assistants had only a limited role in school transport arrangements. The Council said where a young person's needs were complex, this may go beyond what one could expect of a personal assistant. It said mitigation measures could not always overcome these challenges. The Council said it would work with schools to develop strategies in such circumstances, but if the situation could not be made manageable, it would explore alternative arrangements. These may include providing transport funding, asking parents to travel with the child, or asking the school to help with travel arrangements.
4. The Council apologised that Mrs X felt it had communicated poorly. It said it had been working hard to resolve the matter. It said it had discussed the matter with School Z and intended to do so again.
5. The Council said it continued to explore alternative transport arrangements, but did not know if other suitable arrangements would be possible, given the circumstances. It said these challenges would need to be addressed even if it found an alternative provider.
6. The Council said its offer of financial support remained. It said if Mrs X could take up this option, even temporarily, it could quickly put this support in place. It said it may also be able to provide financial support for any direct costs Mrs X incurred because of this arrangement. It said this may include costs for wrap around care, or childcare for another child.
7. The Council did not uphold Mrs X's complaint. It apologised for the distress Mrs X had experienced, as it said this had not been its intent.
22. In late May 2023, the Council met with School Z. Notes from this meeting show:
1. School Z said it believed Child J could successfully travel to school without incident, if new staff would travel with Child J. School Z provided its views on measures that could reduce risks while travelling.
2. The Council said it would try such arrangements, given School Z's views, though it noted the previous concerns. The Council said an experienced transport provider had delivered Child J’s transport and had been involved with Child J for several years. The operator was willing to reinstate arrangements in principle, but there were currently no suitable staff available.
3. The Council said it would approach other providers to see if they could put in place suitable arrangements as quickly as possible. The Council also said if other individuals, such as staff or family members, could help Child J with transport, the Council may be able to arrange a vehicle and driver.
23. Following this meeting, the Council wrote to Mrs X to provide an update. It detailed its discussion with School Z.
24. Between June 2023 and mid-August 2023, the Council says it tried repeatedly to secure a new transport provider for Child J, putting the contract out to tender on five occasions. The Council told me it secured new transport arrangements for the beginning of the 2023/24 academic year.
25. The Council said these arrangements were in place for the first few weeks of the new school term, in September 2023. However, it said it then had to suspend transport arrangements again, following a further incident. The Council told me it immediately offered Mrs X a personal travel budget, which Mrs X accepted.

Analysis

Complaint the Council communicated poorly with Mrs X about this matter

26. I have considered the Council's communication both on the day it suspended Child J’s transport and in the period that followed.
27. The Council says the transport provider did not report an issue on the day until late. The evidence I have seen supports this assertion. The Council says it tried to call Mrs X, but could not reach her. It says after speaking with School Z, it sent Mrs X an email explaining what had happened.
28. The Council told me it could not evidence the phone call it made on the day. I accept it may not be able to evidence this, though I understand Mrs X says she has no record of any such attempt. Despite the ambiguity around this call, the Council does not dispute it made no further effort to speak with Mrs X directly. While I note School Z later spoke with Mrs X, it was the Council that was responsible for the transport service.
29. The potential impact of suspending the service without notice was significant, given the uncertainty this would cause for Child J’s welfare. I believe the Council making a single attempt to contact Mrs X by phone was inadequate in this context.
30. The Council says it emailed Mrs X to explain what had happened and provided me with a copy of this correspondence. The correspondence provided was not an email, but a letter, in which the Council explains what happened and confirms its decision to suspend arrangements until further notice.
31. In the circumstances, I again believe the Council’s communication was inadequate. Though the letter is dated the day in question, there is no evidence to show when the Council sent it, though the Council told me it sent the letter to Mrs X in good time. The Council appears to have made no attempts to check Mrs X received this letter. I have also seen no evidence the Council followed up on Child J’s safety and wellbeing on the day, with either School Z or Mrs X.
32. Given the above, I have found the Council at fault for inadequate communication with Mrs X on the day it suspended transport arrangements.
33. This fault caused Mrs X an injustice. The Council not communicating effectively with Mrs X caused avoidable frustration and uncertainty about the basis for the Council's actions. It also left Mrs X uncertain about what would happen to both Child J and the transport arrangements going forward.
34. Mrs X also complained about the Council's later contact with her. The Council said it sought to support families in circumstances where it had needed to suspend transport arrangements. Mrs X disputed this, saying she had not received any telephone contact from the Council after it suspended transport arrangements.
35. Outside of its complaints procedure, the evidence I have seen shows the Council did not provide an update to Mrs X until late May 2023. At this point, Mrs X had not received any proactive updates from the Council and had made her own arrangements for almost two months. Again, given the specific circumstances of this case and the impact of suspending travel arrangements on Mrs X and Child J, this level of contact is inadequate. I have found the Council at fault for this.
36. This fault caused Mrs X an injustice. The Council missed opportunities to proactively contact Mrs X and explain its actions, provide support, and address any concerns or questions. Mrs X therefore experienced avoidable uncertainty and frustration arising from the Council's inadequate communication.

Complaint the Council accepted the transport provider’s account without question

37. Mrs X says the Council accepted the transport provider's explanation of events without question, despite her concerns about the veracity of this account. In doing so, Mrs X challenged the Council's assertion it had no choice but to suspend Child J’s transport arrangements.
38. The Council told me it considered Mrs X's account and the transport provider’s account. It said it decided the transport provider’s account was credible, because:
1. the provider had a record of working reliably to transport children with special educational needs.
2. there was no suggestion the provider had previously fabricated any incidents.
3. the director of the transport operator had investigated and verified the reports.
39. I asked the Council why it was satisfied withdrawing the service at short notice was proportionate, given Child J’s vulnerabilities and the impact of doing so. The Council told me:
1. It only suspended arrangements where there was a high risk to the child or to others, which could not be managed safely without further review and input from relevant professionals.
2. In this case, it received reports it considered serious and credible, from an experienced transport provider. These reports suggested there were potentially serious risks for Child J and others if they continued to travel under the current arrangements, despite the measures already in place to mitigate the identified risks.
3. It needed to balance its duty to provide Child J with transport against relevant safety considerations. It said where it had reason to believe the arrangements in place could result in harm, it would be irresponsible not to suspend and review the arrangements.
40. I recognise Mrs X strongly disagrees with the transport provider’s account of events. Nonetheless, the Council's rationale for accepting the reports it received was valid and I understand it had received no concerns about the conduct of the transport provider before this incident. I have not therefore found the Council at fault for how it considered this matter.
41. The decision to suspend arrangements was a professional decision for the Council, accounting for the evidence and information available. As set out in paragraph 4, if there was no fault in how the Council made its decision, we cannot question the outcome.
42. In this case, the Council can show it accounted for the reports it received and for its wider responsibilities, and it reached a decision on this basis. I have not found the Council at fault for how it took this decision. I therefore cannot question whether that decision was right or wrong.

Complaint the Council did not ensure that proper protective measures were in place

43. The statutory guidance does not mandate that councils risk assess travel arrangements for children or young people accessing transport services. However, it says councils may risk assess arrangements if they believe the circumstances require this.
44. I asked the Council if it had carried out a risk assessment of Child J’s transport arrangements. If it had, I asked how it had satisfied itself the measures in place mitigated against any identified risks. The Council:
1. said when seeking travel assistance, professionals working with the child - such as a caseworker or school staff - would provide information about the child's conditions and the potential risks. The Council said parents also reviewed and approved this information before submission. It said it used this information to ensure transport arrangements met the documented needs.
2. provided a copy of the transport request form submitted by Child J’s caseworker, setting out Child J’s needs.
3. said it awarded Child J’s contract to an approved provider. To become an approved provider, the Council said a provider had to evidence they had the appropriate licences and completed the required training. It said it had shared Child J’s needs with the provider when arrangements were first put in place.
45. I reviewed Child J’s transport request form, dated December 2021. The form sets out Child J’s behaviours and needs, as well as techniques and practical measures to help mitigate any risks. These measures include use of a specific harness while travelling, and states that passenger assistants travelling with Child J should keep clear distance during the journey. The form confirms Mrs X had seen the proposed measures. The Council told me these measures were in place and the provider had also used screens as a further protective measure.
46. It is unlikely to be practical for councils to keep a “watching brief” on whether the arrangements in place are sufficient on every journey. I would therefore expect the Council to check measures were in place when commencing travel arrangements, and to swiftly respond to any concerns about the adequacy of these measures afterwards. In this case, I understand the arrangements specified had been in place for some time, and that no concerns were raised before this incident. When this incident occurred and the provider raised concerns, the Council decided to suspend the travel arrangements so it could review them further.
47. Given the above, I have not found the Council at fault for how it risk-assessed Child J’s travel arrangements.

Complaint the Council did not ensure the drivers and assistants were properly trained

48. Mrs X questioned whether the transport provider was adequately trained in meeting Child J’s needs.
49. I asked the Council how it satisfied itself the transport provider and staff had the suitable training needed to deliver the service and meet Child J’s needs. The Council said:
1. it arranged driver and passenger assistant training for staff working with its providers.
2. it held this information centrally on its transport management system, allowing it to check provider compliance with training requirements.
3. it said the transport provider in question was an approved provider, meaning it was compliant with training requirements, held suitable licences, and was fully DBS checked.
4. it had awarded Child J’s transport contract to the provider because it was one of its most experienced providers. It said it had shared Child J’s needs with the provider at the outset.
50. The Guidance provides the Council with notable discretion on the training needed, how that training is delivered, and how often it should be updated. I consider the Council's actions compliant with the Guidance. I have not found the Council at fault.

Complaint the Council has failed to meet its ongoing duty to provide transport

51. The Guidance sets out ways an authority can meet its duty, confirming one such way is through providing expenses. It says when an authority withdraws the arrangements in place, it should meet its duty to the child in another way. It also says parental work commitments would not be considered good reasons for a parent not to accompany their child.
52. In this case, the Council withdrew agreed arrangements and immediately offered a mileage allowance. It later said it could also consider other expenses, such as wrap around care or childcare costs for another child. It also offered other measures, like providing a vehicle.
53. I would consider the Council adhered to its duty to provide transport arrangements, as the Guidance defines this duty. I have not therefore found the Council at fault.
54. Given Mrs X’s preferred arrangement was for Child J to travel accompanied with the transport provider, I have considered whether the Council acted quickly in trying to secure new arrangements.
55. The available evidence shows the Council sought the views of School Z swiftly in the days following the incident in March 2023. School Z provided its response on 23 March 2023. The Council decided it needed to meet with School Z to discuss the matter further. It did so on the 22 May 2023. In its final complaint response, issued in April 2023, the Council told Mrs X it was actively exploring new arrangements for Child J.
56. However, I have seen no evidence the Council took any action to secure new arrangements between the 23 March 2023 and the 22 May 2023. Following its meeting with School Z, the Council decided it could try to reinstate Child J's transport arrangements and began tendering the contract again at the beginning of June 2023.
57. There therefore appears to have been a period of approximately two months in which the Council took no action to secure new transport arrangements for Child J. The Council said it was seeking advice in this time, but accepted there was a substantial delay. I consider much of this delay was avoidable and have found the Council at fault for this.
58. I cannot say that but for this delay, the Council could have put new transport arrangements in place sooner than it did. While it is possible arrangements could have been reinstated sooner, it is also possible tendering the contract earlier would not have resulted in the Council awarding it sooner. The Council also told me it later had to suspend arrangements a second time. I also therefore cannot say, on a balance of probabilities, that any arrangements put in place earlier would have remained in place. Nonetheless, the uncertainty caused by this avoidable delay is an injustice to Mrs X in itself.
59. Mrs X said the Council may have acted in a discriminatory way by withdrawing transport because of behaviours linked to Child J’s diagnoses. As set out in paragraph 6, the Ombudsman cannot decide if an organisation has breached the Equality Act. Only the courts can decide this. We can consider whether a council can demonstrate it has taken account of an individual's rights when making its decisions.
60. In this case, the Council has explained it made its decision by balancing its duties to provide Child J with transport against concerns about Child J’s safety and the safety of those travelling with him. It decided it had to suspend arrangements and sought to discharge its duty in another way the Guidance allowed.
61. The Council can show it had regard for its competing duties in this case and considered Child J's rights and well-being in its decision making. I have not therefore found the Council at fault for this.

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Agreed action

62. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Mrs X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our Guidance on Remedies document.
2. Review, at senior officer level, the faults and injustice identified in this investigation, to identify any wider points of learning. The Council should also share the findings of this investigation with relevant officers.
3. Pay Mrs X £200 in recognition of the avoidable uncertainty she experienced because of the Council’s actions.
63. The Council should provide us with evidence it has complied with the above actions.

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Final decision

64. I have completed my investigation with a finding of fault by the Council, causing injustice. I have made recommendations to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman