Summary: There was fault in the way the Council considered an application for free home to school transport. This caused inconvenience and distress to Ms X. Other parents who have been asked to accompany their child to a school beyond statutory walking distance may also be affected. The Council has now made an offer of transport to Ms X. It will also apologise, make financial payments for the impact when transport was not in place, and make service improvements.

The complaint

1. Ms X complains the Council and transport appeal panel failed to consider all relevant factors in deciding to provide a bus and companion pass to meet home to school transport needs of an ‘eligible’ child and requiring a parent to accompany the child to and from school. Ms X also complained the Council took into account irrelevant factors such as whether a nearer school may open in 2024.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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)

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How I considered this complaint

6. I have considered complaint correspondence provided by the Council and Ms X.
7. I have considered the Council’s response to my enquiries.
8. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

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 (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)

12. A child will not normally be eligible for free travel to school on the grounds of their special educational needs (SEN), disability or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied. Where the council determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves, but councils must act reasonably in the performance of their duties. Councils should not have a blanket policy that they will never arrange free travel for a child who would be able to walk to school if accompanied. They must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case. Councils should consider equality issues and be sensitive to particular challenges faced by parents of disabled children when other children of the same age may normally be expected to travel independently. (Department of Education 2023 home to school travel and transport guidance)
13. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support or the type of transport offered. (Home to School transport guidance 2023) The Guidance recommends councils adopt a two stage appeal process.

Council’s policy

14. The Council’s transport policy for children with SEN or mobility difficulties says ‘parents work commitments or domestic arrangements will not normally be taken into account when deciding the eligibility for a child or young person or the type of assistance offered’. Eligibility is reviewed at least every academic year and the type of assistance will be reviewed termly.

What happened

15. Ms X applied for home to school transport on SEN and mobility grounds. Council documents show Ms X applied for a school which would be one of their three closest schools when it moved to a new site. However, the opening of the new site was delayed until 2024 during the time of Ms X’s application for transport. The current site of the school is three miles from Ms X’s home.
16. The Council decided Ms X’s child was an ‘eligible’ child under s.508B Education Act because Ms X lived three miles or more from the school’s current site but would not be eligible when the new site opened.
17. The Council, having determined it had a transport duty under s.508B to Ms X’s child offered a bus pass with a companion pass as the type of transport assistance. It decided her child’s SEN and mobility needs did not require specialist transport. The Council expected Ms X to act as her child’s companion on public transport.
18. Ms X appealed the decision in Spring 2023 because she works and is disabled herself. She said she was unable to accompany her child. Ms X also said the type of transport offered did not consider her child’s mobility problems or the distance to school which would be almost an hour round trip twice a day.
19. Ms X says her appeal was rejected on the basis there was a nearer suitable school. Ms X explained she had chosen her child’s school based on their additional needs and on the understanding the new site would be open in 2023.
20. Ms X told us she felt that she might be forced to resign from her job and the decision had caused a lot of distress about how her child would get to school safely. Ms X said she considered the Council should provide a bus or taxi from their home to school and that the Council should consider parents’ work commitments especially given the journey would take a companion two hours per day.
21. The stage one and two appeals were refused on the basis that, although Ms X’s child was eligible for transport on distance grounds, parents’ work commitments were not an ‘exceptional’ circumstance to affect the type of travel assistance offered. The Council and appeal panel found insufficient evidence Ms X’s child’s SEN and mobility needs made them unable to make the journey safely when accompanied by a responsible adult.
22. Minutes of the stage two appeal show panel members made the following comments:
• ‘We cannot provide transport based on parent’s working patterns’.
• Ms X could have chosen a school nearer to home and ‘parents have chosen knowing the school wasn’t going to open’.
• Working arrangements are not grounds for Special Transport Need eligibility.
23. I raised enquiries of the Council as to why they were expecting a parent to accompany a child who was ‘eligible’ under s.508B on distance grounds, when accompaniment only applies to applications made on SEN/mobility or unsafe routes grounds below statutory walking distance (to make an otherwise unsafe route safe).
24. The Council’s response to my enquiries said my questions had prompted it to carry out a review of its decision. The reviewer found the decisions made at initial application and stages one and two of the appeal were incorrect. It said that there were three nearer schools than Ms X’s chosen school, at 1.0, 1.1 and 1.7 miles. Ms X had not provided evidence why the nearer schools were unsuitable, but the reviewer noted Ms X was under the impression her chosen school would be one of the nearest schools when it moved site.
25. The reviewer found Ms X’s child should not have been assessed as an ‘eligible’ child on distance grounds as they were not attending the nearest suitable school. The Council should not have offered free home to school transport, and this should not have been in the form of an escorted bus pass. The reviewer however decided the Council would provide transport in the form of a shared taxi/minibus on exceptional circumstances grounds because Ms X had believed the new school site would be open and would be her nearest school. Transport would be reviewed in September 2024.
26. The Council noted the appeal decision maker and panel failed to correct the eligibility decision.
27. Ms X told me that she has accepted the offer of transport, but she still wanted the Council to learn from the mistakes in her case.
28. In response to my draft decision Ms X and the Council told me that while the transport decision was reversed in late September, transport did not start until November. I had recommended a symbolic financial payment of £250 for Ms X’s time and trouble and loss of transport in September, which the Council agreed. The Council has now offered to make a further payment of £240, being £20 per day for an additional twelve days in October / November when transport was not in place. I consider this is a suitable remedy and in line with the Ombudsman’s Guidance on Remedies.

Analysis

Fault

29. The Council has reversed its decision based on Ms X’s child not being eligible on distance grounds due to there being three nearer suitable schools. The Council has noted its appeal process failed to identify errors in its original decision making.
30. The Council’s original decision making was also at fault in that all decision makers appeared to believe the assumption parents should normally accompany their child to school applied even when a child was ‘eligible’ on distance grounds. This is not the case. Accompaniment is only relevant in the situations where a child lives within statutory walking distance but cannot walk the route safely and the route can be made safe if they are accompanied by an adult. There is no expectation children eligible on distance grounds are accompanied.
31. The Council’s panel has set a test of ‘exceptional circumstances’ for when a parent would not be expected to accompany a child. At least one member of the panel was under the impression they had no discretion to provide transport due to parental work patterns. The Guidance says councils should consider if there is a ‘good reason’ a parent cannot accompany a child, not have blanket policies, and consider a parent’s own disability and particular circumstances. When the matter of accompaniment has come before the courts, the Court has found the appropriate test is whether it is ‘reasonably practicable’ for a parent to accompany a child. (George v Devon County Council [1988] 3 All ER 1002) It would therefore appear the Council and appeal members are applying a higher test for travel assistance of ‘exceptional circumstances’ and ignoring work commitments entirely, rather than applying a test of what is ‘reasonably practicable’ or whether there is a ‘good reason’. This is fault and this approach may have caused injustice to other families.
32. I have seen no evidence which supports the panel member’s view Ms X knowingly applied for a school which would not be open. Ms X's evidence, and the reviewer’s finding states the opposite.

Injustice

33. The Council has provided free home to school transport, via a method Ms X agrees, from November.
34. Between September and November transport was not in place, but would have been if the Council made the correct decision first time, or at the stage one and two appeals (both held before July 2023). The lack of suitable transport caused Ms X injustice.
35. Ms X incurred time and trouble going through two unnecessary appeals.

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Agreed action

36. Within four weeks of my final decision:
• The Council will apologise to Ms X for faults in its decision making and the injustice this caused her.
• The Council will pay Ms X £490 for her time and trouble and inconvenience in needing to bring appeals and the loss of transport support.
37. Within two months of my final decision, the Council will review if it needs to make changes to its guidance and training for decision makers and panel members to prevent the same faults identified in this case arising in future. This should address:
• The categories of children for whom accompaniment is and is not relevant.
• That officers retain discretion to consider individual family circumstances, including work commitments, when deciding when it is reasonable to expect a parent to accompany a child.
38. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B)) I have set out below the actions the Council should take to remedy the injustice to those people who are also caused an injustice by the Council’s fault.
39. The Council should issue a notice to all parents and carers who have been issued with a companion pass to alert them that there may have been an error in decisions expecting parents to accompany their child to school where the school is beyond statutory walking distance. The Council should invite any parents who consider they may have been affected to contact the Council so their case can be reviewed.
40. The Council should provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. There was fault in the way the Council considered an application for free home to school transport. This caused inconvenience and distress to Ms X. I am satisfied the recommended actions set out above, and the offer of transport now made by the Council, are a satisfactory remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman