Summary: Miss X complained about the outcome of a home to school transport appeal for her son, F. The Council was at fault. It accepted it failed to record the panel’s deliberations and show how the panel arrived at its decision to refuse F school transport. It also failed to provide sufficient detail in its decision letter. This caused Miss X and F distress and uncertainty. The Council agreed to apologise to Miss X and hold a fresh stage 2 appeal panel. If it decides to award F with school transport It will also consider whether to make payments to Miss X and F to recognise the injustice caused by its earlier decision.

The complaint

1. Miss X complained about the Council’s decision to refuse home to school transport for her son, F who has an Education, Health and Care (EHC) plan. Miss X says the home to school transport panel did not properly consider F’s medical conditions and his personal circumstances.
2. Miss X says the decision has affected F’s mental health and makes it difficult for him to attend school at all.

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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 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)
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)
5. 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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How I considered this complaint

6. I spoke to Miss X about her complaint and considered information she provided.
7. I considered the school transport appeal documents including:
• Miss X’s application
• The panel notes and deliberations
• The decision letter.
8. I considered the Council’s response to my enquiry letter.
9. Miss X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

School transport

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. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, 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.

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.
13. The 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.

Education, Health and Care (EHC plans)

14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections.
15. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs. 
• Section F: The special educational provision needed by the child or the young person.  
• Section I: The name and/or type of school. 

What happened

16. Miss X has a son, F who was due to move from primary to secondary school in September 2023. F has an EHC plan which outlines his SEN and health needs. Section B of F’s plan says he:
• Has elevated anxiety around separation from Miss X.
• Low confidence.
• Is vulnerable socially.
• Is in a constant state of hyper arousal and hyperactivity unless in a secure environment.
• Suffers from panic agoraphobia.
17. In early 2023 Miss X applied to the Council for home to school transport for F when he began secondary school. In May 2023 the Council wrote to Miss X to tell her its transport panel had declined the application. The letter explained the panel decided F was capable of independent travel to school and he lived less than three miles from the school.
18. Miss X wrote to the Council and appealed the decision. Miss X explained F had mental health issues as well as other needs which prevented him from travelling independently. Miss X said she could not take F to school because of her own health problems and dealing with her other children. Miss X provided medical letters in support of her appeal.
19. In early June 2023 the Council wrote to Miss X with its stage 1 appeal response. The letter said there was no evidence provided about F’s mobility and physical needs and said his needs reflected in his EHC plan were around social, emotional and mental health. It said F was not in receipt of Disability Living Allowance (DLA) and there were no safety risks related to his SEN which would prevent him from walking to and secondary school. It also said there was no evidence showing Miss X was unable to accompany F. It therefore did not uphold Miss X’s appeal.
20. Miss X asked the Council to escalate her appeal to stage 2. The independent panel considered F’s case in June 2023. The panel notes show it considered various documents and evidence including F’s EHC plan and medical letters. The notes show the panel did not uphold the appeal stating ‘considering the needs of ‘F’ as evidenced by his EHCP we would expect ‘F’ to be able to travel to school independently’.
21. The Council wrote to Miss X with its stage 2 appeal outcome letter at the end of June 2023. It confirmed that based on the evidence submitted and the content of F’s EHC plan the panel expected F to be able to travel to and from secondary school independently.
22. Miss X remained unhappy with the Council’s decision and complained to us. Miss X said the Council did not properly consider F’s health needs, in particular those outlined in his EHC plan. She also said it wrongly concluded he was not in receipt of DLA.
23. Miss X said since F started secondary school in September 2023 he has been unable to attend school at times and has had altercations and panic attacks on the bus.

The Council’s response to our enquiries

24. In response to my enquiry letter the Council said that after reviewing the case it had identified fault in how it had handled Miss X’s appeal. It accepted that it had failed to identify that F was in receipt of DLA and acknowledged the stage 1 response which concluded he did not was wrong. It also accepted it had no records showing how the panel considered F’s EHC plan and his associated medical needs as part of the appeal process. It also accepted the stage 2 appeal outcome letter did not contain sufficient detail about the factors considered by the panel.
25. The Council proposed to offer Miss X a fresh stage 2 appeal with the opportunity for a face-to-face meeting. It also offered to apologise to Miss X for the identified faults.

My findings

26. The Council has accepted fault in the way it handled Miss X’s appeal. The stage 2 panel made its decision on the basis that F’s EHC plan evidenced that F could travel to secondary school independently. This is despite Section B of F’s plan stating differently. The Council accepted it was unable to provide supporting evidence showing how the panel arrived at the conclusion which is fault. The Council also accepted it came to wrong conclusions around F’s receipt of DLA. It also failed to ensure the stage 2 decision letter contained sufficient detail about how the panel reached its decision which is not in line with statutory guidance. All of this is fault.
27. The accepted faults have caused Miss X distress and uncertainty about how the panel arrived at its decision and whether the panel would have arrived at a different conclusion but for the faults.
28. We welcome the Council’s acceptance of fault, and its proposal to offer Miss X a fresh stage 2 panel hearing is in line with our guidance on remedies. I have made further recommendations below to ensure the Council carries out actions to prevent recurrence of the faults. I have also recommended that if, following the fresh appeal the Council decides F should have had school transport it considers providing a further remedy to Miss X. This would be for any unnecessary expenses incurred or any loss of education for F since September 2023 caused as a result of no school transport being in place.

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Agreed action

29. Within one month of the final decision the Council agreed to carry out the following actions.
1. Write to Miss X and apologise to her for the distress and uncertainty caused by the stage 2 school transport panel’s failure to properly consider her case.
2. Carry out a fresh stage 2 appeal for Miss X and F with a different panel. If the panel decides to award F with school transport it should backdate this award to September 2023.
3. Remind all officers who carry out and sit at stage 2 school transport appeal panels, and those who send decision letters of the requirement to consider all of the evidence presented and properly record and evidence how it reached the decision, in line with statutory guidance.
30. If the Council, following the fresh stage 2 school transport appeal panel decides to award F with school transport it should consider making a payment to Miss X for:
• reimbursement of any unnecessary expenses incurred taking F to secondary school since September 2023 and;
• any loss of education or provision in line with F’s EHC plan since September 2023 caused as a direct result of being unable to attend school due to the lack of school transport.
31. This is to recognise any injustice caused to Miss X and F from September 2023 onwards due to the failure to put school transport in place earlier. If the Council decides to award F with school transport it should write to Miss X within one month of the panel’s decision with any offer of payment.
32. If Miss X is unhappy with the proposed payments as above she can complain to us without the need to complain to the Council first.
33. The Council should provide us with evidence it has complied with the above actions.

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Final decision

34. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman