Summary: the Council decided it is not reasonable to expect Ms M to accompany her son, B, to and from secondary school and offered independent travel training. The Council did not, however, offer any support until B successfully completed the training. We have recommended a remedy for the injustice this caused.

The complaint

1. Ms M complains about her application for home to school transport for her son, B. The Council initially declined Ms M’s application, but later offered independent travel training.

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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 injustice we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I have considered information provided by Mrs M and the Council, including all the papers from Mrs M’s application and appeals. I invited Mrs M and the Council to comment on my draft decision.

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What I found

5. Ms M applied for home to school transport for her son, B, on 7 March 2023 in anticipation of his transfer to secondary school in September 2023. She completed the Council’s online school travel assessment form for children with special educational needs and disabilities.
6. Ms M’s application form explained that B has autism and is unable to walk to school by himself. Ms M’s childminder accompanied B on the short walk to his primary school. B has an older and a younger sibling, and the childminder would not be able to accompany B on the longer walk to his secondary school.
7. The Council wrote to Ms M on 30 March 2023 to say it had decided not to provide transport for B. The Council’s letter explained:
• Ms M lives less than three miles from the school, so the Council does not have a duty to provide transport;
• there is free transport available from Transport for London which the Council considers suitable for B; and
• it is a parent’s responsibility to accompany a child, or to make arrangements for their child to be accompanied if they cannot travel independently.
8. On 4 April 2023, Ms M asked for a review of the Council’s decision (stage 1 of the appeals process). Ms M explained:
• she is a single parent and works full-time;
• B has special educational needs and is unable to travel independently;
• she is unable to accompany B to school because of work commitments;
• her childminder accompanied B to primary school, but was unable to accompany him to secondary school as she takes B’s younger sibling to nursery;
9. Ms M provided evidence to support her request.
10. The Council wrote on 12 May 2023 to say it had reviewed its decision and confirmed it would not provide transport. The Council’s letter says:
• the distance to school is less than three miles and does not meet the eligibility criteria;
• parent/carer work arrangements are not considered exceptional circumstances.
11. Ms M submitted an appeal (stage 2 of the appeals process) on 5 July 2023. In her appeal, Ms M said:
• B is unable to travel independently because of his special educational needs;
• she is a single parent and is unable to accompany B due to work commitments;
• B has an Education, Health and Care (EHC) Plan and receives a high level of support at school; and
• routine is important for him.
12. Ms M provided further information on 5 September 2023. She said:
• it would cost £400 a month to employ a childminder to accompany B to and from school, and she could not afford the extra expense;
• she had already had to reduce her work hours and was struggling financially;
• she would have to give up work if the Council did not provide transport.
13. The Council wrote on 27 September 2023 to say it had decided B was eligible for travel assistance in the form of independent travel training. The Council explained it had overturned its original decision not to provide travel assistance because of Ms M’s exceptional circumstances: the fact she was working full time and had two disabled children.
14. Unhappy with the outcome, Ms M complained to the Ombudsman. Ms M told me she welcomed travel training for B, but the provider had been unable to arrange training outside school hours, and B had not yet received the training. She said she had reduced her work hours and was paying a childminder to help, but the arrangements were unsustainable.

Home to school transport

15. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
16. Various categories of eligible children are defined in Schedule 35B of the Education Act 1996.
17. Children are eligible for transport if they:
• live beyond walking distance of their nearest suitable school (two miles for a pupil under 8 or three miles for a pupil over 8);
• live within walking distance of the school, but cannot be expected to walk because of their special educational needs or disability; or
• live within walking distance of the school, but cannot be expected to walk because of the nature of the route.
18. Councils have a power to provide transport for children who are not eligible children. (Education Act 1996, section 508C)
19. The Government has issued statutory guidance which councils must follow unless they have good reason. (Travel to school for children of compulsory school age. Statutory guidance for local authorities issued by the Department for Education in June 2023)
20. The guidance says a child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability or mobility problem if they would be able to walk to school if they were accompanied.
21. The guidance says 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. Councils must consider cases where a 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.
22. The guidance acknowledges that children of secondary school age would normally be expected to walk to school unaccompanied and this might, for example, enable parents to increase their working hours. When deciding whether it is reasonable to expect the parent of a child with special educational needs, disability or mobility problem to accompany their child to school, councils should be sensitive to the particular challenges parents of such children may face.
23. The guidance says councils must consider the Equality Act 2010 and the public sector equality duty to eliminate discrimination and promote equality of opportunity when making decisions.

Consideration

24. The Council has decided B is not an “eligible child” for the purposes of the Education Act 1996. He is physically capable of walking to school if accompanied.
25. The Council has decided it is not reasonable to expect Ms M to accompany B to school because she has two disabled children and works full-time.
26. The Council has offered independent travel training with the hope that B can take advantage of free transport for school pupils provided by Transport for London.
27. Until B has successfully completed his independent travel training and demonstrated he can safely travel to and from school by himself, the Council’s offer does not address the exceptional circumstances the Council identified which it considers make it unreasonable to expect Ms M to accompany B to school or make other suitable arrangements. This is fault.
28. This is not to detract from the value of independent travel training. But it does not, by itself, provide a solution to the “exceptional circumstances” the Council identified which led it to conclude it cannot expect Ms M to accompany B to school.
29. Where we find fault, we consider the impact on the complainant. We refer to this as the injustice. We may recommend a remedy for injustice that is the result of fault by the Council.
30. The Council considers it is unreasonable to expect Ms M to accompany B to school, or make other suitable arrangements, but has not yet put in place alternative arrangements which ensure B gets to school. Instead, Ms M has had to do her best to make arrangements the Council considers it is unreasonable to expect her to make. These have included paying for the support of an additional childminder and reducing her work hours. This is an injustice.
31. The injustice has been compounded by the length of time the Council has taken to consider Ms M’s appeals. The Council’s transport policy says the Council will consider appeals within 20 working days at stage one and 40 working days at stage two. The Council considered Ms M’s stage one appeal in 25 working days and her stage two appeal in 61 working days. If the Council had followed the published timetable, it would have heard Ms M’s appeal before the start of term.

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Agreed action

32. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
33. I recommended the Council:
• takes whatever action is necessary to ensure B is able to travel to and from school, without the need for Ms M to accompany him or make other arrangements, until he has successfully completed independent travel training and demonstrated he can make the journey safely by himself;
• invites Ms M to submit invoices for the services of the childminder she employed to take B to school and refund any costs she has funded herself;
• makes a symbolic payment of £250 to Ms M to recognise the delays and the fact she has had to re-arrange her work commitments; and
• apologises to Ms M for the Council’s mistakes.
34. I recommended the Council:
• takes action to resolve B’s school transport (the first bullet point) within one week of my final decision;
• makes a payment within six weeks of receiving Ms M’s invoices (the second bullet point). If the Council and Ms M are unable to agree the payment, Ms M can complain directly to the Ombudsman;
• sends the symbolic payment and apology (the third and fourth bullet points) within six weeks of my final decision.
35. The Council should provide us with evidence it has complied with the above actions.
36. The Council accepted my recommendations.

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Final decision

37. I have ended my investigation as the Council accepted my recommendations.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman