Summary: Ms A complained that in March 2023 the Council wrongly stopped her son, B’s, school transport. She also said the Council took a long time to overturn its decision and it did not accept her complaints about the appeals process she made in November 2023. The Council was at fault for deciding to end B’s school transport. We also found the Council’s appeals policy and corporate complaints policy were misleading. The Council has already agreed to provide school transport for B and to our further recommendations at the end of this decision on how to remedy the injustice its actions caused to Ms A and B.

The complaint

1. Ms A complains about the Council’s decision to stop her son’s school transport in February 2023. She says the Council:
• used the incorrect criteria to come to its decision and failed to acknowledge this;
• took too long to overturn its original decision; and
• did not accept her two complaints about the Council’s decision.
2. Ms A says this caused her avoidable stress and frustration. Because of the Council’s actions she had to go through the appeals process, and it took the Council seven months to overturn its decision.
3. Ms A would like the Council to apologise for making the incorrect decision to stop her son’s school transport and to review its procedures to ensure this has not happened to other families.

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The Ombudsman’s role and powers

4. 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. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. Once 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

7. I have considered information provided by Ms A and the Council, including all the papers from Ms A’s transport application and appeals.
8. Ms A and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Home to school transport

9. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
10. Various categories of eligible children are defined in Schedule 35B of the Education Act 1996.
11. Ms A applied for transport because B has special educational needs and a disability which she believes mean he is unable to walk to school.

Children with special educational needs, a disability or mobility problems

12. B was getting free school transport because of his Special Educational Needs and Disability (SEND). The relevant eligibility criteria are set out in paragraph 2 of Schedule 35B. It says a child falls within this paragraph if:
• he is of compulsory school age and is any of the following:
1. a child with special educational needs;
2. a disabled child; or
3. a child with mobility problems,
• he is a registered pupil at a qualifying school which is within walking distance of his home;
• no suitable arrangements have been made by the [local authority] for enabling him to become a registered pupil at a qualifying school nearer to his home; and
• having regard to whichever of the following are relevant:
1. his special educational needs;
2. his disability; and
3. his mobility problems,
4. he cannot reasonably be expected to walk to a qualifying school which is within walking distance of his home.
13. For children with an Education, Health and Care (EHC) Plan, a qualifying school is the school named in section I of their Plan, unless the Plan says otherwise.
14. 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)
15. Paragraph 64 of the guidance says a council is not required to arrange travel for an eligible child where suitable free travel is provided by someone else, for example, their school or the local transport authority (for example, Transport for London (TfL)).
16. Further, the Council does not have to make travel arrangements for an eligible child if a parent makes their own arrangements voluntarily. (Education Act 1996, section 508B(5))

Council’s travel appeals policy

17. The Council’s school transport appeal procedure has two stages. The Council says it will respond to appeals at stage one of the process in 20 working days from the Council receiving the request for an appeal.
18. At stage two a panel will review the original decision within 40 working days from the Council receiving a request for a review, and then issue a decision in writing within five days from the panel hearing.
19. The Council’s independent travel policy says the appeals process is separate from any complaints or concerns the residents may have about the quality of service that they, or their child received. The policy then directs the reader to the Council’s corporate complaints policy.

Council’s corporate complaints

20. The Council’s corporate complaint policy says that the Council will not accept complaints about decisions that have an internal appeals process.

What happened

21. Since 2017 the Council was providing free school transport for B. He has SEND that impact on his physical and mental ability. He also receives the mobility component of the Disability Living Allowance which supports mobility challenges he faces, as well as being a wheelchair user.
22. In February 2023 the Council sent an assessment form to Ms A and asked her to fill it out. At the end of March 2023, the Council wrote to Ms A and told her that based on the information she provided B did not qualify for school transport. The Council said it based its decision on the distance Ms A and B lived from his school and the availability of free transport from Transport for London. Additionally, the Council told her that if B could not travel to school by himself, it was Ms A’s responsibility to assist him.
23. Ms A appealed the Council’s decision in early May 2023. She told the Council that:
• she considered that its decision to stop B’s school transport was not in line with the Government’s statutory guidance;
• it did not properly consider B’s disability and SEND;
• it would not have to provide school transport for B, as an eligible child, if she made alternative arraignments voluntarily, which she did not; and
• the law said it could not discharge its duty to other partners (in this case TfL).
24. Ms A’s appeal was well documented and provided the Council with evidence of B’s current needs and explained how the Council’s decision to remove school transport impacted the family. I have not seen Ms A’s medical evidence, but I have seen a summary of documents Ms A said she provided.
25. Ms A’s appeal was unsuccessful. The Council wrote to tell Ms A the outcome in late May 2023. The Council said B did not meet the distance criteria.
26. Ms A appealed the Council’s decision at the second stage of the Council’s appeals process within 20 days of the Council’s letter.
27. In early October 2023 the Council told Ms A that it changed its decision and B would receive school transport. It told her that the information and verbal evidence she provided during the panel hearing contributed to the Council’s decision.
28. In November 2023 Ms A tried to submit two corporate complaints with the Council about the quality of service she and B received. The Council did not accept or consider her complaints.
29. Ms A was unhappy with the Council’s response, and she asked us to consider her complaint.

Analysis

Council’s appeals considerations

30. To determine whether B was entitled to free home to school transport, the Council must decide whether, having regard to his special educational needs and disability, he could not be reasonably expected to walk to school.
31. The Council’s letter to Ms A from March 2023, shows no evidence of how it considered the implications B’s special educational needs or disability would have on his ability to walk to school.
32. The Council referred to the distance to the school and the availability of free transport from Transport for London. These considerations are irrelevant. This is fault.
33. The Council’s letter to Ms A from May 2023 following Ms A’s stage one appeal shows no evidence of how the Council considered the implications B’s special educational needs or disability would have on his ability to walk to school when it made its decision. The Council simply said B did not meet the distance criteria and that it was sympathetic to Ms A’s and B’s struggles. The distance criteria were not relevant to this reassessment. This is fault.
34. In October 2023 the Council properly considered the evidence Ms A submitted as part of her appeal. It evaluated the implications of B’s special educational needs or disability for his ability to walk to school when it made its decision following Ms A’s stage two appeal. Because of this, the Council decided that it would return to providing B with free home to school transport as it did in the prior years. We consider the Council missed the opportunity to arrive at this decision sooner than stage two of the appeals process. This is fault. The Council had all the relevant information about B’s needs and disability during the reassessment and the initial appeal, but it failed to properly consider the information it held. It caused Ms A avoidable uncertainty about what was going to happen.
35. Taken together, these factors call the Council’s original decision into question. The Council has made mistakes, taken irrelevant factors into consideration, and failed to adequately refer to relevant information. This is fault.
36. It caused Ms A and B avoidable distress and uncertainty about whether the Council would provide B with the school transport that he needed.
37. Additionally, the Council took eight months to consider Ms A’s appeal.
38. The Council’s policy says a parent will receive a decision on a stage 1 appeal within four weeks. The records show the Council replied to her within that time.
39. The Council’s policy says a parent will receive a decision on a stage 2 appeal within eight weeks. We assumed that Ms A requested a stage two appeal within 20 days from the Council’s reply in late May 2023. This means that she should have received a decision from the stage two appeal by July 2023. This did not happen until October 2023. This delay is not in line with the Council’s travel policy and is fault.
40. This caused Ms A additional avoidable distress and left her in state of uncertainty of when the transport arrangements would get resolved.
41. 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.
42. In the last few months, we have considered three other complaints against the Council’s decision making about travel arrangements for children with SEN. In all three cases we found fault causing an injustice and we made service recommendations. Because of this we have decided not to make any further service improvements on this case and allow the Council the time to implement the improvements we made as part of our other three investigations.

Council’s corporate complaints

43. Ms A attempted to submit a corporate complaint about B’s travel assessment and appeals process.
44. On both occasions the Council told her that it would not accept her complaint because she used the appeals process. This seems to be in line with the Council corporate complaints procedure, however it contradicts the travel policy the Council has in place. The travel policy says the appeals process is separate, and that if a person wishes to complain about the quality of service they received, they can do so via the corporate complaint policy.
45. The Council’s decision not to accept Ms A’s corporate complaints was fault. This caused her distress and meant she had to spend additional time and trouble in pursuing the Council and trying to raise her concerns about the quality of service she received.

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Agreed action

46. We have published guidance to explain how we recommend remedies for people who have suffered injustice because 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.
47. Within one month of the date of the final decision statement, the Council will:
• apologise to Ms A and B for its failure to consider B’s transport reassessment and appeal in a timely manner and the distress and frustration this has caused them. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings;
• pay Ms A £300 to remedy the distress, frustration and uncertainty she experienced because of the Council’s delay in considering her appeal;
• pay Ms A £100 to remedy the time and trouble she experienced because of the Council’s failure to accept her complaints about the travel assistance appeals procedure; and
• remind its staff that members of the public may submit corporate complaints about the quality of service they received regardless of any appeals they submitted. In those cases, the Council should still consider the corporate complaint as per its travel assistance policy.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. The Council was at fault when it told Ms A that B was not eligible for home to school transport, the time it took it to overturn its decision and the refusal to accept Ms A’s corporate complaints. The Council agreed to our recommendations and our investigation is now complete.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman