Summary: Mrs X complained the Council refused to provide her son, Y, with school transport. Mrs X explained Y has additional needs, attends a special school and it was unsafe for him to walk to school. She said this caused Y and her distress because Y’s behaviours mean he is at risk of running towards vehicles when walking near a road. There was fault in the way the Council did not properly consider Mrs X’s application and Y’s needs. Mrs X was frustrated by this fault. The Council should apologise, make a financial payment, review the application and provide training to relevant staff.

The complaint

1. Mrs X complained the Council refused to provide her son, Y, with school transport. Mrs X explained Y has additional needs, attends a special school and it was unsafe for him to walk to school. She said this caused Y and her distress because Y’s behaviours mean he is at risk of running towards vehicles when walking near a road.

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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. If we are satisfied with a Council’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 read Mrs X’s complaint and spoke to her about it on the phone.
5. I considered information provided by Mrs X and the Council.
6. Mrs X 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

Background information

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 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. ‘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); and
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem. (Education Act 1996, 508B(1) and Schedule 35B)

8. Where the local authority 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. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraphs 47 to 52)
9. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
10. The Council has adopted the appeals process recommended in the statutory guidance. The guidance recommends:
• 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. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)
11. The Ombudsman issued a focus report about school transport issues in 2017. This focus report stated “for children with special educational needs and disability, ensure not just their mobility but any health and safety difficulties associated with their special educational needs or disability are considered.
12. A blue badge allows people with a disability to park closer to their destination.
13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement.
14. Y has an EHC Plan which names the community special school.
15. The Ombudsman has issued two other decisions for this Council in 2024, both referencing the matters raised in this case. One of the decisions recommended a service improvement which said the Council would ensure assessments consider hidden disabilities or Special Educational Needs (SEN) / behavioural difficulties that may affect walking as well as physical disabilities.

What happened

16. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
17. Y has complex additional needs and is under eight years old. He attends the community special school named in his EHC Plan, roughly one mile from his home. Mrs X reports parts of Y’s needs result in him being unsafe in the community and particularly on roads. She applied for school transport for Y in July 2023.
18. The Council considered the application and recommended it refused the request because Y lived less than two miles from the school. The Council wrote to Mrs X at the start of August 2023 and told her of its decision.
19. Mrs X appealed against the Council’s refusal to provide transport in the middle of August 2023. Mrs X repeated Y’s needs meant he had a tendency to run at cars and had no understanding of danger or safety. She provided a letter from a doctor and Y’s previous one to one worker.
20. The Council reviewed Mrs X’s appeal at the start of September 2023. The minutes show the Council considered:
• Y’s EHC Plan which did not mention reduced mobility;
• supporting letters provided by Mrs X, which it noted were not from professionals involved in Y’s care, or on headed paper; and
• the distance from Y’s home to their school.
21. In late September 2023 the Council told Mrs X it rejected her appeal because Y lived within a reasonable walking distance from their school.
22. Mrs X asked the Council to escalate her appeal to stage two at the start of October 2023. She provided Y’s blue badge and a letter from her GP in support of the application.
23. The Council held a stage two panel meeting a week later. The minutes of the meeting noted it considered the EHC Plan and GP letter. The minutes again reported:
• Y had no mobility problems;
• “there was nothing recorded in the EHC Plan of any modified or bespoke curriculum”;
• the family lived within a reasonable walking distance from the school; and
• it was the parents’ responsibility to ensure Y got to school.
24. The Council wrote to Mrs X in November 2023. The letter confirmed the panel members dismissed the appeal as the information provided did not warrant a change in the original decision. The Council repeated the family lived within a reasonable walking distance from Y’s school.
25. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to provide transport.
26. In response to my enquiries the Council stated it considered Mrs X’s application and appeals and concluded Y was not eligible for transport.

My findings

27. The Ombudsman is not an appeal body for school transport appeals, as statutory guidance says that is the role of the Council. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes the Council followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong. If we find there was fault in the decision-making process, we normally ask a council to hear the appeal again. We do not come to a view on whether the appeal should be upheld.
28. I have evaluated how the Council considered Mrs X’s application for school transport, and the information it took account of when deciding to refuse the application.
29. The statutory guidance says the Council should consider a child’s Special Educational Needs (SEN), disability or mobility problems. In the stage two panel meeting minutes, it noted:
• “Y can walk, run, jump and climb stairs. There are no concerns about his mobility”;
• “No evidence of any reduced mobility”;
• “There is nothing recorded in the EHC Plan of any modified or bespoke curriculum”;
30. The panel also noted parts of the EHC Plan it considered:
• Section B regarding sensory and physical needs;
• Section C regarding health needs; and
• Section D regarding social care needs.
31. The statutory guidance is clear a student does not need to have travel to school mentioned in the EHC Plan.
32. The Council has focused on mobility problems. Statutory guidance tells Councils to consider SEN and disability. The panel noted the EHC Plan, but the minutes do not refer to Y’s needs impacting the behaviours Mrs X referenced. The Council has sufficiently considered SEN or disability in its decision making, focusing on mobility. This is fault and the Council did provide sufficient evidence it had assessed Y’s needs properly, causing Mrs X distress and uncertainty that it may have adversely affected the Council’s decision.
33. Statutory guidance confirms if a child has SEN or a disability, the Council needs “to assess eligibility on the grounds of SEN, disability or mobility on a case-by-case basis. The assessment should take account of the child’s physical ability to walk to school and any health and safety issues related to their SEN, disability or mobility problems”. The Council decision letters only referenced the distance the family live from Y’s school. The stage one and stage two response make no reference to Y’s SEN or disability, only the distance to school. This is fault and the Council did not assess Y’s needs properly, causing Mrs X distress and uncertainty.

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Agreed action

34. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for the distress and uncertainty when not considering her transport application or appeals in line with statutory guidance. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mrs X £200 as an acknowledgement of the distress and uncertainty she experienced due to the fault I have identified.
• Carry out a fresh stage two appeal for Mrs X and Y with a different panel considering all Y’s needs, in accordance with statutory guidance.
• If the Council, following the fresh stage two school transport appeal panel decides to award Y with school transport it should consider making a payment to Mrs X for reimbursement of any unnecessary expenses incurred taking Y to school since September 2023.
• Remind all officers who carry out transport appeal, and those who send decision letters of the requirement to consider all the evidence presented and properly record and evidence how it reached the decision, in line with statutory guidance.
35. Within three months of my decision, the Council should:
• Arrange staff training for relevant staff on the Council’s duties set out in the statutory guidance. This training should also include awareness of SEN and disability. It should also include the need to take account of disabilities and the impact on the child’s health and safety, as well as mobility, when assessing school transport applications.
36. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

37. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman