Summary: Mrs B complained that the Council refused her application and appeals to provide transport for her son to attend college. We have found fault with the process. The Council has agreed to carry out a fresh stage two appeal, apologise to Mrs B and pay her £300 and to improve its procedures for the future.

The complaint

1. Mrs B complained that the London Borough of Barking and Dagenham (the Council) refused, without good reason, to provide transport for her son, C, to attend college. This has caused him and his family significant distress and inconvenience.

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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 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 the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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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What I found

School transport for children up to the age of 16

6. The law requires councils to make suitable home to school travel arrangements for eligible children of compulsory school age to attend their nearest suitable school. Eligible children include those living within walking distance of school (three miles for children aged eight years and above) but who cannot be reasonably expected to walk to school because of their special educational needs, disability or mobility problem.
7. The statutory guidance says for this age group the general expectation is that the parent will accompany the child to school and a child will not normally be eligible solely because of their parent’s work commitments or caring responsibilities. It goes on that a council should not have a blanket policy that it will never arrange free travel for a child who would be able to walk to school if accompanied but should consider cases where the parent says there are good reasons why they are unable to accompany their child and make a decision on the basis of the circumstances of each case. The guidance also says that when deciding whether it is reasonable to expect the parent of a child with special educational needs, disability or mobility problems to accompany their child to school, councils should be sensitive to the particular challenges parents of such children may face: for example where other children of that age may normally be expected to walk to school unaccompanied.

School transport for post-16s

8. The statutory guidance says that councils can use the three mile rule as part of its consideration but:

‘In determining whether transport arrangements are necessary, local authorities should take into account other factors, such as the impact a learning disability may have on a young person’s ability to walk this distance and the nature (including safety) of the route, or alternative routes, which a young person could be expected to take.’

9. The statutory guidance say councils must exercise their power to provide transport or financial support reasonably, taking into account all relevant matters. We expect councils to demonstrate how they have made their decisions in each individual case.
10. The guidance says that councils may ask parents for a contribution to transport costs but should ensure that any contribution is affordable and have arrangements to support low-income families.
11. The guidance is silent on whether a parent should accompany a 16 -19 year old to school or college.

Council’s policy on post-16 transport

12. The Council’s policy repeats the information in the statutory guidance and makes no mention of parents being expected to accompany young people to school or college.
13. It sets out a two-stage appeal process in accordance with the statutory guidance. It says the stage two review will be done by an independent appeal panel who will consider written and verbal representations form both the parent and officers involved in the case and give a detailed written notification of the outcome setting out:
• The nature of the decision reached.
• How the review was conducted, including what other departments or agencies were consulted as part of the process.
• What factors were considered.
• The rationale for the decision reached.

What happened

14. Mrs B’s son C has Autistic Spectrum Disorder and learning disabilities. He has an Education, Health and Care (EHC) Plan which names a local college, approximately two and a half miles from his home. Mrs B says C is unable to get to or from college on his own either by walking or on public transport due to his disabilities. She says she has another young daughter and she and her husband both work full-time so it was very difficult for them to take C to and from college.
15. In July 2023 Mrs B applied to the Council for transport for C to and from college. C was 17 at this point. The Council refused the application saying the college was within safe walking distance and there was no evidence C had mobility difficulties.
16. Mrs B appealed. The Council replied on 18 August 2023 saying it upheld the refusal as there was no evidence that C could not walk the distance to college with the support of an adult. It said it is clearly stated in the government guidance that it is the parents’ responsibility to ensure that their child is transported to the education setting.
17. Mrs B requested a stage two review panel. She submitted a letter from C’s consultant and his GP supporting the application saying that due to his sensory needs he would be very vulnerable travelling to college on foot on his own.
18. C turned 18 in October 2023.
19. The Council held a review panel on 14 December 2023 with four representatives of the Council. Mrs B attended and spoke to the Panel. The Panel made no notes of its discussions or consideration. It wrote to Mrs B on 15 December 2023 refusing the appeal. It said there was no evidence C could not get to school with the support of an adult. It acknowledged that it was challenging to get C to school but it was clearly stated in government guidance that it is the parents’ responsibility to get their child to their education setting. It said there were buses available which would significantly reduce the walking time and C’s disability benefits could help with the costs.
20. Mrs B complained to us.

Analysis

21. In reaching its decision that C is not entitled to transport to college, the Council has relied entirely on guidance which does not apply to post-16 transport applications, namely that it is his parents’ responsibility to get him to school. It has not considered C’s age or the fact he is now an adult and whether it is reasonable to still say it is his parents’ responsibility to get him to college.
22. Neither is there evidence the Council has considered the impact of C’s sensory issues or learning disability on his ability to walk to college and the nature (including safety) of the route, or alternative routes, which he could be expected to take.
23. This was fault which means Mrs B cannot be certain that the Council has considered C’s case properly or that the outcome is correct.
24. The Council is also at fault for having no record or notes of the review panel hearing on 14 December 2023. I am unable to say what information the Council considered, what evidence Mr and Mrs B supplied, why the Council discounted that evidence and why it relied entirely on the wrong guidance to reach its decision. Again, this creates uncertainty as to whether the outcome could have been different.
25. Given the lack of evidence of the decision-making process I am unable to say that C’s and Mr and Mrs B’s individual circumstances were properly considered. It appears that the Council has applied a blanket approach (albeit with the wrong guidance) and not considered the individual facts of the case.

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Agreed action

26. In recognition of the injustice caused to C and Mrs B, I recommended the Council within one month of the date of my final decision:
• arranges another stage two appeal with a fresh panel, invites Mrs B to submit any evidence in support of her case and ensures that each panel member is aware of the relevant statutory guidance for post-16 transport; and
• apologises to Mrs B and makes a symbolic payment of £300 to her.
27. If the outcome of the new stage two appeal is favourable the Council should consider whether it should pay any recompense for the transport Mrs B has provided since September 2023.
28. I also recommend the Council within three months:
• reviews its school transport appeal procedure to ensure all those involved are aware of the differences in the guidance for post-16 transport and the need to record the decision-making process so it is clear how and why the decision was made.
29. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

30. I consider this is a proportionate way of putting right the injustice caused to Mrs B and C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman