Summary: There was some fault in the way the Council decided an application for school transport for a child below compulsory school age. Irrelevant factors were considered and referred to in decision letters. However, I am not persuaded the fault affected the outcome of the application or caused significant injustice. The Council will make service improvements to prevent a recurrence of the fault.

The complaint

1. Ms X complains about the way the Council considered her application for free home to school transport for her child. Ms X’s child has special educational needs (SEN), an Education, Health and Care (EHC) Plan, and started reception year in 2023/24.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

5. I have considered information provided by Ms X and the Council including the application and appeal documents and the Council’s policy.
6. I have considered relevant law and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
8. 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

Relevant law and guidance

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age (my emphasis) 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);
• 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;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds.

(Education Act 1996, 508B(1) and Schedule 35B)

10. Children below compulsory school age are not ‘eligible’ children and there is no legal duty under the Education Act for councils to provide home to school transport to this age group even if they have an EHC Plan.
11. A child is of compulsory school age on the first day of term after they reach age five years.
12. The Education Act 1996 s. 508C grants councils discretionary powers to make arrangements for children who are not ‘eligible’ children under the criteria in s.508B, including those below age 5. It is up to individual councils to decide whether and how they will apply this discretionary power.
13. Councils can also ask parents to make a contribution towards transport costs where a pupil is below or above compulsory school age.
14. The Government has issued statutory guidance ‘Travel to school for children of compulsory school age’. This says councils should not have a blanket policy of never providing discretionary travel below compulsory school age and should make decisions on a case-by-case basis.
15. Councils also have responsibilities under the Equality Act and the Public Sector Equality Duty to advance equality of opportunity between those who share a protected characteristic (such as disability) and those that do not.
16. Councils have a duty to make sure a child or young person receives the special educational provision set out in section F of an Education, Health and Care Plan (Section 42 Children and Families Act).

Council’s policy

17. The Council’s home to school transport policy for children of pre-compulsory school age (0-4) says it does not provide transport support except where the child has an EHC Plan and the circumstances can be said to be exceptional. Even where the Council does provide transport it will make a charge calculated in the same way as for young people of sixth form age.
18. The policy says the Council will consider what is said in any application but will give ‘particular regard’ to:
• Distance and journey time and the cost of providing assistance;
• Alternative means of facilitating attendance;
• Alternative placement or options;
• Contents of EHC Plan (including anything about transport);
• The best use of Council resources and competing claims on them.

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What I found

What happened

19. Ms X applied for free home to school transport for reception year for her summer-born child who will not be compulsory school age until they start Year One. Ms X’s application said her child had difficulty walking or using public transport due to their behaviour, which is a result of their SEN.
20. The Council refused the application on the basis they lived within the usual statutory walking distance (that is the eligibility criteria on distance when a child is 5-16).
21. Ms X appealed to stage one. The stage one appeal was refused on distance grounds because they lived within three miles of the school and because Ms X had not provided evidence of exceptional reasons such as a letter from a medical professional.
22. Ms X appealed to stage two and provided medical evidence her child could not walk to school due to behaviour linked to SEN. Ms X said her child received disability living allowance higher rate care and mobility element and had a blue badge.
23. The stage two minutes show the panel noted this was an application for a child below compulsory school age, that the child had an EHC Plan, there were two parents, they had a car, but said the car was not accessible. The panel said there was no evidence either parent worked. The panel noted there was no evidence of physical mobility difficulties, but behavioural difficulties made walking and use of public transport difficult. It was noted the child had a blue badge and received disability living allowance.
24. The panel decided not to award discretionary transport because the journey was considered reasonable and there was no evidence to suggest the child could not make the journey supported by a parent. There was a vehicle available. There was also no evidence of reduced physical mobility. The panel referred to medical evidence provided.
25. Ms X complained to the Ombudsman the Council had made a decision without considering the facts properly. Ms X said she was pregnant and could not take her child to school because their SEN and behaviour made this unsafe.

Analysis

26. The Council’s first response to the application referred to the family not meeting the criteria due to living within the statutory walking distance. This was not the criteria the Council’s policy required decision makers to apply, which was the policy for children under age 5. This was fault.
27. At stage one and stage two of the appeal process the application was considered both under walking distance criteria (that would apply over compulsory school age) and under the exceptional criteria for children below compulsory school age.
28. The minutes of the panel of the stage two hearing clearly show the panel was aware the application was for a child below compulsory school age and therefore evidence of exceptional need was required. However, the stage two decision letter referred to the family not meeting statutory walking distance grounds and to parents having a responsibility to ensure their child received a full-time education. As Ms X’s child was not of compulsory school age these two points were irrelevant.
29. There is some evidence the Council may have used standard template letters or phrases designed for applicants of compulsory school age when these were not appropriate for the situation.
30. The stage two panel put much emphasis on whether the disability affected physical mobility. It is not clear why the panel considered this to be relevant when (for children above compulsory school age) councils must assess whether a child can walk to school considering mobility problems relating to SEN and behaviour as well as any physical disability. If Ms X applies again for transport support once her child is over compulsory school age, we would expect the Council to take into account how SEN and behaviour may affect walking as well as any physical disability.
31. However, for children under 5 the situation is different. There is no legal duty to provide transport support, no walking test criteria, and the Council has a discretion whether to provide support. The statutory walking distance rules and other criteria in s.508B and Schedule 35B do not apply, because the child is not an ‘eligible child’ due to their age. The Council’s policy says it will provide transport support only when exceptional circumstances apply. The panel decided as there were two parents and an available car, and no evidence on the application either parent worked (so were unavailable to transport to school using their own car), then the threshold of exceptional circumstances was not met. While I do have some concerns with the emphasis on a physical disability and with the reasoning provided in the decision letters, I am not persuaded this fault had any bearing on the outcome. Ms X would either need to provide evidence why neither parent could transport by car and show exceptional grounds, or she would need to apply again for Year One when her child will be compulsory school age and the test for eligibility will change.

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Agreed actions

32. Within one month of my final decision, the Council will issue a reminder to staff to ensure:
• Decision letters for transport applications refer to the relevant law and provide reasons appropriate for the age of the applicant and the section of the Council’s policy being applied (that is whether they are compulsory school age or not).
• That when assessing whether a child of compulsory school age can walk the statutory walking distance that SEN, behavioural difficulties, or hidden disabilities are considered as well as where there is a physical disability affecting mobility. Decision makers should reflect they have considered different types of disability in their records and decision letters.

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Final decision

33. I have completed my investigation. There was some fault in the way the Council considered the application in that irrelevant factors were considered and referred to in decision letters. However, I am not persuaded that without this fault the outcome would have been different. There is evidence the stage two panel did consider if an exception should be applied and decided this was not merited as exceptional grounds had not been proven. The Ombudsman cannot intervene in the decision reached. (Local Government Act 1974, section 34(3), as amended). While there was some fault, I find this has not caused Ms X a significant injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman