Summary: Mr F complained the Council ignored his concerns about the school transport for his son who has special educational needs. There was fault which caused uncertainty and for Mr F to miss out on a personal travel budget. The Council has agreed to make payments to remedy this injustice.

The complaint

1. Mr F complains that the Council ignored their concerns and in Autumn 2022 changed the school transport for his son who has special educational needs.
2. As a result his son refused to use the transport and Mr F and his wife have had to drive him up to 60 miles a day to and from school without reimbursement since November 2022. This has caused the family distress.
3. Mr F wants the Council to provide suitable transport and reimburse their travel expenses.

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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. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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What I have and have not investigated

8. Mr F complained to us in June 2024 but I have decided to exercise my discretion to investigate events from autumn 2022. This is because Mr F raised the matter with the Council in 2023 and it was reasonable for him to have awaited a response before complaining.

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How I considered this complaint

9. I spoke to Mr F about his complaint and considered the information he sent and the Council’s response to my enquiries.
10. Mr F 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

School transport for children with special educational needs

11. A child with special educational needs (SEND) may have an Education, Health and Care (EHC) plan. The EHC plan sets out the child's educational needs and what arrangements should be made to meet them. This includes which school, or type of school, they attend. If only one school is named in a young person’s EHC plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest qualifying school for school transport purposes.
12. Where the child is attending the nearest suitable school, they will qualify for free transport provided any other relevant conditions are met. Not every child with an EHC plan, or who attends a special school, will be eligible for free travel to school. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2024)
13. Personal travel budgets (PTB) can be given for transport if the parent agrees.
14. Transport is normally by bus or train. The Council’s website says transport may be provided in smaller vehicles if it has been assessed that the pupil has a specific difficulty or disability that prevents them from travelling safely using bus or train services. The Council will ask for professional third-party medical evidence if it is not apparent from its records what the issues are. Lone taxi transport is only considered when all other options have been explored. Passenger assistants are only provided where a specific health and safety need has been identified for individual passengers.
15. Transport providers may change from time to time. The Council says it will communicate changes with parents as soon as it can and, where authorised, home visits will take place.

What happened

16. I have summarised the key events. This is not meant to detail everything that happened.
17. Mr F’s son, J, has special educational needs. His EHC plan named a specialist school in a neighbouring local authority area (“the School”) and he started there in autumn 2021. J was eligible for home to school transport and the transport requested in September 2021 was “shared taxi with regular driver and a shared passenger assistant”. There is no reference to limiting the numbers of other children J could share with or the size of the vehicle. A taxi was provided and J was the first child to be picked up.
18. In 2022 the family moved. The Council says the taxi operator gave notice during the summer but it did not act on this. This meant that no taxi arrived on the first day of term in September 2022. Mr F spoke to the Council which apologised and a new taxi operator was found temporarily. Mr F complained and received a response on 16 September 2022 apologising.
19. The Council then arranged for the operator to continue in the longer term. As more children from J’s new area had begun travelling to the School, the new transport would be a larger vehicle (a minibus) with two extra children (four in total) and J would be the second child to be collected. This was due to start after the October half-term.
20. The Council called Mr F to advise him of this on 24 October and emailed him on 25 October 2022; it said it would offer Mr F a personal travel budget (PTB) until it decided whether the new arrangements were suitable. Mr F said that the new transport would not be suitable for J who would not be able to cope with the other children. He was also concerned that one passenger assistant would be insufficient.
21. Mr F complained to the Council on 26 October 2022 that the taxi providers had been changed four times in the last year, there had been poor communication by the Council and that J required a lone taxi.
22. The Council’s transport team sought advice from the SEND team and the School. The School had no concerns about the children sharing the transport. The SEND team advised that J’s EHC plan did not specify that J needed transport on his own, though it set out that he had sensory issues.
23. The Council carried out a passenger risk assessment on 1 November 2022. The assessment found that shared transport and a shared passenger assistant was suitable. It did not specify the numbers of children or size of vehicle that were suitable for J. Mr F says the assessor arrived after J had left for school; the Council has no record of that. The assessment said there should be a review at the end of November.
24. The Council responded to Mr F’s complaint on 9 November 2022. It apologised for the problems on the first day of term and said that, following the risk assessment, it considered the new transport arrangements to be suitable for J.
25. Mr F says J initially used the new transport but in February 2023 he started to refuse. Mr F says the bus continued to turn up in the mornings but often J would not get on it and would have meltdowns. In the end, Mr F would message the bus driver saying he would take J to school. J was therefore using the minibus to come home from school but not to go to school.
26. Mr F called the Council in March about J not using the bus. The Council has no record of this call, although does not dispute it happened. The Council emailed Mr F on 23 March that because J was using the transport to go home from school the Council would not provide an additional lone taxi. Mr F continued to transport J to school.
27. Mr F called the Council on 5 December. He said that J had now stopped using the bus completely and requested a lone taxi. The Council emailed him on 7 December that a lone taxi could not be provided as a trial due to budget constraints and lack of availability. The Council would ask the school for advice on how J could use the transport. I have not seen evidence of any further action.
28. On 10 January 2024, the Council asked Mr F for more information about J’s behaviour in using the transport and a request was then made for a lone taxi. The Council considered this. It had some concerns that J may not get into any vehicle as Mr F had said that J would sometimes refuse to get into his car. I have seen the Council sought advice from the School and there was some internal discussion about offering a PTB. The Council emailed Mr F offering this on 11 April 2024.
29. The Council decided it would offer lone transport without a passenger assistant to J for a trial period of four weeks. The aim would be to work with J to enable him to access shared transport after the trial ended. The Council emailed Mr F about this on 30 April 2024.

Mr F’s complaint

30. Mr F complained on 17 May 2024. He said that a four-week trial and no passenger assistant was insufficient. He again complained about the change in transport from autumn 2022 and that he had not been paid a PTB, as promised in October 2022.
31. The Council spoke to Mr F on 23 May 2024. It agreed to provide a lone taxi with a personal assistant for four weeks, followed by a review. The personal assistant would not be continued if J’s behaviour in the vehicle was considered safe. The taxi would continue and any changes or plans to put another child on the vehicle would be discussed with the school and Mr F. In the meantime, a PTB of £28.80 per day would be offered from 14 April to 31 July 2024 to allow the Council time time to tender a taxi contract.
32. The Council’s stage one complaint response was sent on 30 May, setting out what it had agreed. The Council apologised for poor communication.
33. Mr F remained dissatisfied; he said his concerns about the transport had been ignored for 18 months, a transport manager had not called him and he asked to be reimbursed the costs of transporting J.
34. The Council sent its stage two response on 31 May. It said a manager had called him on 23 May and it could not backdate the PTB as other transport had been being funded prior to April 2024.
35. In autumn 2024, following the trial, the Council agreed to continue providing a lone taxi with passenger assistant.

My findings

36. It is not the Ombudsman’s role to determine what transport is suitable for J; that is for the Council. My role is to consider whether there has been administrative fault in the way the Council reached its decisions.
37. The Council has accepted there was fault in summer 2022 in relation to not actioning the taxi operator’s notice. It put in place temporary transport and has already apologised for the lack of provision on the first day of term in September 2022. This is an appropriate and proportionate remedy for the injustice caused.
38. The Council put new transport in place from November 2022 which was a larger vehicle with more children. This was in line with the original request for transport for J, which did not specify that he required a car or limited the number of children he could share with. Mr F raised concerns that it was not suitable. The Council took advice from the SEND team, J’s School and carried out a risk assessment. I note that Mr F says the assessor arrived after J had left for school, but the assessment reflects J’s needs. On the evidence seen, I do not find fault in the way the risk assessment was done. I therefore do not find fault in the Council’s decision in November 2022 that the new transport arrangement was suitable for J. Nor do I find fault in the decision not to provide a PTB in November 2022 as the Council had decided the transport offered was suitable.
39. However, the risk assessment says the situation should be reviewed at the end of November 2022. I have seen no evidence it was. This is fault which causes uncertainty about what decision may have been made in December 2022 about the transport. This uncertainty is an injustice to Mr F.
40. Mr F contacted the Council in March 2023, again asking for a lone taxi. It was fault for the Council not to keep a case record of this conversation. Nor is there evidence that the Council asked Mr F to provide any additional third-party professional evidence about why J was unable to travel in the minibus in the morning. This was fault. My view, on the balance of probabilities, is that, if proper records had been kept and further information sought, it is unlikely a lone taxi would have been authorised from March 2023 as the Council was providing shared transport that J was using.
41. The situation changed when J stopped using the minibus altogether. Mr F contacted the Council on 5 December 2023. Further information was requested in January 2024 but the Council did not respond to him until April 2024. This was delay, which caused distress and frustration to Mr F. I consider the impact on the transport provision below.
42. In response to my enquiries, the Council said it had not agreed to a lone taxi in December 2023 because it “had still not determined the reason” for J requiring one. The Council should have asked for third party medical evidence if its own records did not set out whether J required lone transport. I have seen no evidence it did so; this was fault.
43. This fault causes some uncertainty about whether the Council would have agreed to lone transport. But on balance, I consider it unlikely that it would have done as it had not yet explored all other options. It is likely that the Council would have taken the same actions as it did later, when it agreed to a PTB and a trial of a lone taxi with passenger assistant when this could be arranged. But it took until April 2024 to offer the PTB and I have seen no good reason why it took this long. My view is, given that J was effectively without transport from December 2023, the Council should have offered this sooner.
44. I therefore find there was a delay in offering Mr F the PTB, which is fault. This caused Mr F to miss out on the transport budget from the start of term in January 2024 to 13 April 2024.
45. I accept that commissioning a lone taxi and personal assistant as a trial would have taken some time, but I find there was delay in starting this process.
46. If there had been no delay or fault after Mr F contacted the Council on 5 December 2023, the Council could have sought additional information about J’s needs, offered a PTB from January 2024, and put a trial lone taxi in place about three months earlier than it did.
47. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that for uncertainty and distress caused by fault, a moderate, symbolic payment may be appropriate.

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Agreed action

48. Within a month of my final decision, the Council has agreed to:
1. Apologise to Mr F
2. Pay him £300 to remedy the uncertainty and distress caused by fault, as set out in paragraphs 39 and 41.
3. Pay him the personal transport budget he would have been paid but for delay from January 2024 to 13 April 2024. [£28.80 per day x 58 school days = £1,670.40.]
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman