Summary: Mr B complained the Council wrongly refused to award travel assistance for his son who has special educational needs, failed to consider his circumstances and delayed responding to his correspondence. The Council failed to carry out the appeal properly, failed to keep notes from the appeal hearing and delayed responding to Mr B’s correspondence. Mr B has experienced distress and cannot be satisfied his appeal was properly considered. An agreement to carry out a further appeal, apology and payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, Mr B, complained the Council:
• wrongly refused to award travel assistance for his son when he has special educational needs (SEN) and cannot safely walk to school or use public transport;
• in refusing his appeal, failed to consider his circumstances and applied a blanket policy based on distance; and
• delayed responding to his correspondence.
2. Mr B says because of the Council’s failures his son’s school attendance has been impacted and the situation has caused his family distress.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)
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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How I considered this complaint

6. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr B and the organisation 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

The statutory guidance

8. The Government has produced statutory guidance (statutory guidance) for councils to follow when considering school transport applications – ‘Travel to school for children of compulsory school age.’ For stage two appeals this says an independent appeal panel should consider the case.
9. Panel members should be independent of the original decision-making process but need not be independent of the local authority. They should have the knowledge, skills and experience to ensure the local authority complies with its statutory duties, that a balance is achieved between meeting the needs of parents and of the local authority, and that children are not placed at unnecessary risk.
10. The local authority should enable any parent that wishes to, to attend an appeal hearing, virtually or in person, to present their case. Where a parent does not wish or cannot attend a hearing, the panel should make its decision based on the parent’s written representations.
11. Within 5 working days of completing its considerations, the appeal panel should notify the parent in writing of the outcome of their review. They should explain:
• whether they have upheld the local authority's original decision;
• why they reached that decision;
• how the review was conducted;
• the factors considered in reaching their decision;
• which other agencies or departments were consulted as part of the review, if any.

The Council’s home to school transport assistance policy

12. The Council’s home to school transport assistance policy (the policy) says a child will be eligible for assistance with transport if:
• the child attends the normal area school, or a school closer than the normal area school, or the nearest suitable school as determined by the Council; and
• the child lives beyond the statutory walking distance from that school.
13. The statutory walking distance is two miles for children under eight and three miles for children above eight.
14. Transport applications are assessed based on the information supplied, so if a child's circumstances change it will be necessary for the parent/carer to tell the Authority and re-apply if appropriate.
15. Most children with an education health and care plan (EHC Plan) do not receive or require specialised travel assistance. Where a child lives within statutory walking distance of the school named in the EHC Plan and can walk to school, accompanied as necessary, the Council expects parents/carers to make arrangements for the child in the same way as parents of children without SEN.
16. Transport arrangements will be made for both children of compulsory school age with SEN and children with mobility problems whose school is within statutory walking distance of the home address only if the authority is satisfied the child concerned cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their SEN and/or disability. Eligibility for such children will be assessed on an individual basis to identify whether they have any particular transport requirements.
17. The Council has discretionary powers to go beyond its statutory duties and provide transport assistance for children who do not meet any of the eligibility criteria. The Council will consider each request for transport assistance on a case-by-case basis. Parents/carers will be required to submit any evidence the Council might require to make a decision on whether to exercise its discretionary powers.
18. The first stage for reviews is review by a senior officer. Stage two is reviewed by an independent appeal panel.
19. Within 40 working days of the request for a stage two appeal an independent appeal panel will meet to consider written and, if the parent/carer wishes to attend, verbal representations from the parent/carer and officers involved in the case.

What happened

20. Mr B’s son has SEN and an EHC Plan. Mr B applied for school transport for his son in October 2023. Mr B said his son could not walk to school or safely access public transport. The Council refused the application as Mr B lives within two miles of the school.
21. Mr B asked the Council to review its decision on 29 October. Mr B provided the Council with a copy of his son’s EHC Plan, speech and language therapy report, educational psychology report and a letter from the fracture clinic for his partner. Mr B provided further detail in his review request about why his son could not manage walking to school or accessing public transport, referring to his SEN. The Council says Mr B sent that email to the wrong email address and it told Mr B it would pass it on to the right department but failed to do so.
22. Mr B chased the Council on 23 January 2024. The Council explained its transport team had not received the email as it had gone to the wrong email address and asked Mr B provided information again. Mr B did that.
23. Mr B chased the Council on 12 February. On 13 February the Council told Mr B the appeal panel had considered the case and refused his appeal. The Council explained that was based on its policy of statutory walking distance as Mr B lived less than two miles from the school.
24. Mr B put in a complaint on 22 April. Mr B raised concerns about the Council applying a blanket policy of refusing school transport solely because of the distance between home and school. Mr B also raised concerns the Council had not considered its discretionary powers. Mr B chased the Council on 29 May and 19 June. On 26 September the Council emailed Mr B to tell him the complaints process could not overturn the decision made on the transport appeal and advised him to appeal.

Analysis

25. Mr B says the Council wrongly refused to award travel assistance for his son when he has SEN and cannot safely walk to school or use school transport. Mr B says the Council, in refusing his appeal, only considered the distance from the school to his property and did not consider the information he provided about his son's difficulties.
26. The evidence I have seen satisfies me when the Council first turned down Mr B's application for transport assistance it referred only to the walking distance between Mr B's property and the school. At that point though Mr B had not provided the Council with a lot of information about his son's difficulties. I am satisfied Mr B provided more information in support of his appeal. I have several concerns about how the Council dealt with the appeal.
27. My first concern is the Council did not give Mr B an opportunity to attend the panel hearing and put his case in person. The statutory guidance is clear councils should give parents/carers the opportunity to attend panel hearings. The Council says it does not offer parents and carers the opportunity to attend the panel meeting under its current home to school transport policy. However, that is not accurate. The Council's home to school transport policy says an independent appeal panel will meet to consider written and, if the parent/carer wishes to attend the panel meeting, verbal representations. Failing to offer Mr B the opportunity to attend the panel hearing is therefore a breach of the Council's own policy and the statutory guidance. That is fault.
28. I am also concerned the Council says it does not keep any notes from appeal hearings. Without any contemporaneous notes from the appeal hearing I cannot establish what information the panel considered. The Council has provided a document from August 2024 which lists the information the appeal panel considered. Given the Council did not keep notes of the appeal hearing I am not sure how the Council has identified what the panel members considered. In any event, that document was created around six months after the appeal hearing took place. I therefore do not place significant weight on it as it is not contemporaneous evidence.
29. The only contemporaneous information I have about what the appeal panel considered is the Council's email of 13 February 2024 telling Mr B the result of the appeal. That email refers only to the walking distance to the school. It does not refer to any of the representations Mr B made about his son's difficulties accessing public transport or walking to school. I am therefore not satisfied the Council considered the information Mr B provided when refusing his appeal.
30. I am also concerned the Council delayed arranging the appeal. I am satisfied Mr B asked for an appeal in October 2023. However, the Council did not consider the appeal until February 2024. I recognise that was because Mr B sent his appeal to the wrong email address. However, I am satisfied the Council had identified that and agreed to pass the email on to the right department but then failed to do so. That is fault and unnecessarily delayed Mr B's appeal.
31. I am further concerned the Council delayed dealing with Mr B's complaint. The evidence I have seen satisfies me Mr B put in his complaint in April 2024 and there is no evidence the Council responded to that until September 2024. That delay is fault.
32. I am also concerned the Council declined at that point to treat Mr B's concerns as a complaint as it said the complaints process could not overturn the school transport decision. While that may be the case, Mr B had raised concerns in his complaint about the Council applying a blanket policy and failing to consider its discretionary powers. I am therefore satisfied Mr B had raised concerns about the process the Council had followed. I see no reason the Council could not have dealt with that under its complaints procedure and failure to do that is fault.
33. As remedy for the failures in the appeal process I recommended the Council hold a further appeal and give Mr B an opportunity to put his case in person and present any new evidence he has. The Council should keep notes of the appeal hearing and should write to Mr B to explain its decision. I further recommended the Council pay Mr B £100 to reflect his distress due to the time and trouble he had to go to pursuing this case. The Council has agreed to my recommendations, as well as my procedural recommendations which are:
• remind those dealing with school transport cases of the need to ensure the Council gives parents/carers the opportunity to attend appeal panel hearings should they wish to do so;
• advise those dealing with transport appeals of the need to keep notes from the appeal hearing so there is a record of what information the appeal panel considered;
• remind those dealing with complaints to ensure complaints which include concerns about failure to follow processes or consider relevant information are put through the Council’s complaints procedure even if the Council's view is the complaint process cannot overturn the decision.

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Action

34. Within one month of my decision the Council should:
• arrange for a further appeal panel to consider Mr B’s appeal and give Mr B the opportunity to attend should he wish to;
• apologise to Mr B for the distress he experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr B £100;
• carry out the following actions:
1. remind those dealing with school transport cases of the need to ensure parents/carers are given the opportunity to attend appeal panel hearings should they wish to;
2. advise those dealing with transport appeals of the need to keep notes from the appeal hearing so there is a record of what information the appeal panel considered;
3. remind those dealing with complaints to ensure complaints which include concerns about failure to follow processes or consider relevant information are put through the Council’s complaints procedure even if the Council considers the decision cannot be overturned by the complaint process.

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Final decision

35. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman