Summary: There was fault in the way the Council considered an application and appeal for home to school transport on special educational needs/disability/mobility grounds. This casts doubt on the decision reached. The Council will apologise, hold a fresh appeal, make a time and trouble payment, and carry out service improvements.

The complaint

1. Mr X complains about the way the Council refused home to school transport for his child who has additional needs. Mr X says the Council failed to consider supporting evidence or the significant difficulties the decision would cause the family.
2. As a result of the decision to remove transport at age 8, Mr X’s child now misses 20-25 minutes at the start of the school day and is collected 10 minutes early at the end of the day so that Mrs X can collect another child from a different school.

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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 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)
4. 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. 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

6. I have considered information provided by Mr X and the Council including the transport appeal documents, decision letters and the child’s Education, Health and Care (EHC) Plan.
7. I have considered relevant law and statutory guidance:
• Education Act 1996
• Travel to school for children of compulsory school age.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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

10. 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);
• 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)

11. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe if they would be able to walk to school if they were accompanied.
12. 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. Councils must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case.
13. 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)
14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
15. The statutory guidance recommends councils adopt the following appeals process:

• 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)

What happened

16. Mr X’s child attends a special school which is between 2-3 miles from their home. Until age 8 the child received free home to school transport.
17. The family have another child who attends a mainstream school over 3 miles from their home.
18. Mr X works fulltime and leaves home early to commute to work so cannot assist getting the children to and from school.
19. Mr X made a transport application for transport to continue after age 8 on the grounds of special educational needs, disability, or mobility problem.
20. The Council refused the application on the basis Mr X’s child’s EHC Plan did not detail any physical mobility problems and it was reasonable for parents to accompany their child to school. It said having children attending more than one school and work commitments were not normally considered good reasons for a parent being unable to accompany their child.
21. Mr X appealed and provided evidence in support of his child’s diagnoses and a supporting letter from the special school. The school said many children at the special school had difficulties with challenging behaviour and sensory reactions which could make their behaviour unpredictable and cause distress. The school said Mr X’s child could not attend their sibling’s school as they needed a special school. The school considered Mr X’s child should receive transport from the Council to ensure they are transported safely and with minimal distress.
22. The Council refused the appeal on the same grounds as before stating Mr X’s child could walk to their school in reasonable safety. While Mr X had referred to mobility issues the Council said these were not evidenced in the annual review or EHC Plan. The Council did not consider children attending different schools an exceptional circumstance.
23. Mr X appealed to stage two. He detailed his child was non-verbal, had incontinence and behavioural / sensory issues. Mr X said his child would only walk short distances and then refuse to walk and have ‘tantrums’. Mr X set out why there was only one parent who could help with travel to school, and that it was not possible for one person to get both children to their schools on time.
24. The Council says there was a stage two panel meeting but no notes were kept other than points recorded in the decision letter refusing transport.
25. The stage two decision letter gave the following reasoning:
• The distance criteria of 3 miles was not met.
• Mr X’s child could access the community by public transport with a personal assistant as noted during the hearing and travel by car or underground.
• Mr X’s work commitments were noted but these were not normally considered an exceptional circumstance.
• It was the responsibility of parents to ensure their children attend school even if they attended different schools.

Analysis

26. 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.
27. Statutory guidance confirms if a child has special educational needs (SEN) or a disability, the Council needs “to assess eligibility 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”. It may take account of whether they would be able to walk to school if accompanied.
28. The legal test for assessing transport on SEN / disability / mobility grounds is a walking test not whether they can travel in a vehicle. The Council has therefore applied the wrong test. This is fault.
29. The Council’s focus is on physical mobility problems but the law and guidance also require it to consider sensory and behavioural barriers to walking. There is no evidence it did so; this is fault.
30. I am also not satisfied the Council has considered the family’s individual circumstances when considering if there was ‘good reason’ why parents could not accompany the child. The family put forward reasons why one parent had to work, why the children had to attend different types of school, and that one child would miss a portion of the school day. The decision letter does not show how these matters were considered; it just refers to the general presumption but does not explain why the panel was not minded to make an exception in this case.
31. The above faults cast doubt on the decision reached.

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Agreed action

Within four weeks of my final decision, the Council will:

32. Apologise to Mr X for the faults identified in this decision statement. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
33. Pay Mr X £200 as an acknowledgement for the time, trouble and frustration caused by having to go through the process twice.
34. Carry out a fresh stage two appeal for Mr X with a different panel considering all needs, in accordance with statutory guidance and applying a test of whether Mr X’s child can walk the distance required.
35. If the Council, following the fresh stage two school transport appeal panel, decides to award school transport it should consider making a payment for reimbursement of any unnecessary expenses incurred taking the child to school since transport was withdrawn.

Within two months of my final decision, the Council will:

36. Remind all officers who carry out transport appeals, 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.
37. Remind officers that applications on SEN / disability / mobility grounds must consider health, safety, sensory and behavioural difficulties and not just physical mobility problems when deciding if a child is able to walk to school.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I have completed my investigation. There was fault in the way the Council considered an application and appeal for home to school transport on special educational needs / disability / mobility grounds. This casts doubt on the decision reached. I am satisfied the agreed actions set out above are a suitable remedy for the injustice caused. The complaint is upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman