Summary: Mr Y complains about how the Council considered the application for his children, D and E, to receive home to school transport assistance. In our view, the Council did not record its consideration of all relevant supporting evidence provided with the applications. The Council also focused on the home to school distance and did not properly consider whether D and E could travel to school safely. This fault caused uncertainty which the Council has agreed to remedy with the actions listed at the end of this statement.

The complaint

1. Mr Y complains the Council wrongly refused his application and subsequent appeal for his children to receive home to school taxi transport. He says the Council made its decision based on the home to school distance and did not properly consider the special educational needs of the children and the associated risks.

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The Ombudsman’s role and powers

2. 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. (Local Government Act 1974, section 34(3), as amended)
3. 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. 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. During my investigation I discussed the complaint with Mr Y and considered the information he provided.
6. I made enquiries of the Council and considered its response.
7. I consulted the relevant law, guidance and policies about home to school transport for children with SEND.
8. Mr Y 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

What should happen

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. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. The statutory guidance (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5) 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.
12. The Council’s ‘SEND Home to School travel assistance policy for 5-16 year olds’ says, “this policy sets out the travel assistance available in cases where a child or young person cannot be reasonably expected to travel to school safely on account of their special educational needs/disability”. The policy goes on to say, “consideration will be given to whether a child can reasonably walk to school or use public transport” and the Council will review “the health and safety of the child and young person on the route to and from school”.

What happened

13. At the time of the matters complained about, Mr Y had two young children whom I will call D and E. Both D and E had Education Health and Care (EHC) plans due to their Autism, learning disabilities and communication needs.
14. D and E were due to start school in September 2021. Mr Y expressed a preference for a local school, but it was unable to admit D and E. The Council allocated another local school and Mr Y applied for transport assistance in January 2022. In the application Mr Y explained:

“Both [D and E] have special needs and I cannot handle taking both [D and E] on public transport. They are at risk of running in the road, not following instructions and can throw tantrums when in busy/overwhelming environments. Also [school allocated] is not my local primary school and is further away than the school we wanted [them] to attend… therefore we have no choice but to go to school which is 4 miles away. I have had to stop working in order to look after [D and E]”.

15. On 1 February 2022 the Council granted transport assistance.
16. One week later the Council received notification that the school attended by D and E could no longer meet their needs. The Council started the process of identifying another suitable school.
17. In the meantime, Mr Y received funding from the Council for D and E to attend a childminder. Mr Y submitted another transport application for the new placement and requested a ‘Travel Assistance Budget’ (TAB) for a mileage allowance for him to take D and E to the childminder by car. The Council granted the TAB in April.
18. The Council named a specialist school for children with Autism in Section I of D and E’s EHC plans in July 2022. The placement was from September 2022.
19. Mr Y applied for transport again. He said he told the Council of the recent safety issues he had faced with both D and E trying to unfasten their seatbelts whilst in a moving car.
20. The Council considered the applications and responded on 9 August 2022. The letter sent to Mr Y said:

“The distance of 1.2 miles to school does not fall within the DfE [Department for Education] statutory guidelines for SEN Travel Assistance. The journey time is 6 minutes travelling by public transport, this is in line with the guidelines for suitable travel. Without further evidence provided of additional needs or concerns around safeguarding, [D and E] would not be eligible for travel assistance”.

21. Mr Y submitted an appeal and on 15 September 2022 a ‘Senior Independent Travel Trainer’ submitted a report to the Council. In summary, this said:
• D and E are currently transported to school by Mr Y in the car. They take their seatbelts off and climb around the car making the journey very unsafe. They try to open doors and run away.
• When walking down the road D and E need to be held with a firm grip as they will try to get away. Mr and Mrs Y do not get on public transport with the children unless the car is broken. D and E cannot travel by bus with one parent as they struggle to sit still.
• D and E are high energy and move around a lot, pushing and grabbing their siblings.
• D and E need one to one support and would therefore need both parents to travel in the car due to the risk of them climbing around the car.
• Mr Y had to leave his job because his wife cannot transport D and E herself and he too now struggles to transport them alone.
22. The Council responded at stage one of the appeal process on 22 September 2022. It wrote to Mr Y to explain its decision to refuse the appeal.
• The journey to school is 1.2 miles and is less than the statutory distance set by the DfE. Children aged less than eight will be considered if they live more than two miles from their place of education.
• The Council appreciates D and E have learning difficulties which mean that transporting them to school can be challenging. A recent assessment observed them to take their seatbelts off and climb around the car. The Council would recommend the installation of specialist safety harnesses within the car.
23. Mr Y did not request a second stage appeal. He continued to transport D and E to school himself without assistance.
24. Mr Y applied to the Council again in May 2023 for transport assistance. The Council responded on 16 May 2023. It wrote to Mr Y to explain its decision to refuse the application.
• The home to school distance is less than the statutory distance set by the DfE.
• The journey time is 13 minutes when travelling by public transport which is in line with the guidelines for suitable travel.
• There is no evidence of D and E having mobility issues. They are therefore capable of making the journey to school independently or with the support of an adult.
• There is no evidence regarding challenging behaviour or nothing in their EHC plans about safety.
25. On 25 May 2023 D and E’s school wrote a supporting letter explain to say there had been several safeguarding concerns raised by the school in relation to the children’s safety whilst travelling. The school said it had tried various ways to ensure the safety of D and E, but these had been ineffective. In the school’s view, D and E needed taxi transport with an escort.
26. D sadly died in mid-2023 when exiting a moving car.
27. The family’s GP wrote a letter of support to explain that E does not have any danger awareness and is at risk of sustaining injuries unless steps are taken to safely transport E.
28. The Council granted taxi transport for E from June 2023 because “... we accept that [E] has significant behaviour needs that can make travelling to school unsafe even when accompanied by a responsible adult”. The Council said taxi transport is the “… most suitable form of transport to ensure [E] has a punctual, safe and comfortable journey to school”.
29. Mr Y complained to the Council about its decision to refuse transport assistance for D and E in 2022. Although the Council did not uphold Mr Y’s complaint, it did outline some service improvements and offered a full apology for the lack of contact after the death of D.
30. Dissatisfied with the response, Mr Y complained to the Ombudsman.

Was there fault causing injustice in the Council’s actions?

31. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the process 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, regardless of whether the person disagrees with the decision made.
32. I have considered the information the Council took account of when deciding to refuse transport assistance for D and E. In my view, and based on the available information, I find fault with how the Council assessed the transport applications made for D and E in August 2022 and again in May 2023. This is because:
• The original decision letter issued by the Council on 9 August 2022 says the Council refused transport because D and E did not live beyond the statutory walking distance of two miles. The law says the Council must consider the child’s ability to walk to school as well as the home to school distance. The Council’s decision letter said there was no evidence of, “additional needs or concerns around safeguarding”. The EHC plans in place at the time said the family were applying for blue badges for parking “… as it is important to keep the children safe”. In my view, the officer should have demonstrated more curiosity and considered all the available information when deciding whether D and E could reasonably walk to school or safely use public transport. Instead, the primary reason for refusal was cited as the home to school distance and this is fault.
• The stage one appeal decision letter issued on 22 September 2022 does not evidence the senior officer’s full consideration of the travel trainer’s assessment report. The report clearly recommends that two adults are present during car journeys to ensure the safety of both children. The letter does not show how the officer considered this important point and the reasons why they made a decision contrary to the recommendation. The letter does not therefore comply with the requirements of the statutory guidance which says the senior officer must explain why and how they reached the decision and the factors considered. This fault has caused injustice in the form of uncertainty because we do not know if the Council properly considered the supporting evidence and whether, in the absence of fault, it would have arrived at a different outcome.
• The refusal letter issued on 16 May 2023 directly contradicts the findings of the travel trainer. The refusal letter says there was no evidence to show that D and E demonstrated challenging behaviour. The report from September 2022 clearly outlined the tendency of D and E to run away when walking along the road as well as their unsafe behaviours when travelling by car. This is fault because there is no evidence to show the Council considered these important points.
• In response to both Mr Y’s complaint and our enquiries, the Council said it considered Mr Y’s ability to transport D and E to school independently using a TAB. Although the Council says “this historical information was a decisive factor in the decision reason” the Council did not present this reason in the original decision letters. In my view, the ‘historical’ information should not have been a significant deciding factor because circumstances had changed since Mr Y previously accepted the TAB. As the travel assessor explained, the children each needed an adult to support them when travelling by car due to their increasingly unsafe behaviours. This recommendation was not in place when Mr Y previously requested and used the TAB.
33. Although we cannot say the Council would have made a different decision if it had properly considered the available information, we find the fault has caused injustice in the form of uncertainty. To acknowledge the uncertainty caused by fault we have recommend a symbolic remedy in line with our Remedies Guidance.

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Agreed action

34. Within four weeks of my final decision, the Council has agreed to:
• apologise to Mr Y for the fault we have found. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance when making the apology; and
• make a symbolic payment of £1,000 to acknowledge the distress and uncertainty caused by the failure to properly assess the transport applications for D and E in 2022 and 2023.
35. In response to Mr Y’s complaint, the Council also acknowledged that there were elements of learning from Mr Y’s complaint. These are summarised as:
• full review of the application form to ensure the holistic needs of the child are taken into account and evidenced, where appropriate; and
• external review of training given to panels to ensure that skills are updated annually to enable panel members to identify and understand children more holistically.
36. We consider the above service improvements are proportionate and appropriate for overcoming the fault we identified in the application and appeal process. Within eight weeks of my final decision, we recommend the Council provides evidence of the service improvements summarised in the paragraph above.

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Final decision

37. I have completed my investigation with a finding of fault causing injustice which the Council has agreed to remedy with the actions listed in the section above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman