Summary: Mr X complained that the Council refused his application for a personal travel budget in April 2021 and that, although it granted his second application in November 2022, it refused to backdate payment to the date of his first application. We have not investigated Mr X’s complaint about his first application because he could have exercised his right of appeal against the Council’s decision. We found the Council was at fault in failing to offer Mr X a right of appeal against its decision not to backdate payment. In recognition of the injustice caused by this, the Council has agreed to apologise to Mr X and review its decision not to backdate his travel expense payments.

The complaint

1. Mr X complains that the Council refused his application for a personal travel budget in April 2021 and that, although it granted his second application in November 2022, it refused to backdate payment to the date of his first application.
2. Mr X also says the Council delayed in responding to his complaint and has offered an inadequate remedy for the injustice caused by this.

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What I have and have not investigated

3. I have not investigated Mr X’s complaint that the Council refused his first application for a personal travel budget. This is because he had a right of appeal against this decision which he could have exercised. In addition, this aspect of the complaint is late. Mr X could have complained to the Council and to us at the time.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. 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)

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How I considered this complaint

8. I have considered all the information provided by Mr X including the Council’s decisions and its responses to his complaint.
9. Mr X 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

Legal and administrative background

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. If only one school is named in a young person’s education, health and care plan (EHCP), 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 the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
12. In deciding whether a child of statutory school age cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’, a council will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child, a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The expectation is a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so (Department of Education 2014 home to school travel and transport guidance).

Key facts

13. Mr X’s son, C, has special educational needs and an EHCP naming his primary school.
14. In March 2021 Mr X applied to the Council for a Personal Travel Budget (PTB) to pay towards his costs of transporting C to and from school. The Council refused the application in April 2021. The decision letter explained that Mr X had a right of appeal against the decision. Mr X did not appeal.
15. In October 2022 Mr X discovered that other parents were receiving travel expense payments from the Council. So, on 10 November 2022, he again applied for a PTB. The Council approved his application on 28 November 2022 and backdated the payments to 10 November 2022.
16. In December 2022 Mr X complained to the Council asking for the payments to be backdated to March 2021 when he first applied for a PTB because his son’s situation had not changed. The Council’s Corporate Complaints Team responded to the complaint saying they were unable to consider Mr X’s request for reimbursement of travel expenses incurred between March 2021 and November 2022. It apologised for the delay in responding to Mr X’s complaint and offered him a symbolic payment in recognition of the inconvenience caused by this.
17. Mr X complained to the Ombudsman.

Analysis

Refusal to backdate payments

18. Mr X says C’s circumstances have not changed since he first applied for a PTB in March 2021. He therefore considers the Council should backdate payment of his travel expenses to that date.
19. The Ombudsman is not an appeal body, and it is not our role to reach a view on the merits of Mr X’s application. That is a matter for the Council.
20. However, I consider the Council should have given Mr X an opportunity to request a review of its decision not to backdate the payments. Although Mr X complained to the Council, the Corporate Complaints Team was unable to reach a decision on his request to backdate the payments. I find failure to offer Mr X the right to appeal the decision was fault and, as a result, he has been denied the opportunity to have the decision reviewed. I have made recommendations to remedy this injustice below.

Complaints process

21. In its response to Mr X’s complaint, the Council accepted there had been delays in the complaints process, both in relation to this complaint and another complaint made by Mr X. The Council offered to pay him a total of £150 in recognition of the delays in responding to both complaints. Mr X considers the Council should have offered him a payment of £150 in respect of each complaint.
22. I consider the Council’s apology for the delays in responding to Mr X’s complaints and the payment of £150 is a satisfactory remedy for the injustice caused by the delay in responding to his complaints.

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Agreed action

23. The Council has agreed that, within one month, it’s SEN Transport Team will:
• send an apology to Mr X for failing to offer him an appeal against its decision not to backdate payment of his travel expenses; and
• review its decision not to backdate Mr X’s travel expense payments and write to him explaining the outcome.
24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. I find the Council was at fault in failing to offer Mr X a review of its decision not to backdate his travel expense payments.
26. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman