Summary: Mrs E complained about how the Council handled her application for home to school transport for her son. We find fault with the way the Council considered Mrs E’s application and appeal. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs E complained about the Council handled her application for home to school transport for her son (F). She says she submitted information for the stage one appeal which was received in time but not made available to the decision maker. Mrs E further complained the stage two appeal hearing went ahead with only two hours’ notice. She adds the Council failed to abide by its own policy and the statutory guidance.
2. Mrs E says the matter has been very stressful.

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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 a council’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. I considered information Mrs E submitted with her complaint. I made written enquiries of the Council and considered information it sent in response.
7. Mrs E 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

8. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
9. Section 508B of the Education Act 1996 places a duty on councils to ensure that suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school.
10. Schedule 35B says councils have a duty to make transport arrangements for all children who cannot be reasonably expected to walk to school because of mobility problems or because of associated health and safety issues related to their SEN. Eligibility for such children should be assessed on an individual basis to identify their transport requirements. Usual transport requirements (for example the statutory walking distance) should not be considered when assessing the transport needs of children eligible due to SEN and/or disability.
11. The government also issued statutory guidance in July 2014 to councils on home to school transport. This says:

• When determining whether a child with special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, councils must consider if the child could reasonably be expected to walk to school if accompanied. If so, councils must also decide whether the child’s parents can reasonably be expected to accompany the child on the journey to school, taking account of a range of factors including the child’s age and whether one would normally expect a child of that age to be accompanied. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 17)
• The general expectation is that 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. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 18)

The Council’s policy

12. The Council issued its policy on home to school transport in July 2015. The Council will provide travel support for children with an EHC plan where a parent/carer is not getting the higher rate of mobility and disability living allowance and:

• The child lives further than the statutory walking distance between home and school; and
• The child attends the named school the Council has determined in the EHC plan as being the nearest school that is able to meet the child’s needs OR
• The child lives within the statutory walking distance but is unable walk relatively short distances owing to disability or mobility difficulties and family circumstances make it not reasonable to expect the parent/carer to take their child to school.

What happened

13. Mrs E’s son (F) has SEN and an EHC plan. Mrs E applied to the Council for home to school transport for F. F was due to start secondary school in September. She stated in her application form that F has a learning disability which means he cannot walk to school, and he also has hypermobility and sensory needs.
14. The Council rejected Mrs E’s application. It said E lives within the statutory walking distance and therefore it could not provide travel assistance.
15. Mrs E sent her stage one appeal to the Council on 6 May. She said E has multiple health issues which affect his ability to walk to school. She also said the route the school was not safe to walk.
16. The Council reviewed Mrs E’s stage one appeal on 24 May. It sent her a letter in the post on 25 May and said it had carefully considered F’s SEN and her concerns about him walking to school. It said it had also considered her home and work arrangements. It rejected her appeal because F lives within the statutory walking distance.
17. Mrs E emailed the Council on 25 May and asked when the deadline was for it to review her stage one appeal. She also asked for a response by email because she only receives post once a week. The Council responded and said it would review her appeal within 20 days from 6 May. Mrs E emailed the Council on 26 May and provided it with further evidence to consider. This was a supporting statement from F’s school which said he would be at risk if he had to travel to school independently.
18. The Council emailed Mrs E on 3 June and said it reviewed her appeal on 24 May. Therefore, it had not considered the supporting statement from F’s school. It said it would keep a copy of it on her file.
19. Mrs E responded the following day. She said she was disappointed it had not told her on 25 May that it had already reviewed her appeal.
20. Mrs E appealed to the Council at stage two. She said statutory walking distances do not apply to children with SEN. She also said because of her and her husband’s working and personal commitments, and her own health issues, they would not be able to accompany F to school. She provided documents in support of her appeal.
21. The Council wrote to Mrs E on 7 July and invited her to a stage two appeal hearing on 14 July. It sent the letter in the post.
22. Mrs E says she did not receive the letter. She says she received a phone call from the Council on 14 July asking her to confirm her attendance at the hearing. The Council says Mrs E called the contact centre and requested a call back as she had not received a link to attend the virtual meeting. It says a member of staff called her back to advise her how to join the meeting.
23. The panel considered Mrs E’s case and her verbal representations. Mrs E explained her ongoing health issues, her working patterns and her caring commitments. The panel focused on whether Mrs E or any other family members could accompany F to school. It suggested F could use a public bus which was a five-minute walk from home and a school bus which was a three-minute walk. Mrs E said neither option would work.
24. The panel suggested two options. One was for the Council to pay for an annual bus pass. A family member or friend could accompany F on the bus to and from school. If Mrs E disagreed, then an alternative option was to provide free home to school transport form September to December while the Travel Training team assessed F’s ability to travel. The Travel Training team teaches young people with SEN how to use public transport independently. The panel felt it would be important because of Mrs E’s desire to promote F’s independence.
25. Mrs E said the first option was not viable because no one could accompany F on public transport. The Council therefore agreed to provide free home to school for the first school term while it referred the matter to its Travel Training team.
26. The Council has extended this agreement and is now providing free home to school transport until the February 2022 half term as the Travel Training team still needs to assess F.

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Analysis

27. The Education Act 1996 makes it clear that usual transport requirements should not be considered when assessing transport needs of eligible children due to SEN. Therefore, the Council’s decision to reject Mrs E’s initial application and her stage one appeal solely based on the statutory walking distance was fault. The Council accepts that it letters were confusing, and it agrees it should have provided more context for its decision.
28. The Council’s stage one appeal decision letter also lacked detail and it failed to properly address Mrs E’s comments. Mrs E said F had several health issues which meant he could not walk to school. The Council failed to properly consider this in accordance with its own policy and the statutory guidance. It also said it had reviewed Mrs E’s home and work arrangements. However, Mrs E had not provided any details of her home and work arrangements in her stage one appeal letter.
29. It seems the panel accepted F could not reasonably walk to school. Therefore, it focused on whether Mrs E or family/friends could accompany F to school by using public transport. The panel notes refer to Mrs E presenting extenuating circumstances. Similarly, when the Council issued its stage two appeal decision letter to Mrs E, it said she had demonstrated exceptional circumstances and therefore it would award transport outside of the policy. However, the statutory guidance says parents of children with SEN should be expected to accompany a child unless there are ‘good’ reasons why it would be unreasonable for them to do so. I am concerned from the panel’s notes and the Council’s letter that it applied a higher threshold than the statutory guidance recommends.
30. The Council accepts the use of the phrases exceptional and extenuating circumstances are misleading. It is already reviewing its policy because of a previous Ombudsman investigation, and it will amend the wording.
31. The Council says it does not consider F to be eligible for home to school transport, but the panel felt that given Mrs E’s circumstances it should offer a temporary solution. Given the faults I have identified, I am not satisfied Mrs E’s appeal has been properly considered in accordance with the statutory guidance. Therefore, the Council needs to reconsider Mrs E’s stage two appeal with a fresh panel.
32. Mrs E has also complained about the administrative issues she faced. When she emailed the Council on 25 May, it said it would review her appeal within 20 days from 6 May. Therefore, she assumed it had not reviewed her appeal and she sent further evidence the following day. The Council should have told her when she emailed it on 25 May that it had already reviewed her file. Its failure to do so is fault. However, Mrs E was able to send her evidence again for the stage two appeal and so I do not consider the Council’s fault caused her a significant injustice.
33. With regards to the invitation to stage two appeal hearing, the Council sent the letter in time, but it appears Mrs E did not receive it. She did attend the hearing, but at short notice. Mrs E told the Council on 25 May she only receives post once a week, so it would have been wise for it to also send her a copy of the letter by email. I welcome the Council has now revised its process and it will now send copies of the invite letters to hearings by email.

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Agreed action

34. To address the injustice caused by fault, by 10 March 2022 the Council has agreed to:

• Apologise to Mrs E.
• Pay her £100 for her avoidable time and trouble.

35. By 7 April 2022:

• Arrange a fresh stage two appeal with a different panel.

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Final decision

36. I have found fault by the Council, which caused Mrs E an injustice. The Council has agreed to my recommendations and so I have completed by investigation.

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Investigator's decision on behalf of the Ombudsman