Summary: Miss X complained the Council refused to provide transport support for her sone to attend school. The Council's failure to properly advise Miss X on the availability of transport support and how to formally apply for this amounts to fault. This fault has caused Miss X an injustice.

The complaint

1. The complainant, whom I shall refer to as Miss X complained the Council refused to provide transport support for her son to attend school.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Miss X;
• Miss 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

Home school transport

5. 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 (SEN), 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)

What happened here

6. Miss X's son, Mr Y was excluded from school in 2017. As Mr Y felt unsafe attending the school initially identified, in February 2018 the Council identified alternative provision and enrolled Mr Y at School 1. Miss X was concerned that School 1 was out of the borough and asked for transport support for Mr Y to attend, the Council declined. Instead Mr Y's social worker advised Miss X to plan a route for Mr Y and to travel with him to school for the first few weeks.
7. Mr Y attended School 1 infrequently and within a few months he was not attending at all. Mr Y told the Council he did not feel safe attending School 1.
8. Miss X made a formal complaint about the Council's decision not to provide transport support. Miss X noted Mr Y had to travel across three boroughs on public transport to get to School 1 and had expressed feeling unsafe. She understood School 1 had a minibus but had refused to pick up Mr Y and the Council had refused to pay for taxis.
9. In its response the Council advised Miss X that transportation to education provisions would not be an option for a mainstream pupil. It stated that only pupils with Education Health and Care plans would be considered for transport support and only then via assessment of needs via the Special Educational Needs Panel.
10. Miss X is not satisfied by the Council's response and has asked the Ombudsman to investigate. In response to my enquiries the Council states it is not aware of any formal application for school transport. It states its SEN transport policy shows how the Council meets its duties to provide transport support.
11. The Council has confirmed that children's social care also offers transport in cases where there are safeguarding and discretionary reasons for offering transport
12. The Council also acknowledges that the wording in its response to Miss X's complaint is wrong. It states pupils do not need an Education Health and Care plan to be eligible for SEN transport. They do however need to fulfil the eligibility criteria set out in its policy. The Council states the misinformation appears to be a human error and apologises for any distress or confusion caused.
13. As the officer who provided the information used in the complaint response has since left the Council, it is unable to confirm how the policy was applied in this instance.
14. The Council states School 1 does not and has never had a minibus. It also notes that Mr Y was an independent traveller, and that free bus transport is available to all school age children in London. The Council suggests this may have been the reason transport support was refused as Mr Y would automatically have been eligible for free bus transport via Transport for London.

Analysis

15. In 2017, we published a focus report, 'All on board? Navigating school transport issues'. The report highlights the importance of councils providing clear and accurate information about school transport policies.
16. There is no record of Miss X formally applying for transport assistance. I consider this is likely to be due to officers advising her she would not receive any support and a lack of clarity regarding the availability of transport support.
17. The Council's transport policy in place at the time focuses on the travel assistance available for pupils with Special Education Needs (SEN). An Appendix to this document sets out the support available for pupils who do not have a statement of SEN. It notes that all young people aged 5- 16 are entitled to free travel from Transport for London (TFL) on London's buses and trams. Where it is not possible for a child to make the journey from home to school by these methods alone the Council may be able to offer assistance in the form of a travel card for travel on trains and the underground.
18. The Council's current published policy on home to school transport is entitled "Lambeth SEND Travel Assistance Policy 2019". This policy is also clearly aimed at pupils with SEND. It is not immediately apparent that it also provides details of assistance available to children who do not have SEN or a disability. Section three of the Council's policy sets out who is eligible for support, and again focuses on pupils with SEN or a disability. It does state:

"The law requires free transport to be provided for not only children with SEND, but all pupils of compulsory school age if their nearest suitable school is:

• Beyond 2 miles (if below the age of 8);
• Beyond 3 miles (if aged between 8 and 16)"
1. However, this is not a full explanation of the Council's duties, and the preceding and subsequent information is only relevant to pupils with SEN. I consider it likely that many parents of children who do not have SEN would give this policy only a cursory glance and assume the transport support was not available to them. This is clearly a concern and should be addressed as a matter of urgency.
2. It is also of concern that there appears to be a lack of understanding and clarity amongst some council officers regarding the Council's duties to provide transport support.
3. The Council advised Miss X that Mr Y had to attend School 1 as there were no alternative placements available. School 1 therefore appears to be a qualifying school. Mr Y was of compulsory school age, and as School 1 was over five miles from their home, it was outside the statutory walking distance. Mr Y therefore appears to meet the criteria for transport assistance. Yet the Council did not provide Miss X with any information regarding transport support when it enrolled Mr Y at School 1 and when Miss X asked about it, officers wrongly advised her the Council would not provide support.
4. I recognise that Miss X’s son was an independent traveller and that free bus transport would have been available. But given his particular circumstances I would have expected the Council to consider and properly advise Miss X on whether additional support was appropriate or necessary to ensure her son felt safe to travel to school. There is no evidence officers considered whether there were safeguarding or other discretionary reasons to offer Mr Y transport support.
5. The Council notes that the statutory guidance on home to school transport suggests councils consider issues such as canals, river, ditches, and speed of traffic when assessing whether a route to school is safe. Such issues are not generally a consideration in London and the Council considers the guidance should be updated to cover children at risk from exploitation and gang related issues.
6. The Council's states the misinformation in its complaint response is human error. Its response to Miss X's complaint is not only incorrect in terms of its duties under the Education Act 1996, but also suggests the Council has not properly considered Mr Y's circumstances. The Council's suggestion that transport support is not an option for mainstream pupils is both wrong and, as School 1 is not a mainstream school, not relevant to Mr Y.
7. I consider the Council's failure to properly advise Miss X on the availability of transport support and how to formally apply for this amounts to fault. The failure to have a clear and accurate published policy on transport support for children who do not have SEN or a disability is also fault.
8. Having identified fault I must consider whether this has caused Miss X a significant injustice. It is not possible to say that had the Council provided transport support Mr Y would have felt safer travelling to School 1 or that his attendance would have improved. However, it is clear that Miss X has experienced frustration and distress at the missed opportunity to assist her son in accessing education. She is also left with uncertainty as to whether subsequent events and actions would have occurred, including the Council's decision to prosecute her for non-attendance.
9. I consider it highly likely that Miss X is not the only person affected by the Council's policy and am concerned many others may not have realised they may have been eligible for support with school transport.

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Agreed action

28. The Council has agreed to:
• apologise to Miss X for the faults identified; and
• pay Miss X £100 to recognise of the distress and uncertainty she experienced as a result of the Council’s failure to correctly advise her of the availability of transport support for Mr Y
29. The Council should take this action within one month of the final decision on this complaint.
30. The Council has also agreed to
• Draft and publish a separate school transport policy setting out the eligibility criteria and process for those seeking school transport support for children who do not have SEN or a disability;
• provide reminders/ guidance to ensure staff are aware of the Council’s duties regarding home to school transport for children who do not have SEN or a disability and are able to access and provide and accurate information.
31. The Council should take this action within five months of the final decision on this complaint.

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Final decision

32. The Council's failure to properly advise Miss X on the availability of transport support and how to formally apply for this amounts to fault. This fault has caused Miss X an injustice.

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Investigator's decision on behalf of the Ombudsman