The Ombudsman's final decision
Summary: There was fault by the Council in failing to follow its home to school transport policy for appeals. This denied Ms X the opportunity to have her case considered by an independent panel. This caused uncertainty, as to whether the outcome may have been different, inconvenience and delay.
The complaint
Ms X complains the Council has not provided suitable travel arrangements to her child under its home to school transport duty and not properly considered her concerns about the transport offered.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have considered information provided by Ms X and the Council including the Council’s home to school transport policy.
I have considered relevant law and guidance including: Education Act 1996 (‘The Act’) Department for Education ‘Home to School Transport Guidance’ (‘The Guidance’).
Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
Factual background Ms X complains the travel arrangements provided by the Council are unsuitable and inconsistent and have caused anxiety to her child meaning they arrive at school unfit to learn and sometimes refuse to use the transport provided. Ms X says she has to escort her child due to their anxiety. When her chid arrives at school they are agitated and take time to calm down before they can access learning. Ms X also says the route is too long, with additional pick-ups and drop-offs which extends the time her child must spend in the taxi and causes distress.
The Council’s home to school transport policy sets out that parents may appeal about the transport arrangements offered. Stage one of the appeal will be considered by a senior officer and stage two by an independent panel of three Council Members.
Ms X’s concerns about transport were not dealt with via the appeal route, but under the Council’s complaint procedure, so Ms X was not offered a stage two panel but had a stage two response from a senior officer in March 2022.
After the complaint response Ms X submitted medical evidence from mental health services supporting her concerns. This did not prompt a review of the decision.
During this investigation Ms X notified me there had been a recent incident when her child had absconded to avoid getting into the taxi provided. Her child was missing for 45 minutes during which time they injured themselves and the incident required paramedic and police involvement.
I contacted the Council to check whether the events meant it would be reconsidering the transport arrangements. It responded to Ms X that she could submit a stage one appeal as she may have new evidence to share. The Council also says while eligibility for transport has been approved until July 2023, a passenger escort has only been approved until July 2022 and Ms X must reapply for an escort.
Analysis Section 508B of The Act deals with the duty on councils to make such travel arrangements as they consider necessary to facilitate attendance at school for eligible children. Schedule 35B defines eligible children. There is no dispute between Ms X and the Council the child is ‘eligible’ for transport.
Paragraphs 34-25 of The Guidance provide advice on suitability of arrangements. It says for arrangements to be suitable they must also be safe and reasonably stress free to enable the child to arrive at school ready for a day of study.
Annex 2 of The Guidance sets out a recommended appeal procedure where a parent wishes to challenge a decision on eligibility or the transport arrangements offered. This recommends a stage one review by a senior officer and a stage two review by an independent panel.
The Council’s policy complies with the Guidance as it follows the recommended appeal procedure. However, the Council did not follow the Guidance or its own policy in Ms X’s case. This is fault. Ms X’s challenge to the travel arrangements was wrongly put through the complaint procedure not the appeal process. This denied Ms X an opportunity to put her case to an independent panel.
The Ombudsman cannot decide whether the transport arrangements are suitable, only the Council can decide this.
The Council now says Ms X can make a stage one appeal as she may have new evidence to share. The Council could just carry out a reconsideration before providing new appeal rights if there is new evidence, but I am satisfied that a new stage one and stage two appeal will provide Ms X with an opportunity to put her concerns and remedy the injustice caused.
Agreed action
The Council has confirmed Ms X’s case will be reconsidered via its transport appeal process. A stage one appeal (officer review) and stage two appeal (panel review) must both be provided in line with the timescales in the Council’s policy.
Within four weeks of my final decision: The Council will pay Ms X £250 for her time and trouble pursuing a complaint to the Ombudsman and for the uncertainty of whether, if a stage two appeal panel had been offered earlier, her challenge to the transport arrangements may have been successful.
The Council apologise to Ms X for failing to use the correct appeal process in March 2022.
Final decision
I have completed my investigation. There was fault by the Council in failing to follow its home to school transport policy for appeals when it received a challenge to the transport arrangements offered. This denied Ms X the opportunity to have her case considered by an independent panel. This caused uncertainty, as to whether the outcome may have been different, inconvenience and delay.
Investigator's decision on behalf of the Ombudsman