The Ombudsman's final decision
Summary: there was fault by the Council in its consideration of Ms B’s application for home to school transport in March 2022. The Council will take the recommended action to remedy the injustice this caused in the form of wrongly raising her expectations and recognising she was denied the opportunity to have the matter properly considered.
The complaint
The complainant, whom I shall refer to as Ms B, complains about the Council’s handling of her request for home to school transport for her son, C, to attend the independent special needs school named on his EHC Plan. Specifically, Ms B complains that in 2022 the Council: failed to properly consider her application by failing to take account of the change in her circumstances including the stress the current arrangements cause C and the impact on her financial situation; and wrongly raised her hopes that her request would be re-considered when it completed a risk assessment with a view to providing a taxi around April 2022 but then issued a decision stating that agreement on transport was reached at the SEND Tribunal so would not be reviewed as a result of the new application.
Ms B says she was caused injustice as a result of having to use travel arrangements that do not meet C’s needs and which cause Ms B and C’s father financial and practical difficulties.
The Ombudsman’s role and powers
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) The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), 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 considered the written information Ms B provided with her complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on it.
Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
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
What should have happened A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section I details the name of the school the child will attend and Section J provides details of any direct payment that will be made. A council may use a direct payment to a parent to organise certain types of provision themselves. We cannot direct changes to the sections about education, or name a different school. Only the SEND Tribunal can do this.
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);and children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B) 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’.
‘Qualifying schools’ include an independent school for a child with special educational needs where the school is named in the EHC Plan or is the nearest of two or more schools named.
If only one school is named in a young person’s EHC Plan, 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.
The Home to School Travel and Transport Statutory Guidance (the Guidance) advises that children should not be expected to make several changes on public transport resulting in an unreasonably long journey time. It suggests a maximum each way journey of 45 minutes for primary school age children. It may be shorter for children with special needs. Arrangements should be safe and ‘reasonably stress free’.
Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55) Relevant background X is now eight years old. He has special needs and an EHC Plan. The Council issued an amended EHC Plan in December 2020 following Ms B’s appeal to the SEND Tribunal about the school named. The amended Plan names a single school in Section I. I will refer to this as School X. School X is an independent special needs school which is around 20 miles from the family’s home.
The Order issued by the SEND Tribunal in November 2020 confirms that School X would be named in Section I and that Ms B had agreed she would take C to School X with the help of an annual rail pass paid for by the Council The EHC Plan then issued duly states that C’s parents have “undertaken to transport C to (the school named in Section I)” for School X to the named school and that the Council will pay “…the costs of £1600 for the annual rail season tickets”. In fact the Council confirms the cost of the rail travel is around £1000 a year. Agreement was made that C’s father would drive him to school in the event of trains not running.
The journey to School X involves a walk at either end of the journey, a bus and a train. I assume Ms B was aware of the nature of the journey when she agreed to take C to and from School X in November 2020.
What happened In April 2021 Ms B applied to the Council for a change in these arrangements. In her application she said she needed assistance in the form of provision of a taxi for part of the route to School X as there were difficulties with public transport for this part of the route. The cost of this taxi would have been £60 per day. Ms B said she would only need this help until she passed her driving test hopefully later that year. The Council refused on the grounds that it was providing support as agreed at the Tribunal.
In July 2021 an appeal panel considered Ms B’s appeal against this decision. The panel did not uphold the appeal. In its decision the panel is noted to have reached this decision because: whilst the panel members noted the difficulties Ms B was having with the journey to school and back “…the Council agreed to your preferred school…expressly on the basis that you would transport him (C) (by train subject to the provision of annual rail season tickets). Additionally the panel said it took account of the fact that C’s father was currently taking X to school by car in the mornings; and it also considered whether there were grounds to provide discretionary financial assistance on the grounds of hardship in relation to family’s financial circumstances but decided there were no grounds to provide this.
In March 2022 Ms B contacted the Council again to say that her circumstances had changed. She says she was advised to submit a new transport application which she did.
In that application Ms B acknowledged that she had agreed at the final SEND Tribunal hearing in November 2020 that she and X’s father would transport C to school. However, she said that she considered the journey she had agreed to undertake was in fact too long and difficult for C and was causing him difficulties due to his particular special needs. She also said it was causing difficulty for the family due to their financial circumstances. This was because the full cost of the travel was not covered and the time it took Ms B to take C back and forth meant she was unable to work. She also said that C’s father’s work was affected when he drove C to school.
Ms B told me that the journey to X School by public transport can take up to 90 minutes in each direction and can be longer than this when there is a wait for a bus after school or between the bus and train.
The Council says that it accepts that the telephone conversation Ms B had with an officer in March 2022 “…could have been clearer and Ms B may have been given the impression that another application for transport would be successful”. The Council says it has apologised to the confusion caused and that it will be clear with parents in future about the correct process for appealing a decision when there has been a Tribunal or Panel decision reached. It says that Ms B’s application in March was mistakenly processed as a fresh application and, whilst the previous decision and appeal decision should have been taken into account, they were not. The Council says that at that time it did not have a system in place that could identify where a fresh application had already been subject to a Tribunal or Panel decision. It has now addressed this and has such a system in place. Instead Ms B’s application was considered under the usual criteria for transport and a risk assessment (to consider what type of transport was needed) was then completed. The Council says it was only when the request for transport was passed to that part of the Council responsible for putting transport in place that it was realised that a train pass was being already being provided and the reason for this.
Ms B complained in April 2022. The Council provided its response in June. The Council accepted that is staff had provided Ms B with misleading advice that she received about applying for transport in March and apologised for this. Ms B then complained to the Ombudsman.
The Council says that it considered a different school that was closer to the family’s home (just over 12 miles) was suitable. It put forward this school as the school to be named on the EHC Plan to the Tribunal. However, it accepts that it did not name this school on the EHC Plan. The Council does point out however, that Section J of the EHC Plan states that the only travel assistance sought by Ms B was the provision of annual rail season tickets and that the family agreed to transport C by train if it agreed to name the school on the EHC Plan. I accept this is the case and that it is clear in the Plan that Ms B had agreed to transport C with the aid of a rail pass.
The Council has accepted that in effect Ms B’s application in March 2022 was a new application based on the change in the family’s circumstances. It has agreed to reconsider the March application on that basis.
Was the Council at fault and did this cause injustice?
The Council agreed to name X School at a SEND Tribunal hearing in November 2020. The Tribunal included in its Order that the Council agreed to assist with transport by providing Ms B with a train pass to enable her to accompany C on the train trip which forms part of C’s journey to school. As I understand it this is what Ms B requested when she asked for X School to be named. As this was a matter considered and agreed by the Tribunal it is not a matter that I can further address. Since the Tribunal hearing however it seems clear that Ms B and C have begun to find the arrangements difficult to manage. Ms C asked the Council in March 2022 to consider making different transport arrangements for C on the grounds of changes in the family’s circumstances. The Council accepts that it has not yet considered the application on the grounds of the changed circumstances as it rejected the application in March on the basis that the arrangements in place were those agreed at the Tribunal. The failure to consider the changed circumstances amounts to fault.
This fault has caused Ms B and C injustice in the form of lost opportunity to have the changed circumstances properly considered. In addition, in mistakenly considering that application as a fresh application and indicating to Ms B that transport would be provided by arranging a risk assessment as a precursor to putting provision in place, Ms B’s expectations were wrongly raised.
Agreed action
When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states: for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred; and distress can include uncertainty, lost opportunity and raised expectations.
Within one moth of the date of the final decision on this complaint the Council will formally apologise in writing to Ms B for the identified fault. It will also pay her £250 to recognise the wrongly raised expectations and the lost opportunity to have the changed circumstances properly considered in March.
Within one month of the date of the final decision on this complaint the Council will also consider the application again. When doing so it will take into account: the fact that only one school is named in Section I on C’s EHC Plan and no arrangements have been made for C to attend a closer school (though the travel arrangements to School X are addressed elsewhere in the Plan); the relevant legislation and statutory guidance as it relates to C including that C appears to live outside the statutory distance limit for a child of his age and is attending the only school named on his EHC Plan. In addition, the statutory guidance suggests that suitable transport for an eligible child of C’s age should not include several changes of public transport or an unreasonably long journey time. It suggests 45 minutes is a reasonable time for C’s age but his current transport arrangements means he travels for around 90 minutes in each direction; and ensure that Ms B is advised of her right to appeal against any decision not to provide transport after this further consideration.
Within three months of the date of the final decision the Council should provide us with a copy of its revised procedures and guidance for staff with dealing with requests for transport where a decision on this has previously been provided by the SEND Tribunal or a Panel. This should include advice on dealing with such requests where the applicant has referred to a change in circumstances as a reason for a fresh application.
Final decision
There was fault by the Council in its consideration of Ms B’s application for home to school transport in March 2022. The Council will take the agreed action to remedy the injustice this caused.
Investigator's decision on behalf of the Ombudsman