The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about her son’s home to school transport. This is because there is not enough evidence of fault by the Council.
The complaint
The complainant, whom I shall refer to as Miss X, complained about the home to school transport offered to her son (Y) who has Special Educational Needs (SEN). Y has an Education Health and Care Plan (EHCP). Miss X is unhappy the Council has changed the operator used to provide Y’s transport. Miss X wants the Council to use the operator which previously took Y to school. The Council has refused to consider her request through its appeals process.
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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe: it is unlikely we would find fault, or the fault has not caused injustice to the person who complained, or we cannot achieve the outcome someone wants, or it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended) We cannot question whether a council’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
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
Background
The Council has previously provided Y with free transport to school through a particular operator. Because of his age, Y changed schools, and the Council told Miss X a different operator would provide his transport. Miss X says Y needs continuity because of his SEN and previous problems with transport. She wants the Council to use the previous operator to provide Y’s transport.
The Council has responded to Miss X. It says because Y was transferring schools it was required put the contract out to tender as part of a procurement exercise. The new operator was successful in securing the contract. This means it cannot award the contract to the previous operator as it would be unlawful. The Council has said the operator is experienced. The Council has also allowed Y’s sibling to travel on the transport to help with the transition. The operator offered a meet and greet option before the start of term. The Council says it has an appeals process, but an appeal panel could not override the tender process. A panel could not therefore say the Council should use a particular operator.
Assessment Councils are required to operate an appeals procedure for parents who are unhappy with decisions taken about their child’s home to school transport. The Council does operate such a procedure.
Miss X is clearly concerned about the change of operator. But the only outcome she wants is for the Council to use the operator which previously took Y to school.
While I understand Miss X’s frustrations, as the Council has explained, an appeal panel would not be able to overrule the result of the procurement exercise. They could not say a different operator should be used. Because an appeal panel could not give Miss X the outcome she wants, I do not believe there is enough evidence of fault by the Council in refusing to progress her appeal. Also, because the appeal could not succeed, there can be no injustice to Miss X from the Council’s refusal to progress her request.
If, however, Miss X has concerns about the transport offered, which could be resolved by something other than reverting to the previous operator, she should put these to the Council. If unhappy with the Council’s decision, Miss X would then be able to access its appeals process. If Miss X was unhappy with the eventual outcome, she could make a fresh complaint to the Ombudsman.
Final decision
We will not investigate Miss X’s complaint because there is not enough evidence of fault.
Investigator's decision on behalf of the Ombudsman