The Ombudsman's final decision
Summary: Mr and Mrs X complained the Council wrongly declined an appeal against its decision not to provide their child with travel support to school. They say the Council’s actions have negatively impacted their child and the family. We found fault by the Council and the Council has agreed to provide an apology and a financial remedy to Mr and Mrs X. It has also agreed to reconsider their application again via a new appeal.
The complaint
Mr and Mrs X complained the Council wrongly declined an appeal against its decision not to provide their child with travel support to school. They say the Council’s decision has negatively impacted their child and the family.
Mr and Mrs X also complained: The Council’s school transport department rarely responds to calls or emails; The appeal panel was not independent; The Council changed the appeal panel meeting from face-to-face to an online meeting; The Council relies on an online map application for distance checking; The Council wrongly said it carried out a risk assessment, and The Council referred to a process that does not appear in its transport assistance policy.
Mr and Mrs X say the Council’s actions have negatively impacted their child and the family.
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide: we could not add to any previous investigation by the organisation, or there is not enough evidence of fault to justify investigating, or further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6) 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)
What I have and have not investigated I have investigated the complaint referred to in paragraph one.
I have not investigated the complaints referred to in paragraph two because: the Council has not had the opportunity to investigate and respond to some parts of the complaint; the Council upheld other parts of the complaint and further investigation would not lead to a different outcome or add to the Council’s investigation, and there is not enough evidence of fault to justify investigating some other parts of the complaint.
How I considered this complaint
I discussed the complaint with Mr and Mrs X and considered the information they provided.
I made enquiries to the Council and considered the information it provided.
Mr and Mrs X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.
What I found
School travel arrangements 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, 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) If only one school is named in a young person’s Education, Health and Care (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.
A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied. Where the local authority determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraphs 47 to 52) Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. The statutory guidance recommends councils adopt the following appeals process: Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us.
(Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5) The Council’s All Age Travel Support Policy The Council’s policy reflects the two-stage appeals process as recommended by the statutory guidance.
The policy says the Council will provide transport assistance to children who live less than the statutory walking distance from school if: They are the subject of an EHC plan; The need for support is apparent from their EHC plan, and The child is attending the nearest qualifying school as named in the EHC plan.
Principles of good administrative practice In 2018 the Ombudsman published a guidance document setting out the standards we expect from bodies in jurisdiction “Principles of Good Administrative Practice”. This includes: Stating the criteria for decision making and giving reasons for decisions Keeping proper and appropriate records Explaining clearly the rationale for decisions and recording them
Background
Mr and Mrs X’s child, Child A, has an EHC plan and received travel support from the Council. Child A has a diagnosis of autism and attends a specialist school which is named in their EHC plan.
What happened This chronology includes key events in this case and does not cover everything that happened.
In mid-2023, the Council wrote to Mr and Mrs X regarding the travel support for Child A. It said Child A would be aged over eight years old at the beginning of the next academic year and may no longer be entitled to travel support. It said this was because the distance from home to school is under the minimum distance criteria for children aged eight and above. The Council asked Mr and Mrs X to provide relevant information if they believed Child A qualified for continued school travel support despite not meeting the distance criteria. The Council specified relevant information may include medical grounds.
Following information received from Mr and Mrs X, the Council declined their request for continued school travel support for Child A.
Mr and Mrs X appealed to the Council. They referred to Child A’s diagnosis and said routine is important to their emotional wellbeing. They said Child A had received travel support since starting at school and said the daily routine provided structure which is very important for them. Mr and Mrs X said Child A has no road sense and struggles to cope with busy roads due to sensory overload. They said the walking route to school included very busy roads. Mr and Mrs X said their other child, Child B, was due to attend a different school in September 2023 and it was not possible to take both children to separate schools safely and on time. Mr and Mrs X provided a letter from Child A’s paediatrician in support of their appeal.
The Council approved an application for travel support for Child B from September 2023.
Mr and Mrs X told the Council its decision not to provide travel support for Child A would cause significant difficulties. They said there may be no-one at home when Child B returned from school if Mrs X had to accompany Child A home from school. Mrs X also said she was due to start a new job and the lack of travel support for Child A meant she would be late for work each morning.
The Council issued its stage one appeal decision letter. The Council said it had considered all the available information but had upheld the original decision to refuse travel support for Child A.
Mr and Mrs X escalated their appeal to stage two. They repeated the importance of routine for Child A and said without this, Child A could become extremely distressed and violent. They said walking along the busy road was likely to cause a sensory overload for Child A which could cause unpredictable behaviour. Mr and Mrs X said Child A has no sense of danger and a sensory overload could cause Child A to run off. Mr and Mrs X also repeated the impact of the Council’s decision on Mrs X’s job and the different school finishing times.
Mr and Mrs X’s complaint Mr and Mrs X complained to the Council in September 2023 about the decision to decline travel support for Child A. They said the Council’s school transport department rarely responded to calls or emails, changed a face-to-face meeting to an online meeting and said the panel due to conduct the stage two appeal meeting was not independent.
Shortly after, Mr and Mrs X attended the Council’s online stage two appeal meeting.
Following the meeting, the Council provided its decision letter. It said the Council had assessed the application in line with its policy and established Child A did not meet the eligibility criteria. The Council said the distance from home to school was under the minimum distance criteria and the provision of free transport to school was not an efficient use of its resources. The Council said it had considered all written submissions but considered there were no exceptional circumstances or overwhelming evidence available. It said, on balance, it considered the evidence and comments provided by Mr and Mrs X did not justify making an exception to its policy.
Mr and Mrs X submitted a second complaint to the Council. They complained the appeal panel was biased, had no interest in what they had to say, and had no knowledge about children with special educational needs. Mr and Mrs X acknowledged the home to school distance was less than the minimum criteria but complained this had previously been the case when the Council had previously provided travel support.
The Council’s complaint response The Council responded to Mr and Mrs X’s complaints. It apologised for delays in the appeals process and said the panel was independent from the transport team. It explained the reason for changing the appeal meeting to an online meeting, and said it was satisfied it had reviewed all the evidence available. The Council explained how it identified the shortest walking route and said it did not uphold the complaint.
Mr and Mrs X remained dissatisfied with the Council’s response and brought their complaint to us.
Analysis Mr and Mrs X complained the Council wrongly declined an appeal against its decision not to provide Child A with travel support. In response to our enquiries, the Council said it reviews applications based on the eligibility criteria outlined in its policy, which it says aligns with government guidance. It said neither Child A nor Child B met the eligibility criteria regarding the distance from home to school, as Mr and Mrs X’s home is within three miles of both of the childrens’ schools. It says however, it acknowledged the difficulties faced by Mr and Mrs X in ensuring transportation for both children to separate schools, and made an exception to provide travel support for Child B.
The Council said it considered the walking route to school for Child A was safe, and as the distance from home to school was less than three miles, it declined the application in accordance with its policy. The Council said although it received letters of support from health professionals and a local Member of Parliament as part of the appeal process, it considered there were no exceptional circumstances to justify the panel upholding the appeal.
In response to our enquiries, the Council provided its stage one and stage two decision letters and the appeal panel’s minutes. The stage one decision letter says the Council considered the available information but upheld its decision to refuse the application for travel support. However, it does not give an explanation as to what information the Council considered, how it considered it, or why the Council decided the information provided by Mr and Mrs X did not justify continued travel support. In addition, the decision letter does not explain why the Council previously provided travel support when Child A was aged under eight, despite them living within the minimum distance criteria for that age group, but now considered the same distance meant it would no longer provide the same support.
The appeal panel’s minutes and the Council’s stage two decision letter do not demonstrate how the Council considered Mr and Mrs X’s grounds for appeal. They also do not explain why the Council considered the points raised by Mr and Mrs X did not constitute exceptional circumstances. The stage two decision letter says, ‘on balance’, the grounds for appeal did not justify making an exception to the policy; however, it does not explain why the Council considered the balance of evidence was not in Mr and Mrs X’s favour, and therefore, does not demonstrate the Council’s rationale for its decision.
The Council’s policy says the Council will provide travel support to children who live less than the statutory walking distance from school if they are the subject of an EHC plan, the need for support is apparent from the EHC plan, and the child is attending the nearest qualifying school as named in the EHC plan.
Child A has an EHC plan which names the school they attend. The EHC plan states Child A benefits from a structured routine; this was stated by Mr and Mrs X as part of their grounds for appeal, and was supported by the medical evidence provided. The appeal panel’s notes and the Council’s decision letters do not explain if or how the Council considered these points in relation to Child A’s EHC plan as part of the appeal process. The policy indicates the Council should have considered this matter as part of the application and appeal process.
The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. Based on the above, the Council’s decision letters are not in line with its travel support policy, as they do not set out what factors the Council conisdered, or the rationale for its decision. In addition, the appeal panel’s minutes do not record how the Council considered the medical evidence provided, or the relevance of Child A’s EHC plan in conjunction with the grounds for appeal. This is not in line with the principles of good administrative practice previously referred to. As a result, the Council is at fault regarding this matter.
Having identified fault, I must consider if this caused a significant injustice to Mr and Mrs X. The injustice caused by the fault identified is stress and uncertainty as to whether the Council adequately considered the grounds for appeal.
Agreed action
To address the injustice identified, the Council has agreed to take the following action within one month of the final decision: Provide an apology to Mr and Mrs X. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings, and Make a symbolic payment of £150 in recognition of the stress and uncertainty caused by the fault identified.
The Council has also agreed to take the additional following action within two months of the final decision; Reconsider Mr and Mrs X’s application for travel support via a new appeal, taking into account their grounds for appeal and supporting medical evidence, and the need for support as set out in Child A’s Education, Health and Care plan.
The Council should provide us with evidence it has complied with the above actions.
Final decision
I have found fault by the Council and the Council has agreed to take the above action to resolve the complaint. I have therefore concluded my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman