Published February 1998
This is a report of an investigation by me under Section 4(2) of the Ombudsman Act, 1980 of a complaint against the Department of Education and Science concerning the provision of school transport for a child with disabilities. In order to protect the identity of those involved, the complainant's name is not given.
Kevin Murphy
Ombudsman
11 February 1998
A woman, (Mrs X) complained that the Department of Education and Science (DES) had made transport arrangements for her son which were unsatisfactory. Her son, Y, then aged six, was attending a special school and the problem began in September, 1994. The DES had arranged for Y, who is a child with disabilities, to be picked up by a bus 2.3 miles from his home. He would be set down at that point in the evening. The DES also offered an annual grant of £240, to be paid in arrears, towards the cost of private transport to and from the pick-up point.
Mrs X requested that the transport service be provided to and from her home. She was of the opinion that most, if not all, other children attending the school had such a service and that it was unfair not to provide the same service for her son. After the first few days she did not find it possible to continue with the service which had been provided for Y, because the arrangement was too difficult to manage. It involved waiting for the bus with her son at a point over two miles from their home, then lifting him, with his wheelchair and other equipment, onto the bus. At the same time, there were two other children in the family to be brought to a national school some three miles away from their home. Mrs X also contended that the grant offered toward the cost of private transport to and from the pick-up point was totally inadequate.
The DES said that the service offered was the best that could be arranged. Towards the end of her son's first year in school, in June 1995, Mrs X complained to my Office that she believed her son was not being treated fairly.
Y is a child with spina bifida and therefore a child with special needs. He uses a wheelchair and has a learning disability. The DES recommended him for placement at a special school nine miles from his home and he started there in September 1994. After the first week, his mother drove him there and back.
School transport for children with disabilities is provided by the DES on an administrative basis rather than on a legislative basis. There is no published scheme. In practice, all children who need special education and attend either special schools or special classes in mainstream schools are considered by the DES to be eligible for transport. In dealing with applications for transport for children requiring special education, the DES emphasises the fact that it operates the scheme within certain financial constraints. The DES arranges transport directly from the child's home to the school where this is feasible within those constraints.
Details of the DES transport grants for children are not published. The following is a statement outlining the "medical grants scheme" which is contained in a letter of 17 January 1996 from the DES to my Office:
"A grant towards the cost of private transport arrangements may be made by the Department where a pupil is severely medically handicapped and where it has been established by the Department that he/she cannot be facilitated on the normal network of school transport. The annual amount of the grant payable in such a case is determined by the distance from the pupil's home to their nearest appropriate school. Payment of the full grant is subject to satisfactory school attendance. Claims ... are made ... at the end of each school-year ...".
Following receipt of the complaint in June 1995, my Office asked the DES for its file together with a report on the case. The report stated that the parents of Y had requested a home pick-up/set-down service on a number of occasions. Each time, the DES investigated the possibility of providing such a service but found that it could not be justified due to the excessive cost involved. The DES stated that Y was "currently facilitated" with transport on a bus route from a pick-up/set-down point 2.3 miles from his home and that a service to and from his home could not be sanctioned due to the adverse effect this would have on existing services and the cost implications. The DES gave details of the disimprovement on one service in the area if an extension to the child's home were to be granted (the first pick-up times would have been too early for the other pupils involved). An extension of another bus route was costed at £33 - £35 per day, which was considered prohibitive. It was also stated that the provision of a taxi service to take Y to and from school was investigated but as this would cost approximately £20 per day it could not be sanctioned "due to financial constraints". The DES added that a grant of £240 per annum had been sanctioned. This was with a view to assisting the family with the cost of private transport to the pick-up point.
On request from my Office, Mrs X forwarded a quotation from a local taxi service, (quoting £20 a day as the cost of bringing Y to and from school) which was referred to the DES with a request that the possibility of obtaining Department of Finance sanction for this service be pursued. The DES's practice in relation to decisions on the provision of transport for children with disabilities was that the cost should not exceed £9.00 per child, per day on any service. The limit of £9.00 was never exceeded without special sanction from the Department of Finance.
In November 1995, the DES made a proposal to the Department of Finance to increase the transport grants. The proposal stated that the current scale of grants had been sanctioned in 1985, the maximum payable in any individual case being £600. The DES proposed a scale of increased grants (depending on distance to be travelled) with a new maximum of £2,000, stating that: "The Department is anxious that these rates are increased to a realistic level in order to afford such pupils the opportunity to exercise their constitutional right of access to education."
The DES also sought to reserve the right to seek sanction from the Department of Finance in the few cases in which the payment of a transport grant would not prove a realistic option.
In December 1995, the Department of Finance provided sanction to the DES for an increased scale of transport grants to a maximum of £1,500 stating, among other conditions, "There will be no exceptions to the scheme...".
The adequacy of the increased rates of the transport grant arose in relation to another complaint. That case was about an application for transport for a child with disabilities to attend a mainstream school. In March 1996, my Office wrote to the Secretary General of the DES about the case and noted that the increased rate of grant (£1,500 in that case) had been refused by the family as inadequate to fund the transport required. My Office noted that the grant appeared to be an arbitrary amount with no relation to the actual cost of providing transport and asked:
"that the method by which the grant is calculated be reviewed with a view to founding it on a rate per mile basis comparable to the mileage rates used by civil servants. The present system, whereby a maximum grant is paid regardless of distance to be travelled, is intrinsically inequitable."
The Secretary General of the DES replied on 26 April 1996 noting the request and stating that a review of the school transport scheme had recently been established by the Minister and that he would ensure that the Review Committee considered the points made by my Office.
The DES wrote in May 1996 in relation to the Y case to advise that the Department of Finance had responded to the request for sanction for extra monies for him by proposing that the DES consider the practicalities of introducing a scheme to cater for the case of Y and others like him. The DES pointed out that the School Transport Review Committeesymbol 42 \f "Symbol" \s 14 was expected to report in late summer or early autumn. The proposals referred to in the Department of Finance response were, according to the DES, being considered in conjunction with the Committee's review of transport arrangements. They hoped that this would lead to a range of measures to meet the requirements of cases such as that of Y.
I was not happy that adequate measures had been taken to address the adverse effect suffered by Y and on 19 July 1996 the DES was notified of my intention to investigate the case. In view of its involvement, a copy of the notification was also sent to the Department of Finance.
I obtained the files of both the DES and those of the Department of Finance concerning school transport issues. The DES's papers showed that the Department of Finance responded to the request for sanction for a taxi service for Y with a proposal that the DES give consideration to introducing a scheme to cater for children whose needs were not being met by the existing scheme. In a letter to the Department of Finance of 30 July 1996, the DES reiterated the difficulties faced by Y's parents in using the transport service on offer and stated that it was anxious that a formula be agreed to avoid the seeking of sanction for expenditure in individual cases in future. The DES expressed the view that the best way of dealing with these cases would be a delegated sanction which would allow it to settle individual cases below a specified sum. The Department of Finance replied on 12 August 1996 seeking more detail and stating that any proposed solution would need to be well thought out and transparent.
The Department of Finance papers revealed details of cases in which sanction had been granted for expenditure in excess of the norm, either to provide bus services for children with disabilities or, in some cases, taxi services. Sanction was granted in all cases as an exceptional measure and the circumstances of each case as outlined in the papers indicated that the cases in question merited the sanction given.
My investigators interviewed a number of officials in the DES and in the Department of Finance. DES officials explained during the course of the interviews with them that the "financial constraint" which applied to decisions on the provision of transport for children with disabilities was that the cost should be no greater than an average of £9.00 per child, per day on any service. The limit of £9.00 was never exceeded without special sanction from the Department of Finance. There was no information available on how the figure of £9.00 came to be established. It was also stated that the cases in which a transport grant was not accepted were rare, but where the grant offered was rejected and transport was not feasible, permission might be sought to fund transport costing over £9.00 a day.
I would like to acknowledge the assistance and full co-operation of these officials, and of both Departments, in the course of this investigation. In addition, in compliance with the Ombudsman Act, 1980, relevant extracts from the investigation report in its draft form were sent to a number of the persons interviewed. Representations received have been considered and reflected in the report as deemed appropriate.
The draft investigation report was sent to the Secretary General of the DES and to the Secretary General of the Department of Finance. The final comments received by them were included as appendices to the original report but have been omitted from this published report to preserve the anonymity of the people involved.
During the course of my investigation, I was notified by the DES in October 1996 that, following a review of transport arrangements, a mini-bus service could be provided for Y from 0.5 miles away from his home. The service was eventually organised to pick Y up at a junction some 200 yards from his home and he has been able to use this service since 25 November 1996.
There is no statutory obligation on the DES to provide school transport to any child. However, the State is obliged to provide for free primary education and in accordance with the majority judgement of Crowley v. Ireland (1980) that obligation encompasses the provision of means of transport to the school if this is necessary to avoid hardship.
The DES attempted to provide Y with transport to his school from as close to his home as possible when the application was first made on his behalf. It would appear to be the case that the DES accepted that he was fully eligible for the service. The question of whether the transport was required in order to avoid hardship to the child was not pursued by the DES, presumably because the failure to provide transport, or even the provision of transport at a point 2.3 miles from the home, would clearly involve hardship to a child with with special needs such as Y. The DES does not take the means of the child's family into account when considering entitlement to transport; therefore I have not examined this aspect in my investigation.
I am of the opinion that the DES, both by its attempts to provide the transport in the early stages of the application and the eventual provision of transport, has acknowledged its obligation to provide transport from as close to Y's home as possible.
Mrs X contended that the offer of service from 2.3 miles away was unfair in that other children were provided with service from their homes. She believed that Y should be offered the same service.
It is clear that the DES attempts to provide children with disabilities with transport service from their homes. It attempted to provide such a service for Y when his mother first applied. Many children, both with disabilities and without them, are in fact provided with service from their homes. A taxi service is used for children with disabilities but only where this is regarded as economically viable.
The only children attending special schools who are refused service (either refused service altogether or provided with a service some distance from their homes) are those whose individual circumstances are such that the service cannot be provided within the economic parameters set by the DES. While I can understand the concerns of the DES and of the Department of Finance to avoid open-ended costs, the question I have to ask myself is whether the refusal to provide the cost of a taxi service to Y was "improperly discriminatory" (Section 4(2)(b)(v) of the Ombudsman Act, 1980).
Given that many of Y's fellow pupils have transport service from their homes (a fact established during the investigation), and that such a service is provided to a large number of children around the country, his mother's complaint that he was treated unfairly seemed to me to be well-grounded. I recognise, of course, that Y is the only child with disabilities in his particular area and, because of this, the cost of providing the same service as his fellow pupils receive is much higher. But I find it difficult to accept that Y should be penalised for this and especially by reference to financial parameters which seem to be quite arbitrary.
The school transport scheme, I believe, must address the problem presented by children with special needs living in isolated areas or at a distance from the school they need to attend. The special school services are expanding. The transport service to these schools must be extended to meet the needs of their pupils within financial constraints which take account of the actual travel costs by road. Hence my earlier suggestion of a link with civil service mileage rates.
The principal reason why Y was refused transport service from his home was that the DES could not arrange it within the expenditure limit of £9.00 per day. The basis for the figure is unclear and a degree of uncertainty seems to surround both its origin and the method by which it may be increased with the sanction of the Department of Finance. The uncertainty concerning this element of the scheme is unfortunate given that it is a central factor in deciding whether a child with disabilities may be provided with transport.
While it is possible to transport children in groups for much less than an average of £9.00 each per day, difficulties arise when children such as Y live in isolated areas where there are no others, or very few, nearby seeking transport to their school.
I consider that it is unfair that the transport scheme does not make explicit provision for exceptional cases. It is also contrary to fair and sound administration that the scheme is unpublished and that the basis on which entitlement to transport is established is not regulated by rules which are open and transparent.
The procedures for dealing with cases which could not be provided with transport within the £9.00 limit are similarly ill-defined. It appears to me, from my detailed investigation of the matter, that it had become the practice in the DES to seek sanction from the Department of Finance for expenditure in some, but not all, cases where the cost of transport would exceed the £9.00 limit. However, there are no guidelines or rules laid down for the type of cases dealt with in this way. This is a situation which is intrinsically unfair and discriminatory as it allows for the possibility that children in similar situations will be treated differently - for the few cases which were granted transport at a cost outside the normal parameters in the last few years, there are others who have been denied service or provided with a service which is less than satisfactory to them.
I agree that the Department of Finance had reason for concern once requests for sanction of expenditure on individual cases became so frequent that the cases could no longer be considered exceptional. However, once this started to occur, it was a clear signal of more fundamental defects in the scheme. Furthermore, I do not believe it was fair of that Department to seek to cut off that avenue of approach in transport cases before it had been replaced by a more satisfactory scheme. Although the procedure was essentially an "ad hoc" approach, it did have the merit of providing transport to children whom the DES had determined were both eligible and in need of transport.
The Department of Finance's sanction to increase the transport grant levels made very little difference to those families whose requirements were for a transport service rather than funds. Unless the Departments of Finance and Education and Science are willing to provide grants in the form of mileage rates which relate to the actual cost of travel, the transport scheme will continue to be, in real terms, a scheme which benefits only those children who can travel in economically viable groups or who live close to their schools. The scheme is not working for children who must travel alone, or for long distances with only a few others. This is a situation which is discriminatory and should, I believe, be rectified.
The transport service offered to Y in September 1994 did not meet his needs and even if they had availed of it, it would not have alleviated hardship to the child and his family.
It was unfair not to provide Y with transport from as close as possible to his home from September 1994.
The DES delayed unduly in arriving at a solution to the case.
The transport grant system, (the so-called "medical grants scheme"), is inadequate to avoid hardship in the case of particular children who require transport to school because the grants bear no relationship to actual travel costs by road and there is no provision to allow the particular circumstances of individual cases to be considered on their merits.
In particular, the school transport scheme for children with special needs makes no provision for special consideration of children, like Y, who live in isolated areas and may result in improper discrimination against them.
The school transport scheme, as it applies to children with special needs, cannot be considered to meet the requirements of fair and sound administration. This is because it is both undocumented and unpublished and therefore can lead to an inconsistent approach to individual cases.
Note As already indicated at paragraph 4.4 above, both the Departments of Finance and Education and Science responded by letter to my draft report and findings. The DES emphasised the resources and staffing constraints under which the Special Education Section operated at the time and the steps which have or are being taken to deal with those constraints. The Department of Finance outlined a number of improvements made since 2 January 1997 to the "medical grants scheme" and to the arrangements for dealing with medical grant recipients. These included giving the DES the flexibility to pay up to 50p per mile in special cases and the issue of an information pamphlet to all recipients which would, inter alia, identify the circumstances in which the DES might consider applications for additional assistance. Approval was given to spend up to an additional £120,000 per annum in connection with these arrangements.
Compensation be paid to Mrs X for the period 1 September 1994 to 22 November 1996 for the hardship caused as a result of the inadequate transport service offered to her son Y. This compensation should be calculated at the rate of £20 per school day and is based on what a taxi service would have cost.
The Department of Education and Science devise and publish a school transport scheme for children with special needs; this published scheme should include details of the scheme of transport grants (the "medical grants scheme").
Cases involving exceptional circumstances not catered for in the general scheme be dealt with on their merits and not by reference to arbitrary restrictions. The delegated authority given by the Department of Finance to the Department of Education and Science to pay up to 50p per mile in special cases (and an additional £120,000 per annum) should be reviewed from time to time to reflect the actual costs of travel by road, e.g. by means of a link with civil service mileage rates or other measure of travel costs.
The published school transport scheme for children with special needs should include:
The Secretary General of the Department of Education and Science accepted my recommendations and said they would be implemented without delay, subject to the sanction of the Department of Finance, where this is required. The Secretary General of the Department of Finance also accepted my recommendations.