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.
Lack of Openness and Transparency
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.