Summary: Mr and Mrs X complained about the Council’s decision to suspend its vacant seat scheme on home to school transport during the COVID-19 pandemic. This means they have to transport their son to school. We find that the Council was not at fault in how it reached its decision. It acted in line with Government advice and guidance.

The complaint

1. Mr and Mrs X complained that the Council has unfairly withdrawn its vacant seat scheme on home to school transport from September 2020. The Council says this is a temporary measure to reduce risks during the COVID-19 pandemic, but Mr and Mrs X believe it was not justified under Government guidance. They say allowing their son to continue to travel on the transport would not have a significant impact. Instead they now have to take him to and from school.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. If we are satisfied with a council’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)

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How I considered this complaint

4. I discussed the complaint with Mrs X and considered the information she and Mr X provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and guidance on home to school transport. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published ‘Good Administrative Practice during the response to COVID-19’.

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What I found

Local authority school transport duty

6. Under the Education Act 1996 councils must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ in their area to attend school in certain circumstances defined in law. Councils also have discretion under the Act to offer transport in other circumstance to help ensure the child attends school.

Council’s temporary vacant seat scheme

7. The Council has a temporary vacant seats scheme for offering spare seats on school transport. Where the Council has hired a vehicle for school transport and there are more seats than it needs for pupils entitled to free or subsidised transport, parents may apply for a spare seat. The Council’s policy and the information on its website about the scheme advise:
• there is a limited number of seats on this scheme and the Council cannot guarantee a place;
• parents have to apply for a place each year;
• there is no statutory requirement to offer a seat;
• if the Council needs the seat for a pupil entitled to free transport or if the service is discontinued, the Council will withdraw the temporary vacant seat, which may be at short notice;
• if a seat is not available, the parents remain responsible for arranging and funding their child’s travel to school.

Home to school transport under COVID-19

Government guidance

8. Schools closed to most pupils under the first national lockdown in March 2020. Some year groups were allowed back to school in June. There was a full return to school in September 2020 when attendance became compulsory again.
9. The Government issued guidance for transport operators in May 2020 on operating safe travel systems, including implementing social distancing rules.
10. The Department of Transport wrote to local authorities in July 2020 to help them prepare transport arrangements for when schools and colleges re-opened fully. It sent them details of a ‘Travel Demand Management toolkit’. This was to help councils understand the likely demands on local transport and identify changes needed to allow them to provide transport safely.
11. Guidance issued in August 2020 ‘Transport to school and other places of education: autumn term 2020’ advised councils on how to manage capacity and demand from September. It included suggestions for measures such as staggering school start and finish times, temporarily designating some public bus services as school or college only services, and contracting extra vehicles if necessary.
12. It also provided guidance on how to provide dedicated school transport safely. It noted that social distancing guidelines in place for public transport were not compulsory for dedicated school transport. But it said:

“those involved in the provision of home to school transport must do all that is reasonably practicable to maximise social distancing where possible and minimise the risk of transmission.”

13. They should also minimise mixing between children in different ‘bubbles’.

Council’s response

14. The Council decided to suspend the temporary vacant seats scheme across the County in May 2020. The decision was taken by the Cabinet members with responsibility for home to school transport. The Council agreed a report would go to Informal Cabinet on 24 June 2020 outlining the planned approach to home to school transport from September.
15. The Council wrote to the three hundred or so parents and carers affected on 10 June. It said it was suspending the vacant seats scheme because of the COVID-19 pandemic and current Government guidance on shared transport. It said “to ensure we can maintain transport for entitled pupils, and adhere to the social distancing guidance, … we will only be able to operate routes with a greatly reduced capacity, in the region of 25% of the usual provision”. This meant there would be no capacity on the vehicles it used to offer any seats under the scheme. Therefore it would not be processing current applications for September. The Council said it hoped writing now would give parents enough time to make alternative arrangements for transport for September.
16. The Informal Cabinet meeting in June 2020 considered the Council’s report on proposed travel planning. It endorsed the decision to temporarily suspend the vacant seat scheme.
17. The Council met virtually with headteachers and school staff, local bus operators traffic management and highways teams and staff from its education department. It developed a Traffic Demand Management programme. The plan identified key locations across the County that needed increased transport capacity. The Council contracted extra vehicles and routes and redesignated some local bus services as school transport networks.

What happened

18. Mr and Mrs X’s son, Y, attends school in the Council’s area. The family live in the area of a neighbouring council, Council 2. For the 2019-2020 school year Y had a place on a school bus provided by the Council under the vacant seat scheme.
19. When Mr and Mrs X received the email from the Council on 10 June about the suspension of the vacant seat scheme they replied the same day. They asked whether, if the Council was having to lay on extra buses to reduce capacity on a vehicle to 25%, there might be space for Y. They said they hoped the Council would not be using the emergency situation to close the vacant seat scheme permanently.
20. The Council responded a few days later saying it would not be possible to reply to individual queries because of the demands of the pandemic. But it reminded them under the terms and conditions of the vacant seat scheme the Council could withdraw the place if necessary at short notice. It advised Mr and Mrs X to consider alternative transport arrangements for September.
21. Mr and Mrs X continued their correspondence with the Council over the summer and also made a Freedom of Information (FOI) request. From this they learned that the bus on the route Y usually used had 57 seats, with 54 occupied from September.
22. Mr and Mrs X made a complaint to the Council about the decision to suspend the vacant seats scheme. They took the complaint through the two stages of the Council’s complaints procedure. They complained that the information from the FOI request contradicted the reasoning the Council gave to families for suspending the scheme. They argued that the Council had not reduced places on the vehicle to the level claimed. They also complained that the Council had used COVID-19 as an excuse to suspend the scheme. They wanted the Council to reinstate it.
23. The Council did not uphold the complaint. It considered the decision to suspend the scheme in order to generate spare vehicle capacity for pupils legally entitled to free home to school transport was correct and in line with Government guidance. It advised it was the responsibility of parents to ensure their child attends school. It suggested Mr and Mrs X contact Council 2 if they wished to apply for help with transport.
24. Mr and Mrs X complained to the Ombudsman. They said they believed the real reason behind the Council’s decision to suspend the scheme was a reaction to a court decision in 2019 which meant the Council could not charge for discretionary transport unless vehicles complied with the Disability Discrimination Act. In their view the Council was going to suspend the vacant seat scheme anyway as it could not bring in extra income. They feel it was using COVID-19 restrictions as an excuse.

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Analysis – was there fault causing injustice?

25. The Council has a duty to arrange home to school transport in certain circumstances to pupils in its area. It does not have to provide transport for Mr and Mrs X’s child as the family live in another council area. If Y is not eligible for free home to school transport from Council 2, Mr and Mrs X are responsible as parents for ensuring he gets to school. They had the benefit of the Council’s vacant seat scheme. But this is discretionary and the Council may withdraw the place if it needs to. The Ombudsman cannot question the Council’s decision unless there is evidence of fault in the way it reached the decision. I have considered the Council’s decision-making.
26. During the COVID-19 pandemic the Council still had a duty to provide transport to those pupils who were legally entitled to it. At the same time the Council had to manage the demands of providing transport safely under national COVID-19 restrictions, including social distancing measures. The Government advised those involved in providing transport, including councils, to do all they reasonably could to maximise social distancing.
27. There is evidence to support the Council’s position that it suspended the vacant seat scheme to allow greater capacity to provide home to school transport for pupils entitled by law to receive it while putting safety measures in place. The report to the Informal Cabinet meeting in June 2020 noted that the pandemic and guidelines on social distancing presented “a significant challenge to transport operations.” It said vehicle capacity reduced to around 25% with two metre distancing and to 50% with one metre distancing. It said “as a first step to releasing capacity, in agreement with the two home to school transport portfolio holders, the vacant seat scheme has been suspended on a temporary basis and each of the c300 parents that applied for a seat have been advised”. The report noted that the transport arrangements at that time generally followed the two metre social distancing rule. However it advised that when schools re-opened, the Council would need to plan for further increased capacity to accommodate around 8000 pupils it had a duty to provide transport for. The report set out a range of matters to be considered and options for increasing capacity on transport.
28. The information I have seen shows the Council followed Government guidance on using the Travel Demand Management toolkit to manage demand and capacity on school transport services while adhering to COVID-19 guidelines. It expanded provision and says this created 1200 extra places for those eligible for free transport. Suspending the vacant seat scheme freed up a significant number of seats and so contributed to increasing capacity.
29. The Council is entitled to focus its services on those it had a legal duty to provide transport for. It has confirmed it will keep the decision to suspend the vacant seats scheme under review, based on information about the development of the pandemic. Mr and Mrs X believe the pandemic is not the real reason behind the decision; rather they say it a response to a legal ruling in 2019. However, looking at the report to the Informal Cabinet meeting there is no evidence the ruling they refer to was a consideration. The report was comprehensive and detailed. It involved consideration of a range of factors as outlined in Government guidance but did not mention the ruling. Based on the evidence I have seen I am satisfied the decision was part of a legitimate response to the need to follow safety measures due to the COVID-19 emergency. I consider the Council followed Government guidance in managing its transport provision.
30. I recognise it is frustrating for Mrs and Mrs X that this has resulted in a situation where a bus with three vacant seats travels from their area to Y’s school while they have to provide their own transport. But as I have not seen evidence of fault in the way the Council reached its decision to suspend the vacant seat scheme I cannot criticise the decision itself.

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Final decision

31. I find that the Council was not at fault in reaching its decision to suspend its discretionary temporary vacant seats scheme. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman