Summary: Mrs Z complains about the way the Council dealt with her application and appeal for help with school transport for her 15-year-old son, and with suspension of the Temporary Vacant Seat scheme. The Council was at fault in dealing with her application. It has agreed a suitable remedy. We stopped investigating the issue of the suspension of the scheme as it does not directly affect Mrs Z’s family now.

The complaint

1. Mrs Z complains about the way the Council dealt with her application and appeal for help with school transport for her 15-year-old son, and with suspension of the Temporary Vacant Seat scheme. She complains that the Council:
1. initially suspended the scheme because of COVID-19 but then continued to suspend it because contracted vehicles did not comply with rules on access for people with disabilities;
2. failed to communicate properly with her, including failing to explain the real reason for the continued suspension, failing to respond to emails, wrongly refusing her application and appeal for transport, and refusing to deal with her complaint;
3. has delayed in making a final decision on the scheme;
4. failed to prepare for the disabled access rules.
2. Mrs Z says this meant for 18 months her son has not had a seat on the bus that takes his sister to the same school. She says she has had to keep changing her working hours so she could drive him to school as they live in a rural area with no public transport and no suitable walking route to school. She says it has caused him anxiety not knowing how he would get to school. Although the Council has now agreed her son qualifies for transport and has offered to reimburse her expenses, she is worried about how he will get to school when he turns 16.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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, sections 26(1), 26A(1) and 34(3), as amended)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. I discussed the complaint with Mrs Z and considered the information she provided. I considered the information the Council provided in response to my enquiries. I spoke to the Council’s Head of Transport and Future Connectivity (‘Head of Transport Operations’) over the telephone to clarify some of the issues in the Council’s response. I considered relevant law, guidance and Council policy on home to school transport.
7. Mrs Z and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Home to school transport

8. 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) (Education Act 1996, section 508B(1) and Schedule 35B)
9. Under the Council’s ‘Home to School/College Travel Policy and Guidance’ transport may be provided to either the nearest suitable school or the catchment area school with places available, ‘as determined by the Authority’.
10. When considering which is the nearest suitable school the policy says the Council will check to see if a place would reasonably been available at the school for the pupil at the point when either:
• they moved address or school if they have moved school or address outside the usual admissions round; or
• the school place was offered for them to join the school for those who moved as part of the usual admissions round. The Council will assess the prospect of having gained a place at a nearer school by checking if the child would have qualified for a place because they would have had a higher priority than the last person offered a place at the school.
11. This process will apply for all transport applications, regardless of how long after the pupil started at the school the transport application is received. The fact that a parent chose to not apply for a place at that school, does not affect the process. If they would reasonably have been offered a place it will still be considered as the ‘nearest’. If a parent has rejected an offer of a place at any nearer school, it would still be considered as ‘suitable’.
12. The Council has a two-stage review and appeals process for challenging decisions about home to school transport. The first stage is a review by a senior officer and the second is an independent appeal panel.

Temporary Vacant Seat scheme and COVID-19

13. The Council also had a discretionary Temporary Vacant Seat (TVS) scheme for pupils not eligible for help with transport under the law or the Council’s policy. Where there were spare seats on a vehicle the Council had contracted for home to school transport, parents could apply for a seat and pay a fee.
14. In June 2020 the Council decided to suspend the vacant seats scheme from September 2020 in response to the COVID-19 pandemic. The Council decided that to comply with government guidance and minimise the risk of transmission of COVID-19, it had to reduce the numbers of passengers on home to school transport. It did this by offering transport only to pupils entitled to free transport, and so it suspended the vacant seats scheme.
15. The scheme remained suspended for the whole of the academic year 2020-2021. The Council reviewed the position again in August 2021 following a government announcement to end ‘bubbles’ and social distancing measures in schools. At that point the Council also took into account the impact of the Regulations discussed below.

Public Services Vehicle Accessibility Regulations

16. The Public Services Vehicle Accessibility Regulations 2000 (‘PSVAR’ or ‘the Regulations’) required all public service buses and coaches on local and scheduled routes carrying more than 22 passengers to be accessible to people with disabilities, including wheelchair users. The deadline for complying with the Regulations was 31 December 2019.
17. Until mid-2019 most local authorities understood the Regulations applied only to local and scheduled bus services where passengers paid a fare. In November 2019 the Department for Transport (‘DfT’) wrote to all councils confirming the Regulations also applied to home to school transport services where there was a mix of fare-paying and non-fare-paying passengers. However, it said it understood some school transport services were not in a position to provide compliant services. It therefore granted a limited exemption from the Regulations for services to give operators time to become compliant, which were later extended.
18. When the Council realised the Regulations would apply to mixed home to school transport vehicles, which were not all compliant, it decided to offer spare seats under the TVS scheme free of charge from September 2019. The seats remained free until the scheme was suspended in September 2020.
19. When the Council reviewed the TVS scheme in August 2021, it also considered the impact of PSVAR because the initial exemptions were due to expire in December 2021.
20. The review took place over the next few months, resulting in a decision in mid-December 2021 to end the TVS scheme. The Council found this would not impact on its ability to meet its statutory duty to provide free transport to pupils entitled to it.
21. At the same time the Council decided to take the following action:
• Look into the possibility of re-routing existing public bus routes to serve areas where pupils had lost out because of the impact of the Regulations.
• Review the decision and consider reinstating the scheme once there were significantly more coaches available across the County that meet the PSVAR requirements.

Mrs Z’s application for help with transport

22. Mrs Z applied for a place for her son, F, in Year 9 at School 1 from September 2019. School 1 is a middle school taking pupils from Years 9-13. F was offered a place. School 1 is over three miles from his home. In May 2019 Mrs Z applied online for free home to school transport. The Council refused, saying School 1 was not the catchment or nearest school with a place available. Mrs Z obtained a seat for him under the TVS scheme.
23. In June 2020 after finding out the Council had refused free transport to School 1 in error for her younger child, Mrs Z contacted the Council again to ask whether F was also entitled to free transport. She told the Council she had made enquiries at his nearest school, School 2, and been told there were no places available in F’s year group.
24. In July the Council replied saying F was not entitled to free transport. It said it had checked the records and found a place would have been available for F at School 2 when he started at School 1. So School 1 was not his nearest or catchment school with a place at the time.
25. Between July and September 2020 Mrs Z was in correspondence with the Council, asking for a review and appeal of the decision refusing transport and asking about the TVS scheme. She explained the difficulties of having two children travelling to the same school separately and having to change her working hours. She said she had to drive F to school every day, travelling behind the school bus his younger sister was on. She also asked for proof that School 2 had places available at the time F was allocated a place in Year 9 at School 1.
26. In September when Mrs Z asked for a review, she said the Council had previously told her F was not entitled to transport to School 1 as there were places available at School 2 at the normal point of entry in September 2019. However she said he was allocated a place in July 2019 for Year 9 and asked the Council to reassess her application.
27. In the course of its responses the Council said at different points:
• Mrs Z could appeal but the Council would not be offering seats to non-entitled pupils because of COVID-19 safety measures;
• this was about a non-entitled pupil and there was no appeal process for the TVS scheme;
• she could check the post-16 transport scheme;
• it now realised F was under 16, apologised, and said she could request a review.
28. In June 2021 Mrs Z started writing to the Council again explaining the difficulties she was having with home to school transport for F and having to change her working hours. Later she explained the temporary change in her working hours had come to an end and she did not know how F would be able to get to school. She also wrote to the Council again asking it to restore the TVS scheme so she could pay for a seat for F on the school bus as there was no public transport.
29. She asked for a stage 1 review, but the Council said as she appeared to be disagreeing with Council policy, the matter was outside the review and appeal process. She made a complaint but the Council said this would not change Council policy so it would not consider it.
30. She also had discussions with the Council about applying for a place at School 2 so he would be eligible for transport. She applied for a place but was refused.
31. She then applied for transport in early November but the Council refused again on the basis that F was not attending his nearest or catchment school. Mrs Z submitted another stage 1 review request. She asked why she had been advised she needed to get a transfer refusal in writing if it did not make any difference to her request for transport. She said School 2 had also told her that at F’s point of entry to School 1 in September 2019 School 2 was over its admission number and would not have been able to offer F a place. Mrs Z said she was desperate to find a solution.
32. After further correspondence the Council wrote to Mrs Z confirming F was entitled to free transport and the Council had refused in error when she enquired in July 2020. It said the decision was correct in 2019 under the policy at the time. The Council apologised for the mistake and said it would now offer F a seat on the transport. It also offered to reimburse her travel costs from September 2020, after the free TVS scheme ended.

Analysis

33. Mrs Z is one of several parents who complained to the Ombudsman about the suspension of the TVS scheme. In her case the Council has now confirmed F qualifies for free home to school transport and so the suspension of the scheme does not affect her or her son directly at the moment. I recognise she is concerned about what will happen when F moves into post-16 education when he may no longer qualify for transport as the same rules will not apply. However we do not know whether by then the TVS scheme will have been restored, or other alternatives such as a new bus route might be available as an option.
34. In these circumstances I do not consider it necessary to continue to investigate the issue of the TVS suspension in this case. The Ombudsman is still investigating it in other cases. So I do not need to make findings on the Council’s decision-making in relation to the TVS scheme here.
35. The Council has accepted it was at fault in the way it dealt with Mrs Z’s application for transport. It has apologised and offered to reimburse her transport costs from September 2020 when the TVS scheme was suspended. Before that Mrs Z benefited from the offer of a free seat on the bus. So in my view this is a suitable remedy for the unnecessary expenses Mrs Z incurred.
36. But it does not fully recognise the impact on Mrs Z of the failure to deal properly with her application since July 2020. She has experienced anxiety, distress and inconvenience because of having to make unnecessary alternative arrangements. Having to contemplate moving F to another school mid-year at an important time in his education has also caused unnecessary distress. Also, as the history of communications with the Council shows, she has had to put time and effort into pursuing the issue, including making repeated requests for reviews and appeals and applying for another school place.

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Agreed action

37. To remedy the injustice caused the Council has agreed to make the following payments to Mrs Z within one month of the final decision on this complaint:
• £250 to recognise her unnecessary distress, anxiety and inconvenience; and
• £250 to recognise the avoidable time and trouble involved in pursuing the matter.

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Final decision

38. I have found fault in the way the Council dealt with Mrs Z’s application for home to school transport. I am satisfied with the action the Council has agreed to take to remedy the injustice caused. I have therefore completed my investigation. I have decided not to investigate further the issue of the suspension of the TVS scheme as this does not directly affect Mrs Z’s family at the moment.

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Investigator's decision on behalf of the Ombudsman