Summary: Miss Y complains about the Council’s decision to suspend its Temporary Vacant Seat scheme on home to school transport and the way it communicated with her. We find the Council was not at fault in the way it reached its decision to suspend and then end the scheme. But it failed to consider Miss Y’s request for post-16 transport for her daughter properly and consider whether it was necessary to offer help with transport. This meant she lost the opportunity to have her individual circumstances considered. The Council has agreed to review its decision on the application and review its post-16 transport policy. This is a suitable remedy.

The complaint

1. Miss Y complains about the way the Council has dealt with suspension of its Vacant Seat Scheme on school transport. 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 and failing to respond to emails;
3. has delayed in making a final decision on the scheme;
4. failed to prepare for the disabled access rules.
2. This means that since her son, E, joined the sixth form she has not been able to buy a vacant seat on the school bus that goes from her village to his school. Miss Y says she lives in a rural area with no public transport and no suitable walking route to school. Because of the hours she and her husband work she says this has caused great difficulty in getting E to and from school. The changing arrangements have also caused anxiety for her son, who is autistic. She would like the Council to offer a solution that would allow her son to travel on the school bus.

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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 Miss Y 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. Miss Y 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 for pupils of sixth form age

8. Councils have a duty under the Education Act 1996 to provide free home to school transport for certain groups of children of compulsory school age. For pupils of sixth form age, councils must publish a statement setting out the arrangements for provision of transport they consider it necessary to make to help pupils attend education or training, and the financial help available. (Education Act 1996, section 509AA)
9. Councils have discretion in setting their arrangements, as long as the statement includes provision for pupils with special educational needs and disabilities. But statutory guidance 'Post-16 transport and travel support to education and training' says councils must take account of various factors including:
• the needs of those for whom it would not be reasonably practicable to access education or training if no arrangements were made (including those living in particularly rural areas where the transport infrastructure can be more limited).
10. The guidance says the overall intention of the sixth form transport duty is to ensure learners can access education and training of their choice. It says if support for access is requested, this will be “assessed and provided where necessary”. Councils must “exercise their power to provide transport or financial support reasonably, taking into account all relevant matters”.

Council’s policy on post-16 home to school transport

11. The Council’s ‘Post-16 Transport Policy Statement’ says it sets out the support the Council considers necessary to facilitate the attendance of Post 16 learners receiving education or training.
12. The policy sets out various bursaries and public transport discount schemes available in the area. The Council also offers travel assistance to post 16 students from low-income families and those with special educational needs and disabilities needing specialist travel assistance in certain circumstances. In all cases students must meet the following conditions, among others:
• The young person is attending their catchment or nearest school or college with places available for the course they wish to study.
• The school or college is between 3 and 15 miles away from home by the shortest driving route.
• They pay a set fee as a contribution towards either a public transport pass or a seat, if available, on an existing contracted transport route.

Home to school transport appeals

13. The Council has a two-stage review and appeals process for challenging decisions about home to school transport, including about eligibility under the post-16 travel scheme.
14. The process is as follows:
• Stage 1 – review by a senior officer. The officer will consider whether the law and policy has been properly applied and consider any exceptional circumstances outlined.
• Stage 2 – independent appeal panel. Parents may attend the panel to make verbal representations if they wish.
15. At each stage the decision letter should include details of what information, evidence and factors were considered. It should explain the rationale for the decision.

Temporary Vacant Seat scheme and COVID-19

16. 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. Under the scheme there was a limited number of seats available, parents had to apply each year, there was no guarantee there would be a seat available, and the Council could withdraw a place if it was needed for a pupil entitled to free transport. There was no right of appeal about the temporary vacant seat scheme under the Council’s transport policy.
17. In June 2020 the Council decided to suspend the vacant seats scheme from September 2020 in response to the COVID-19 pandemic. Schools had closed to most pupils in March 2020 in the first national lockdown. There was a partial return to school in June and a full return in September. During this period the government issued guidance to councils on operating safe travel systems, including implementing social distancing rules. 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.
18. In preparation for the re-opening of schools in September 2020, the Council considered government school transport guidance issued in August. Social distancing rules were no longer compulsory for dedicated school transport vehicles. But the guidance advised councils they must do “all that is reasonably practicable to maximise social distancing where possible and minimise the risk of transmission”. The Council confirmed its decision to suspend the vacant seat scheme.
19. The Council wrote to parents in June 2020 informing them of the suspension of the vacant seat scheme. It explained that as a result of COVID-19 safety measures it had to reduce capacity on transport vehicles and would only be able to offer transport to pupils entitled to free transport. The email contained a link to the information about the suspension on the Council’s website. The Council said it would notify parents if it was able to reinstate the scheme in future. It advised them to check the website for updates.
20. 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

21. 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.
22. The Regulations do not apply to vehicles hired for commercial use, such as holidays, or to home to school transport vehicles carrying eligible pupils only, with no paying fare-passengers.
23. Until mid-2019 most local authorities understood the Regulations applied only to local and scheduled bus services where passengers paid a fare. During the summer there were discussions with the government to clarify the position. 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 and would stop providing mixed services when the Regulations came into effect. It therefore granted a limited exemption from the Regulations for services where no more than 20% of the passengers were fare paying, in order to allow operators time to become compliant. The exemption was due to expire on 31 December 2021.
24. In July 2021 the DfT announced operators could apply for extended exemptions for home to school transport services up to the end of March 2022. The exemptions would be available to operators who could demonstrate the steps they were taking to comply with the Regulations. In December 2021 the DfT further extended the exemption to 31 July 2022 for operators with existing exemptions.

What happened

Council’s response to PSVAR and suspension of the TVS scheme

25. In the summer of 2019 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 free of charge until further notice.
26. The Council applied for the two-year exemptions to the Regulations when they became available in November 2019. It agreed to extend the free vacant seat scheme while it applied for the exemptions.
27. In June 2020 the Council suspended the scheme from September, as described above, in response to the COVID-19 pandemic. The Council continued to review the position.
28. When it reviewed the TVS scheme in August 2021, it also considered the impact of PSVAR because the exemptions were due to expire in December 2021. The Transport Team reported on surveys and research carried out with coach operators. It found there was a shortage of PSVAR compliant vehicles on the market locally and nationally and that full compliance was likely to take between three and seven years. The Council considered a range of options as follows.
• Withdrawing the TVS scheme immediately.
• Keeping the scheme suspended while it carried out a ‘short engagement exercise’ with interested parties.
• Various options for reinstating the scheme and selling seats on PSVAR complaint vehicles only, while asking operators to apply for further exemptions in the meantime.
29. The Council considered the pros and cons of each option. It decided to continue the suspension of the TVS scheme while it conducted a public ‘engagement exercise’ or survey to help it to decide on the future of the scheme. It decided it would not reinstate the scheme unless it could identify a ‘legal and fair solution’ that could be applied equally across the County.
30. The Council updated its website in August to confirm it was continuing to suspend the vacant seat scheme because of the PSVAR. It explained how the Regulations affected the operation of the TVS scheme and announced the survey, inviting responses by 12 October 2021. It explained:
• To comply with PSVAR, vehicles with more than 22 seats had to be wheelchair accessible and the Council could only sell seats on compliant vehicles.
• Most of the routes serving schools use vehicles with more than 22 seats, most of which do not comply with PSVAR.
• This means the Council cannot sell vacant seats on all vehicles it uses for home to school transport.
• The Council had reviewed the situation and found as transport operators were not likely to have enough compliant vehicles for several years, it could not provide a system within the law that would be fair. Having a hybrid system would potentially result in some families paying a large sum for a service another family would get for free, and still leave other families without any option.
• Unless “a legal and fair solution is presented to us in the next six weeks” parents should assume the TVS scheme would not be reinstated.
31. The Council also explained the position and publicised the survey by contacting parents who had been enquiring about the TVS scheme, issuing press releases, and sharing information with schools.
32. The Council considered the results of the survey, or ’listening exercise’ at a pre-Cabinet meeting on 3 November and a Cabinet meeting on 15 December.
33. In deciding on the future of the TVS scheme the Council considered a range of factors, including:
• a detailed analysis of the survey results, including solutions suggested by participants;
• the financial, legal, and equalities implications of each of the options considered previously, and the numbers affected;
• the state of the coach market and the level of compliance with the Regulations;
• action taken by other local authorities to deal with the problem; and
• its statutory transport duties.
34. The report to Cabinet explained the difficulties local coach operators faced in sourcing new or second-hand PSVAR compliant vehicles or retrofitting existing ones, in terms of time and expense. Only around 30% of operators’ existing fleets were already compliant and most of those were already contracted. The report explained that because of the confusion around the legislation, many coach operators, even those with modern fleets, did not have vehicles that met the Regulations as they had thought home to school transport, school/club trips and leisure trips were all exempt. The Cabinet considered the practical difficulties of having to replace the number of vehicles needed and the likely cost, which would place significant additional pressure on the Council’s home to school transport budget.
35. The Council found it could still meet its statutory duty to transport pupils who qualified for free transport without requiring all vehicles to comply with the Regulations. It said it would always provide eligible pupils who had mobility needs with a suitable vehicle, and would be able to commission a PSVAR compliant vehicle if and when necessary to meet the needs of an eligible pupil.
36. The Council decided to end the vacant seat scheme but to review the decision and consider reinstating the scheme once there were significantly more coaches available across the County that meet the PSVAR requirements.
37. It also decided to analyse the data from its research and the survey in more detail to look at the possibility of re-routing existing public bus routes to serve areas where pupils had lost out because of the impact of the Regulations. This would help pupils not entitled to free transport to get to school.
38. Following the Cabinet meeting the Council wrote to parents explaining the outcome of the survey and the Council’s decision to end the scheme. It confirmed it would use the feedback it had received to compare demand with existing routes. It said where possible it would work with operators to adapt services to help children not entitled to free transport to get to school. It advised that the decision to discontinue the vacant seat scheme would not affect pupils entitled to free home to school transport, or those aged 16 and over who are eligible for transport under the post-16 scheme. The Council updated its website accordingly.

Miss Y’s case

39. Miss Y is one of several parents who complained to the Ombudsman about the suspension of the TVS scheme. Her son, E, was attending School 1 and started at the sixth form there in September 2021. School 1 is his catchment school and the nearest school with a sixth form. E had a seat on home to school transport under the TVS scheme before it was suspended. E is autistic but does not have an Education, Health and Care (EHC) Plan. Miss Y has a younger child who is still eligible for transport on the bus and older children who used to use the TVS scheme. Because of Miss Y and her partner’s working hours they have only been able to take E to school two days a week. Miss Y says they have made transport arrangements with another family whose child goes to the same school. But she said it has been chaotic, changing from week to week, which E finds difficult to cope with because of his autism.
40. In preparation for E’s move to the sixth form, Miss Y says she contacted the Council in May 2021 to try to register for the TVS scheme. She says she also spoke to the Council about whether E would be eligible for transport under the Council’s transport policy but was told he would not as he was over 16 and did not have an EHC Plan.
41. In mid-June Miss Y wrote to the Council with the heading ‘Vacant Seat Scheme’ explaining her family circumstances. She said her son would be attending sixth form at School 1 from September and there was no public bus service where she lived. She said E used to use the smaller of two school buses travelling to School 1 because of his autism. His sister takes the same bus. Miss Y said she wanted to know when a decision would be made on the TVS scheme.
42. The Council replied at the beginning of July. It said once children reach the age of 16 they cease to be eligible for free home to school transport. The TVS was still suspended but it was being regularly reviewed as the pandemic developed and updates would appear on the Council website.
43. In July when she was aware COVID-19 restrictions would be eased Miss Y contacted the Council again about the TVS scheme and was told the Council had not made a decision yet and she should check the website for updates.
44. In early November Miss Y applied for help with home to school transport using the online form for free transport for pupils of compulsory school age. The Council says it sent a ‘standard refusal' as the student was over 16.

Analysis - was there fault causing injustice?

45. Miss Y complained to the Ombudsman not only because she did not agree with the decision to suspend and then end the vacant seat scheme. She also felt the Council had not been honest in the reasons it gave for suspending the scheme, and had failed to communicate with her properly.

Suspension of the Temporary Vacant Seat scheme

46. Suspension of the scheme has clearly left Miss Y and some other families living in areas with no public transport in the difficult position of having to find alternative ways of getting their children to school. Miss Y is understandably aggrieved that her son is no longer able to use the bus her daughter uses to get to school. However the Ombudsman has no power to criticise a council’s decision unless there is evidence of fault in the way it was reached.
47. In this case the TVS scheme was discretionary and the Council was entitled to consider whether it should continue under the changed circumstances, firstly of the COVID-19 pandemic and then the impact of the accessibility Regulations. The Ombudsman has already dealt with a complaint about the Council’s suspension of the scheme in 2020 due to the pandemic (reference 20007506). We found the Council was not at fault as it was following government guidelines on COVID-19 safety measures.
48. Miss Y’s complaint is about the decision to continue to suspend the scheme and then end it in 2021. My view is the Council was not at fault in the way it arrived at its decision. It reviewed the position in August 2021, resulting in a decision to carry out a survey. The evidence I have seen shows the Council weighed up the options carefully and in detail and considered relevant information and the implications of each course of action, as described in paragraphs 33-35 above.
49. It would have been open to the Council to ask coach operators to apply for further temporary exemptions up to the end of July 2022, which might have assisted Miss Y and others in her position. This was one of the options considered. However taking into account the risk that operators would not be able to demonstrate they were working towards compliance with the Regulations sufficiently to qualify for the exemptions, and the resources the Council would need to devote to the process, it decided this was not a viable option. The Council took the view that even if operators were granted exemptions, the coverage was likely to be uneven across its area. It decided it would only reinstate the TVS scheme if it could find a way of doing so fairly across the County and it had not been able to do so. That was a decision it was entitled to make.
50. The Council was satisfied the decision to end the TVS scheme would not affect its ability to meet its statutory duty towards pupils eligible for transport.
51. Based on the evidence I have seen I do not consider there are grounds for the Ombudsman to question the Council’s decision to end the TVS scheme, even though Miss Y strongly disagrees with it.
52. The documents show the Council recognised stopping the scheme might have an impact on some pupils not eligible for free transport who might have greater difficulty getting to school. The fact that the Council is looking into re-routing public bus services is evidence it listened to concerns raised by families in areas where there is no access to public transport. I understand the Council has started work on this and this may provide a solution for Miss Y.
53. Regarding the failure to prepare for PSVAR, the evidence I have seen suggests many councils and transport operators were caught out as they were not aware the Regulations applied to home to school transport until the middle of 2019. The Council then started working with operators on the problem at that point, but it has not been able to resolve the issue.

Communications

54. The Council wrote to Miss Y and other parents affected in June 2020 to advise about the suspension of the TVS scheme in advance of the start of the new academic year in September. Up till that point they had been able to benefit from the scheme free of charge.
55. When the Council wrote to parents in August 2021 it referred to the PSVAR. Miss X feels it had been hiding the real reason for suspending the scheme. However I do not see evidence that the Council was deliberately misleading parents. It had initially suspended the scheme because of COVID-19 and then had to review the position when circumstances changed following a change in government guidance. It became necessary to consider whether to reinstate the scheme in the light of the Regulations. At the same time the Council warned parents they should not rely on the scheme and should consider alternative arrangements.

Post-16 transport policy and application and appeal

56. One area of communications where I consider the Council was at fault is in its response to Miss Y’s enquiry and request for help with transport. Miss Y says she first enquired about the possibility of help with transport in May 2021. I have not seen evidence of this enquiry and the Council does not keep records of all telephone enquiries. However I have no reason to doubt that Miss Y asked about transport as she wanted to prepare for E’s move to sixth form. On balance, also, it seems likely the Council would have told her E would not be entitled to transport on the grounds that he was over 16. This is the response it gave her when she enquired on other occasions, in June and November 2021.
57. When Miss Y wrote in June, although she referred to the TVS scheme, she also explained her personal family circumstances and the difficulty in getting E to school without the scheme. She did so again in November. Each time the Council gave a ‘standard refusal’ that E was not eligible because he was over 16. I consider that to simply state the Council will not offer assistance for this reason alone is fault. When someone applies for help with post-16 transport, the Council should consider whether it is ‘necessary’ to provide it. If Miss Y made her application on the wrong form I would expect the Council to direct her to the correct one. The way the Council dealt with her request meant she did not have the opportunity to have her individual circumstances considered to see if it was necessary to provide transport.
58. In response to our enquiries the Council said its post-16 transport policy takes account of all relevant factors as required in the statutory guidance. But I see no reference in the policy to consideration of the needs of those in rural areas where there is no public transport. Nor is there room in the Council’s policy for any discretion to consider whether transport is necessary for pupils who do not meet the low income or special educational needs and disability criteria.
59. I consider the Council’s post-16 transport policy is flawed as it does not cover these issues. This fault contributed to Miss Y’s injustice as set out in paragraph 58. The papers show that in the discussions around the suspension of the TVS scheme the Council recognised it may need to review its post-16 transport policy. My view is it should do so now.

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Agreed action

60. To remedy the injustice caused to Miss Y the Council has agreed to take the following action within one month of the decision on this complaint:
• Apologise to her for failing to consider her request for help with transport properly.
• Consider Miss Y’s request for help with transport, if necessary providing her with the required form. If the Council agrees it is necessary to provide transport, it should also reimburse Miss Y for the costs of taking E to and from school since September 2021. It should also pay her £250 to recognise the difficulties she had in making the transport arrangements. If it does not agree, it should write to Miss Y to explain its decision and offer her the right of review. If any subsequent review or appeal is successful the same remedy should apply.
61. The Council has also agreed to review its post-16 transport policy to include reference to pupils in rural areas and to allow for discretion in deciding whether it is necessary to provide transport assistance. It will take this action within six months and tell the Ombudsman the outcome.

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Final decision

62. I have found that the Council was not at fault in how it decided to withdraw the Temporary Vacant Seat scheme. But it was at fault in failing to respond properly to Miss Y’s request for help with home to school transport and consider whether it was necessary to provide support. Also I consider its post-16 transport policy is flawed. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman