The Ombudsman's final decision:
Summary: There was fault in the way the Council decided Mrs C’s appeal for free school transport for her niece (D) for whom Mrs C and her husband have day-to-day care and responsibility. When deciding the appeal the Council failed to consider whether Mrs C and D’s individual circumstances justify setting aside policy. To put right fault the Ombudsman recommended and the Council agreed to arrange a fresh appeal for Mrs C.
- Mrs C complains that:
- There was fault in the way the Council considered Mrs C’s application for free school transport for D and in the way the Council decided Mrs C’s appeal against the Council’s refusal to arrange free transport for D
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. If there has been fault, the Ombudsman considers whether it has caused an injustice and, if it has, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- As part of my investigation I have:
- Considered the written complaint made by Mrs C
- Spoken to Mrs C on the telephone about the complaint
- Considered documents the Council provided in response to Ombudsman enquiries
- Considered Mrs C’s and the Council’s response to the draft decision
What I found
- As part of their duty to ensure their child’s regular attendance at school, parents are responsible for their child’s home-school journey and any vehicle transport which may be involved. However, councils must provide free home school transport for children who meet certain criteria. The categories of children for whom the council must provide transport are:
- Children who live beyond ‘statutory walking distance’ of the school. Councils do not have to provide free transport for a pupil who lives beyond statutory walking distance of the school if the council considers there is a nearer suitable school.
- Children who cannot reasonably be expected to walk to the nearest suitable school because of the nature of the route.
- Children who cannot reasonably be expected to walk to school because of a mobility problem or because of health and safety needs issues related to their special educational needs or disability.
Special rules apply to pupils from families with a low income defined as those where the child has a right to to free school meals or the parents receive the maximum level of Working Tax Credit.
- Councils have discretionary power to go beyond the statutory minimum and make additional provision in policy.
- For children entitled to free transport the council may provide its own transport (contract vehicle) or provide a free bus or train pass for public transport. A mileage allowance may be provided for parents who wish to take children to school in their own vehicle.
- Nottingham City Council publishes a policy on school transport: ‘Home to School and College Transport and Travel Assistance Policy’ (HSP).
- For admission to a secondary school Nottingham City Council has drawn up geographical ‘catchment’ areas each of which has a designated school. Section 1.7 of HSP says that ‘parents have the right to express a preference for a school other than the ‘designated school’ and this is known as a ‘preferred school’. Parents choosing a school other than their designated school will not normally be entitled to travel assistance unless the preferred school is nearer than their designated school or is the nearest available school and beyond the statutory walking distance’.
- Section 2.1.1 of HSP says that ‘the LA will not generally provide travel assistance to a pupil attending a school other than the designated school, or a nearer school, as a result of parental preference, or provide travel assistance where a pupil’s Special Educational Needs (SEN) can be met at their nearest appropriate school with available places, but parents decide to send their child to a school that is further away’.
- Section 2.1.3 of HSP says that ‘the LA will provide travel assistance where a pupil lives within the maximum walking distance for their age but is unable to walk safely to their designated school because they have a particular special need, disability or mobility problem (including a temporary mobility problem). This is referred to as a ‘‘special transport need’’. ‘The SEN Officer will determine if a pupil has a Special Transport Need, drawing upon medical advice and advice from other appropriate professionals as necessary.’
- Section 3.2 of HSP says ‘if a parent elects to move their child to an alternative (further away) school due to personal reasons during statutory school age, and this move results in travel issues for the pupil, that school will be treated as a preferred school for travel assistance purposes, and therefore the pupil would generally not be entitled to free travel, unless they meet the ‘Low income criteria’ (see Section 2.1.2). All other applications will be considered on an individual basis. Some exceptions may be made for Pupils that have no choice in moving schools (see Section 2.2 ‘pupils permanently excluded from school’).
- The Council has a 2 stage appeal/review procedure which applies to general appeals and appeals for pupils with a special transport need. The appeal for pupils with a special transport need is described in section 7.2 of HSP. The first stage involves a Service Manager from the SEND Team reviewing the original decision. If the parent/carer is unhappy with the result s/he can step up the appeal to a second stage. The second stage appeal involves consideration by the Senior School Transport Officer. Section 7.2 of HSP says that this Officer ’will not have been involved in making the original decision, and advice may be sought from at least one other educational professional where necessary’. Section 7.2 says that ‘all appeals will be treated on an individual basis’.
- The complaint concerns home-school transport for a young person (D) aged 16. D is a Year 11 pupil at a mainstream secondary school (school Q). D has balance and coordination problems when walking, learning and behavioural difficulties. D is on school Q’s register of pupils with special educational needs and her special educational needs are met within the resources of the school. D receives the Higher Rate Mobility Component of Disability Living Allowance. D is known to child social care (children’s disability team). D lives with her maternal aunt (Mrs C) and her uncle. Mrs C and her husband have a Residence Order for D.
- D transferred from primary to secondary school (school P) in September 2012. School P is the ‘designated’ or catchment school for the home address. From September 2012 to July 2016 the Council arranged free home-school transport for D. The Council describes this arrangement as an ‘out of policy’ (discretionary) decision.
- During the summer holiday 2016 Mrs C made an in-year application for a Year 11 place for D at school Q. School Q is a mainstream secondary school 2.01 miles from the home address. Mrs C says that she sought a place for D at school Q for several reasons:
- D’s and Mrs C’s loss of trust in school P’s ability to meet D’s disability and special educational needs
- Irretrievable breakdown in relationships between D, Mrs C and school staff
- School Q’s better provision (Nurture Group provision/easy access to disabled toilets) for young people with special educational needs and disability
- Belief that school Q was the nearest school which could suitably meet D’s special educational and disability needs
- A condition of entitlement to free school transport under Council policy is that the child attends the catchment school or a nearer school. The Council does not give help with travel for a child who attends a school which is neither the catchment school nor the nearest school to the home address.
- School Q was ‘not D’s catchment school nor is it the nearest secondary school’. The offer and allocation of a place for D at school Q was the result of ‘parental preference’.
- There was another school (school R) which was closer to the family home than school Q and ‘could meet D’s needs’.
- Mrs C might consider applying for a mobility bus pass for D.
- Mrs C could appeal the decision by writing to the SEN Service Manager.
- ‘The LA has a duty to provide travel assistance for a pupil attending the nearest school that can meet that pupil’s needs where it is not reasonable for that pupil to walk to school.’
- ‘Travel assistance for D was previously offered on the basis that D was attending the nearest school that could meet her needs.’
- The letter supported the view that school P could meet D’s needs. ‘I understand that your sister has advised that you consider school Q to be better placed to meet D’s needs, but the LA has been informed by school P that they were meeting D’s needs before your decision to move her.’
- When deciding to apply for a place for D at school Q Mrs C had access to several Council publications and web sites with information on transport policy.
- Mrs C could step up the appeal to the second stage with the appeal being considered by the SEN Transport Manager’.
- D received free school transport when she started school P because this school ‘was identified as being the nearest suitable place of education that could meet D’s needs’. Based on information provided by Mrs C and ‘all the other parties involved with D’s education’ the Council is ‘satisfied that school P is able to meet D’s needs and there is nothing to indicate that they are unable to do so’.
- School Q was neither the catchment school nor the nearest school to the home address. The offer and allocation of a place for D at school Q was the result of ‘parental preference’. The Council does not have responsibility to provide school transport ‘when parents choose a school for personal reasons’.
- When considering the appeal the Senior Transport Manager consulted with a colleague of suitable experience and independence.
- It is relevant to investigate the appeal decisions made the SEN Service Manager and the Transport Manager since they supersede the decision made on the application by the SEN case officer. There is evidence of fault in the way the appeal was decided for the reasons given below.
- The task of appeal decision makers at both stages of the school transport appeals procedure can reasonably be understood as two-fold:
- Deciding whether the Council properly applied its policy to the applicant child.
- Deciding whether there are special circumstances which justify departure from Council policy.
- D’s involvement with child social care (D is known to the Children’s Disability Team as a Child in Need or as a child requiring early intervention services);
- the family’s finances;
- the registered disability status of Mrs C who with her husband has primary care responsibility for D;
- evidence suggesting irretrievable breakdown in relationships between D, Mrs C and school P’s staff.
- There was fault in the way the Council decided the appeal. The Council failed to consider whether there are exceptional circumstances which might justify departure from Council policy. To correct fault causing injustice the Ombudsman recommended and the Council agreed to do the following:
- Arrange as soon as possible a fresh second stage appeal. The appeal is carried out by a senior Council officer with no previous knowledge of the case.
- The agreed action suitably remedies fault. The complaint is therefore closed.
Investigator’s final decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman