Walsall Metropolitan Borough Council (16 011 960)

Category : Education > School transport

Decision : Upheld

Decision date : 15 Mar 2017

The Ombudsman's final decision:

Summary: There is no evidence of fault in the way the Council processed Mr C’s September 2016 applications for free transport for D and E for the academic year 2016-17. The Council considered the key relevant factor which is the Council’s current policy on home-school transport as it applies to children who attend a school which is beyond statutory walking distance. However, the Council failed to follow through the appeals procedure correctly and did not communicate clearly with Mr C about the appeals procedure. The Ombudsman recommended and the Council agreed to correct this fault by offering Mr C an opportunity to step up the appeal to stage 2 of the school transport appeals procedure.

The complaint

  1. The complainant (Mr C) complains that:
    • There was fault in the way Council officers considered applications for free school transport for the year 2016-17 for his two children D and E

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The Ombudsman’s role and powers

  1. 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))

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How I considered this complaint

  1. As part of my investigation I have:
    • Considered the written complaint made by Mr C
    • Spoken to Mr C on the telephone about the complaint
    • Considered documents the Council provided in response to Ombudsman enquiries
    • Considered the Council’s response to the draft decision
    • Given an opportunity to Mr C to respond to the draft decision

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What I found

  1. 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. ‘Statutory walking distance’ is defined as being up to two miles for a pupil aged under eight and three miles for pupils aged eight to sixteen. Councils do not have to provide free transport for a pupil who lives beyond statutory walking distance of the school attended 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 (the route is deemed unsafe to walk).
    • 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 is entitled to free school meals or the parents receive the maximum level of Working Tax Credit.

  1. Councils have discretionary power to go beyond the statutory minimum and make additional provision in policy for free or assisted school transport.
  2. 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.
  3. Walsall Council publishes a policy on school transport: ‘Home to School Travel Assistance Policy’ May 2015’ (HSP).
  4. Paragraph 8 of HSP says that Children are normally entitled to free home-to-school travel assistance if they live in Walsall and they attend the nearest appropriate school and live beyond “walking distance” from the school at which they are on roll.
  5. Paragraph 41 of HSP says it may take up to 10 working days to process a fully completed application.
  6. Paragraph 10 of HSP says that ‘where parents prefer their child to attend a more distant school, they are responsible for making and paying for the necessary travel arrangements’.
  7. Paragraph 15 of HSP says that ‘from September 2015 the authority will no longer provide transport assistance to faith schools, other than to pupils who qualify for this via the statutory eligibility criteria. However, any children currently receiving free transport assistance in the form of a bus pass will continue to do so while they are eligible up until they are 16, or until they move to another school (whichever is earlier)’
  8. Paragraph 32 of HSP indicates that the Council will take into account special circumstances. Paragraph 32 says that ‘free travel assistance will only be provided in exceptional cases at the discretion of the authority.
  9. The Council has a system for appealing against decisions to refuse travel assistance. Parents can appeal against decisions relating to eligibility, type of transport arrangement, distance measurement for ‘statutory walking distance’, safety of a walking route and consideration of special circumstances. The appeal process has two stages.
  10. The first stage involves review of the decision by the Corporate Assisted Transport Manager. Paragraph 44 of HSP says that parents must submit the appeal within 20 working days of the original decision. Paragraph 44 says that the Officer should review the original decision and send a written notification within 20 days of receiving the request.
  11. The second stage involves a formal hearing before a panel. As well as submitting written statements of case, parents and council officers can attend the hearing in person to put forward their case, ask questions and answer questions. Panel’s decision on the appeal must be communicated in a letter saying what factors were considered and the reason for the decision. The second stage must be completed within 40 days of receiving a parent’s request to escalate the appeal to stage 2.
  12. The function of appeal decision makers at stages one and two of the school transport appeals procedure can reasonably be understood as two-fold task: a) deciding whether the council officer when processing the claim for free transport applied the Council’s general criteria correctly to the child and b) deciding whether the individual circumstances of the application justify departure from Council policy.

What happened/background

  1. Mr and Mrs C’s two children (D and E) attend a mainstream faith based school (school Z). D transferred from primary school to school Z in September 2015. D is now in school Z’s Year 8. E transferred from primary school to school Z in September 2016 and is currently in school Z’s Year 7. School Z is beyond ‘‘statutory walking distance’’ (the Council assesses school Z as 3.1 miles from the home address).
  2. Mr and Mrs C applied for free home school transport (free bus pass) for D on 4 September 2015. The School Transport Team refused to award free transport on the grounds that D did not have entitlement under Council policy.
  3. The Council (Assistant Transport Officer) sent a letter dated 28 September 2015 refusing free school transport for D. The letter made the following points:
    • The Council’s policy is to provide free transport when the child attends the nearest suitable school and that school is beyond ‘’statutory walking distance’’ which is 3 miles for a pupil over the age of 8.
    • There were nearer schools to the home address than school Z.
    • The Council’s policy on transport to faith schools had recently changed: ‘Please note that the faith element for free travel is no longer in existence for new applicants from September 2015. Existing recipients will still receive bus passes until the end of year 11.’
  4. On 1 October Mr C sent an email to the school transport team saying that he was aware of two other children with identical circumstances to D (same year group as D and living a similar distance from school Z) for whom the Council arranged free transport. Mr C suggested that the Council was treating service users in like circumstances in a different way and to the disadvantage of Mr C and his family. Mr C asked the Council to review the decision.
  5. The Council did not readily respond to Mr C’s email. Mr C sent chaser emails to the Council’s school transport team asking for a response.
  6. The school transport team (Assistant Transport Officer) sent an email on 26 October in response to Mr C’s email of 1 October. The email made similar points to those made in the letter dated 28 September 2015 and upheld the original decision. The email told Mr C how he could appeal the decision.
  7. Mr C sent an email to the school transport team on 1 December which he presented as a ‘formal appeal against the decision’. The email made similar points to those Mr C made in his email sent on1 October. Mr C also asked the Council to disclose ‘the list of pupils who live within 400 yards radius of our postcode and attending school Z with reasons given’.
  8. In late February the Council decided to provide free school transport (provision of a free bus pass for D) for the academic year 2015 – 2016. In March 2016 the Council sent Mr and Mrs C a cheque for £275 which enabled them to recoup the cost of private purchase of a bus pass for D.
  9. In its response to Ombudsman enquiries, the Council told the Ombudsman that in February 2016 the Council identified that it had provided free bus passes for several year 7 pupils attending school Z as a result of administrative oversight. These pupils were not eligible for free transport under policy or the exceptional circumstances criterion. On identifying the error the Council decided not to claim back the cost of the bus passes and to continue paying for school transport for the pupils involved to the end of the summer term 2016. In the interests of consistent decision making and equality of treatment with families who had benefitted from the Council’s administrative error, the Council made a discretionary decision to send Mr and Mrs C a cheque equivalent to the cost of their private purchase of a bus pass for D.
  10. The School Transport Team sent Mr and Mrs C a letter dated 23 February 2016. The letter can be understood as a standard letter sent to parents of the pupils who had been given bus passes in error. The letter made the following points:
    • Under Council policy D was not entitled to free school transport to school Z since it was not the nearest secondary school to the home address (there were three nearer appropriate schools).
    • ‘An error has been identified’.
    • ‘In fairness the LA will honour this bus pass to the end of the year when the bus pass will expire.’
  11. On 4 September 2016 Mr C applied for free transport to school Z for D and E for the academic year 2016-17.
  12. In late September the Council refused free transport for D and E on the grounds that they were not eligible under the Council’s policy. The Council says that the school transport team (Transport Support Officer) sent a letter dated 28 September 2016 to Mr and Mrs C which formally notified them of the decision. The letter said that D and E were not entitled to free transport under Council policy since school Z was not the nearest suitable school to the home address. The letter pointed out that Council policy on transport to faith schools changed in September 2015.
  13. On 26 September Mr C sent the corporate complaints team an email. The email said that D and E had been refused free transport for school Z whereas children with the same profile and circumstances as D and E had been awarded free transport. The email said: ‘The Transport Service made the same decision to award free bus passes to many children in the immediate neighbourhood despite their circumstances being the same as my children, hence disadvantaging my children against the other pupils in the same neighbourhood’. The email referred to the Council having ‘acknowledged that they have made decisions in an unfair manner and awarded £275 as the cost of the bus pass for D for the past year’. Mr C asked the Council to provide free bus passes for D and E and claimed that the Council was in breach of discrimination law (Equalities Act 2010).
  14. The corporate complaints team forwarded details of the complaint to the school transport team.
  15. Following a telephone conversation between Mrs C and a member of the school transport team (Assistant Transport Coordinator), the Assistant Transport Coordinator sent Mrs C an email on 3 October giving an email address for receiving ‘a written appeal’. The email said ‘once we have received your appeal it will be passed to management for a final decision to be made’.
  16. Mr and Mrs C sent an email to the school transport team on 3 October. The email said that the parents were making a ‘formal appeal’ against the decision to refuse free transport (bus passes) for D and E on the grounds that pupils in like circumstances were being treated differently to the disadvantage of Mr and Mrs C’s family. The email said: ‘I have made the application only after confirmation that free scholars bus pass has been granted to pupils who live in the same postcode area with a 3 minute walking distance from my home. Of the 3 pupils that I know one of them are new recipients of the bus passes and match the circumstances of D and E.’ The email said that ‘the Council, in my view, has acted in an unfair and discriminatory way between pupils despite full knowledge of their circumstances being same’.
  17. Mr C says the school transport team did not readily respond to the email sent on 3 October and that he contacted the corporate complaints team by telephone on 25 October to complain about lack of response.
  18. The Council (Transport Support Officer) sent a letter dated 26 October 2016 which was addressed to the ‘parent/carer of D and E’. The letter thanked the parent/carer for the ‘email regarding the bus pass application for D’ (sic) and apologised that Mr C was ‘unhappy with the decision regarding D’. The letter referred to a letter of 28 September 2015 as having explained the reason for the decision. The letter said ‘should you wish to appeal this decision, please send your appeal in writing to the address detailed below where an independent party will review it for you.’
  19. Mr C says he did not receive the letter dated 26 October 2016. On 2 November the Council’s corporate complaints team forwarded to Mr C an email from the Transport Support Officer. The Transport Support Officer’s email contained similar content to the letter dated 26 October 2016 and was identical in content to an email sent to Mr and Mrs C over a year earlier by the Assistant Transport Officer on 26 October 2015.
  20. On 2 November Mr C sent an email to school transport and the corporate complaints team. The email reiterated the complaint that pupils in like circumstances were being treated differently to the disadvantage of Mr and Mrs C and their family. The email said that the Transport Support Officer’s letter of 26 October 2016 failed to address Mr C’s concern about discrepancy in Council decisions. The email also said that D could be considered an ‘existing recipient’ and therefore was eligible for free transport to school Z under Council policy. The email said: ‘As I have already gone through the Appeal Process (made on 03/10/16) and again through the Complaints Process, I would appreciate if you could advise me of any further process that needs to be exhausted before I escalate the complaint to the Ombudsman’.
  21. The Children’s Services Commissioning Manager sent Mr C a letter dated 11 November 2016. The letter made the following points:
    • Mr C’s complaint ‘has been dealt with under the corporate complaints process’.
    • D and E were not eligible for free school transport to school Z under Council policy.
    • Mr C’s complaint about discrimination was unsubstantiated: ‘There was no discrimination in your case, as the criterion was applied fairly and in line with the home to school transport policy’.
  22. The Corporate Complaints Team sent Mr C an email on 14 November saying that the complaints procedure had been exhausted and signposting him to the Ombudsman.
  23. Mr C requested information from the Council the Freedom of Information Act 2000. The Council responded in an email sent on 21 December 2016.

Analysis

  1. When investigating a complaint about an administrative decision concerning a child the Ombudsman in general does not take into account decisions about other children and families. The presumption is that each decision is made on its own merits. However, the Council has sent the Ombudsman information which satisfies the Ombudsman that Mr C’s concern about consistency of decision making between different children and families is unjustified. Due to the need to protect the confidentiality of other children and families, the Ombudsman cannot share this information with Mr C.
  2. I am satisfied the decision to grant D free transport in March 2015 was discretionary and time limited. The decision has no bearing on the decision the Council made about D’s eligibility for school transport for the academic year 2016-17.
  3. There is no evidence of fault in the way the Council processed Mr C’s September 2016 applications for free transport for D and E for the academic year 2016-17. The Council considered the key relevant factor which is the Council’s current policy on home-school transport about pupils who attend a school, including a faith school, which is beyond statutory walking distance. The Council processed the application correctly by considering D and E’s individual details and circumstances as given on the application forms and applying the Council’s general rules to those details.
  4. However, there is evidence of failure to follow through the 2 stage appeals procedure correctly. Mr C’s email of 3 October 2016 – which followed from the Assistant Transport Co-ordinator’s email of 3 October 2016 saying that Mr C could ‘send in a written appeal’ – amounted to submission of an appeal at stage 1 of the school transport appeal process. The Transport Support Officer’s letter dated 26 October 2016 can reasonably be understood as a stage 1 response under the Council’s school transport appeals process. Mr C’s email sent on 2 November was a response to the letter dated 26 October 2016 and should, in my view, have triggered the Council’s arrangement of a stage 2 appeal Panel. As it happened, the Council’s final response to Mr C’s challenge to the Council’s decisions on school transport for D and E was a decision letter under the corporate complaints procedure.
  5. The evidence suggests that having considered Mr C’s challenge to school transport decisions at stage 1 of the school transport appeals process, and having created an expectation that the appeal could be escalated to stage 2, the Council then diverted Mr C’s appeal into the corporate complaints process. Further the Council failed to explain clearly why it channelled Mr C’s appeal into corporate complaints. I note that a stage 2 Panel hearing would offer Mr and Mrs C a higher level of due process (consideration of the parent’s verbal and written representations by a Panel independent of the process to date) than can be achieved under the corporate complaints process. It would also give Mr and Mrs C opportunity to put forward any individual circumstances about their family which they might want the Council to consider.

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Agreed action

  1. To put right fault about the appeals process the Ombudsman recommended and the Council agreed to carry out the following action as soon as possible:
    • Offer Mr and Mrs C the opportunity to escalate their appeal to stage 2 of the school transport appeals process so that the Council can consider whether there are any exceptional circumstances, such as financial hardship, which might justify departure from Council policy.
    • Apologise to Mr and Mrs C for upset caused by poor communication and failure to follow through the appeals procedure correctly.

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Final decision

  1. The agreed action suitably remedies fault. The complaint is therefore closed.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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