The Ombudsman's final decision:
Summary: The Ombudsman found no evidence of fault in how the Council considered Mrs L’s application for free school transport for her daughter.
- Mrs L complained about the Council’s decision to decline her application for free home to school transport for her daughter (who I will call A). She was unhappy with the outcome of the independent appeal panel, which upheld this decision
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. 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) However, 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)
How I considered this complaint
- I considered the information Mrs L provided in her complaint to the Ombudsman.
- I reviewed the documents sent by the Council for my investigation, which included the papers for the school transport application and appeal, and Mrs L’s correspondence about why she needs a free bus pass for A.
- I took account of relevant legislation and guidance.
- I sent a draft decision to Mrs L and the Council for comments.
What I found
- The Education Act 1996 (as amended by the Education and Inspections Act 2006) places a duty on councils to promote sustainable transport for children of compulsory school age. In certain circumstances, councils also have a duty to provide free home to school transport for children. (Education Act 1996, section 508A, 508B, 508C and Schedule 35B)
- Children between 11 and 16 will be eligible for free home to school transport if they attend the nearest ‘qualifying school’ and the school is more than three miles from their home. The ‘qualifying school’ is the nearest school with places available that is suitable for the child’s age, ability, aptitude and any special educational needs they may have.
- Councils also have discretionary powers under section 508C of the Act to provide free home to school transport for children who would not normally be eligible under the criteria.
- Each council has its own policy but should take account of the Department for Education’s Home to school travel and transport guidance from 2014 (“the Guidance”).
- Medway Council’s policy defines the qualifying school as the geographically nearest suitable school (using the shortest available safe walking route). In determining suitability, the Council includes whether the school is selective and whether the child needs to attend a faith school, but does not take account of parental preference.
- Under the policy, for a child to be considered for free school transport when they are not attending the nearest qualifying school, parents must have named this school as a higher preference on the application than the school their child attends. If parents applied for the nearest qualifying school as the highest preference but their child was not offered a place, the Council will consider free school transport for the next nearest qualifying school, if it has been named as the next preference on the application.
- The Council only offers free transport to children attending schools in Medway, unless there are exceptional circumstances. This could be if the child is attending a non-Medway school which is the nearest qualifying school.
- Councils should have an appeals procedure for school transport applications. The Guidance sets out a recommended two-stage procedure, with a stage 1 review by a senior officer and a stage 2 review by an independent appeals panel. The Council follows this procedure and offers applicants a review at stage 1, which, if they remain unhappy, is followed by stage 2, when the Council’s School Transport and Curriculum Appeals Committee will consider the case.
- A, who was eleven years old at the time of the complaint, was assessed by the Council’s standard test as eligible for a place at a grammar school. However, following Mrs L’s application for a secondary school place for A, she was unfortunately not offered her first choice of grammar school because it was over-subscribed. Mrs L lost her appeal against this decision. A was also unsuccessful with her second choice of school. These were her two nearest qualifying schools.
- The Council offered A a place at a different grammar school, which was the third nearest qualifying school. However, Mrs L says the journey to this school is unsafe because it requires two buses. She declined the offer and obtained a place for A at a different grammar school, which is outside the Medway border. This school is three miles further away than the school the Council offered but it is only one bus journey. Mrs L says the journey is therefore safer and quicker for A.
- The bus- pass A needs to travel to school costs £5 per day (£750 per year). In July 2016 Mrs L applied to the Council for assistance with school transport for A, which it provides though a free bus-pass.
- The Council refused Mrs L’s application for free school transport. Its decision letter stated this was because A was not attending her nearest qualifying school, or one of the three nearest qualifying schools.
- Mrs L asked for a review of the decision. She wrote to the Council and explained that A did not get either of her first two choices of school. She said the school the Council had offered was not safe because A had to get two buses. She further explained that A is the youngest in her year group, would have to travel alone and gets very anxious. She stated that, while the school A is attending is further away, the journey is quicker and safer, because she can take one bus. Mrs L also commented that if A had been offered a place at her first choice of school, she would have qualified for free travel, so the family was being penalised twice.
- The Student Services Manager reviewed the decision at stage 1. In August he wrote to Mrs L and explained that he accepted A did not get her first two choices of school and empathised with her situation. However, she did not meet the eligibility criteria for free school transport because she was not attending her nearest qualifying school. He advised Mrs L of her right to appeal.
- Mrs L took her complaint to stage 2 and submitted her arguments to School Transport and Curriculum Appeals Committee. She again emphasised that A did not get her first two choices of school. She said she had chosen her current school for the safer journey and the higher Ofsted rating. She described how anxious A gets with travel but said she was now settled so they did not want to change her school. She also stated that, while she and her husband work and do not claim benefits, the cost of A’s school travel is too expensive for them.
- The Committee met in November to consider Mrs L’s appeal. It heard the arguments from Mrs L and the Council. The Committee members acknowledged that A was not offered a place at her nearest two qualifying schools and considered Mrs L’s reasons for deciding the school the Council offered was not suitable. It also took account of Mr and Mrs L’s difficulties meeting the cost of A’s school travel.
- However, the Committee decided the Council had applied its policy on school transport correctly in A’s case. It did not uphold the appeal on the grounds that Mrs L had chosen not to accept a place for A at the next nearest qualifying school. It considered whether there were exceptional circumstances in A’s case which would mean the Council should offer free transport outside the usual criteria. However, it decided there were none.
- The Council wrote to Mrs L in November and explained the reasons for its decision. Mrs L was very unhappy with the outcome. While she understands the policy, she feels the Council should use its discretion to consider A as an exceptional case because her anxiety about travelling and the need to take two buses meant her nearest qualifying school was not suitable.
- The Council considered Mrs L’s application through all stages of its appeal process. It applied its school transport policy correctly when making its decision and also considered whether there were exceptional circumstances in A’s case.
- Therefore, I found no evidence of administrative fault by the Council and I have now completed my investigation.
Investigator's decision on behalf of the Ombudsman