The Ombudsman's final decision:
Summary: There is some evidence of fault in the Council’s handling of Mr Y’s appeal against the decision not to offer free school transport for his child. The Council will conduct a fresh appeal to be heard by three panel members.
- The complainant, whom I shall call Mr Y, complains about the composition and conduct of the panel which heard his appeal for home to school transport assistance.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
- 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)
How I considered this complaint
- I considered the correspondence submitted by Mr Y.
- I made enquiries of the Council and considered its response.
- I consulted the relevant law and guidance about home to school transport, namely the government’s ‘Home to School Statutory Guidance’ issued in 2014.
- I shared a draft decision with Mr Y and the Council and considered any comments received.
- Under the information sharing agreement between the Local Government Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
What I found
- The ‘Home to School Statutory Guidance’ recommends that councils adopt a “clear and transparent two stage process” for school transport appeals. While this guidance does not place a statutory duty on councils, it makes clear that councils are “under a duty to have regard to it when carrying out their duties in relation to home to school travel and transport, and sustainable travel”.
- The guidance says the first stage of the appeal should be a written review by a senior officer. It should set out the decision, how the review was conducted and what factors were considered.
- The second stage of the appeal should be a review by an independent appeal panel. The guidance says that panels should, within 40 working days of the application for appeal, consider the written and verbal representations of parents and officers involved in the case. The panel should confirm its decision, in writing, within five working days.
- The guidance makes clear that members of the panel should be independent of the original decision making process, but that they do not need to be independent of the council.
- I have also considered the Council’s ‘Home to School Transport Entitlement Policy’ (September 2014). I will refer to this as ‘the policy’. It outlines the statutory duty which all councils have for transporting children under the age of 16 who are attending their nearest suitable school with places, living at a distance of at least two miles if they are under eight, or three miles if they are over eight.
- The policy outlines the Council’s appeals procedure. It says: “In the first instance a case will be reviewed by a senior officer. In cases against refusal of a transport service there may be a further appeal to an Independent Appeal Panel”.
- It goes on to say: “members should be independent of the original decision making process (but are not required to be independent of the local authority) and suitably experienced (at the discretion of the local authority), to ensure a balance is achieved between meeting the needs of the parents and the local authority”.
- Mr Y applied for free home to school transport for his son, X, in September 2016. The Council refused his application because the distance to school from X’s mother’s address, which was the one given on the application form, was less than one mile.
- Mr Y and X’s mother are separated. X spends equal amounts of time with his mother and father at their respective addresses.
- The policy says: “when the child lives at the other address they will not qualify for any transport arrangements other than the one provided from the primary home address”.
- The primary home address is the one which the child resides and spends most of their time at, including weekends and school holidays. The Council has decided that X’s mother’s address is the primary one.
- The Council said that X was not entitled to free transport from the primary home address because the home to school distance is less than three miles. The distance between Mr Y’s address and X’s school is 12.4 miles. There are other schools closer to Mr Y, so X does not qualify for free transport from his address.
- Mr Y appealed. He argued that he had no choice about the school allocated to X as this had been ordered by the courts. So, whilst there are closer schools to his address, X cannot attend them because this would be in breach of the court order. Mr Y therefore argued that X is eligible because he travels more than three miles from his address to attend the closest suitable school.
- Mr Y also argued that, if X had attended the school local to his own address, as per Mr Y’s wishes, then X would have been eligible for free school transport due to it being an unsafe walking route. As such Mr Y pointed out that there was no change in the financial outlay to the Council and it should therefore offer transport to the secondary address.
- The Council did not uphold Mr Y’s appeal at stage one. In its decision letter the Council said that, when a family asks for an exception to its policy, it will consider the individual circumstances of the case. Exceptions usually cover short-term arrangements to assist with issues such as parental illness, homelessness or child protection.
- The Council said it had considered the information provided about the court order. In response it said that, although a court is at liberty to name a school, it does not mean that a council then has to provide transport assistance to a second address.
- The letter concluded: “you have the right to proceed to Stage 2 of the Appeal process which involves your case being assessed by a panel of three County Councillors...”
- Mr Y appealed again. The Council’s ‘Home to School Transport Appeal Panel’ heard the case in December 2016. The panel consisted of two Councillors.
- The panel did not uphold the appeal.
Was there fault causing injustice to Mr Y?
- The Council accepts that the appeal heard in December 2016 was not in accordance with the advice given to Mr Y in the stage one decision letter because the appeal panel consisted of two Councillors, not three.
- In future the Council says it will be clearer in the advice given to appellants. The government guidance does not place any obligation on councils to have panels comprising of at least three members; however if a council advises an appellant that a panel would be made up in a certain way, then the Ombudsman would expect the council to adhere to this, or provide prior notification of any change.
- In response the Council says its constitution specifies that it is the role of the ‘Executive Member for Education’ to hear appeals in respect of home to school transport. Therefore, any additional Councillors sitting on the panel only support the decision-making process and their views do not carry equal weight.
- This is not clear from either the Council’s policy or the advice given to parents.
- Mr Y also complains that an officer involved in the original decision to refuse transport was present at the appeal and was, at times, alone with the two Councillors.
- In response the Council has clarified that the officer in question was in the room to assist with the admittance of Mr Y on his arrival. In addition, at the end of the appeal the Council says the transport officer’s presence was needed so that he or she could receive the panel’s decision verbally in order to relay the reasons in the decision letter. This is because the hearings are not independently clerked.
- I recognise that the decision letter is composed by the service area; however it is unclear why the officer needs to be alone with panel members in order for the decision to be relayed verbally. The government guidance makes clear that those involved with the original decision should not form part of the panel process. In my view, Mr Y is correct to raise questions about the influence of the officer on the panel’s final decision. The Council accepts this is an area which it will review in time for the next academic year.
- While I cannot say the result would have been any different had the appeal been considered by three members, and the officer had not been alone with the panel, there is some uncertainty as to whether a correctly constituted panel would have reached a different decision. I consider this has caused Mr Y injustice in the form of uncertainty.
- The Ombudsman welcomes the Council’s proposal to clarify the advice provided to appellants, and to review the input of officer’s in the appeal process.
- To fully remedy the complaint the Council will also undertake the following actions within one month of my final decision:
- arrange a second appeal hearing for Mr Y. The panel should consist of three Councillors, as per the original advice given to Mr Y. Any transport officers involved with the original decision to refuse transport should not be involved with the panel’s decision making; and
- apologise to Mr Y for the unnecessary time and trouble he has experienced in pursuing this complaint.
- I have completed my investigation. There is evidence of fault causing injustice to Mr Y which the Council should remedy with the above recommended actions.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman