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Kent County Council (17 012 208)

Category : Education > School transport

Decision : Not upheld

Decision date : 12 Apr 2018

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s decision to refuse free school transport for her daughter. She says the walking route to school is unsafe and the Council has made inconsistent decisions. The Ombudsman finds the Council’s decision making was correct. And there was no fault causing significant injustice.

The complaint

  1. Mrs X complains about the Council’s decision to refuse free school transport for her daughter. She says all the boys in the area get free transport to the local grammar school but the Council does not treat girls the same. She believes the appeal panel has made inconsistent decisions. She is the only parent paying for her daughter to travel on the school bus.

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What I have investigated

  1. I have investigated Mrs X’s complaint about the Council’s decision. I have not investigated the complaint that the Council treats girls less favourably than boys, for the reasons given at the end of this decision.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), as amended)
  1. 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)
  2. 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

  1. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

  1. The law on school transport is set out in the Education Act 1996. This says councils must provide free school transport for ‘eligible children’ to attend their ‘qualifying school’. The ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have’.
  2. ‘Eligible children’ are:
    • children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16);
    • children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
    • children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk; and
    • certain children entitled to free school meals, or whose parents receive the maximum level of working tax credit.
  3. A council has discretion to go beyond its duties and to provide free school transport to children who are not entitled to it.

Council policy; school transport

  1. The Council’s Home to School Transport Guidance 2017/18 says the Council will provide free school transport to a child over eight if:
    • The child attends the nearest suitable school and;
    • Lives more than three miles away using the shortest available walking route.
  2. There are additional rights for children who cannot walk to school due to health reasons and for families on a low income.
  3. The policy notes that a grammar school is a parental choice and where it is not the nearest school, there may be no eligibility to receive transport.

Council policy; appeals process

  1. Parents can appeal a decision on school transport for any reason. The appeal panel will consider any arguments put to them. The panel will need to be satisfied the Council has applied its policy correctly. It will then look at the specific circumstances to see if they are sufficiently strong to enable it to use its discretion to make an exception. The panel has a responsibility to consider the most cost effective and appropriate mode of home to school transport taking into account the family circumstances at the time of the appeal.

What happened

  1. In 2017 Mrs X applied for free school transport for her daughter. However, the Council refused the application because Mrs X’s daughter did not attend her nearest suitable school.
  2. Mrs X asked the Council to reconsider as a school bus already travelled the route and there was no safe walking route for her daughter.
  3. The Council told Mrs X its refusal was in line with its policy. It noted some children were given free transport before its policy changed in 2012. It told Mrs X she could appeal its decision if she wished.
  4. Mrs X appealed. She gave the following reasons for her appeal:
    • A school bus was already travelling the route;
    • There was no safe walking route;
    • The boys attending the grammar school got free transport;
    • There was no public transport available;
    • Her daughter’s school was more than three miles away.
  5. The Council has provided minutes of the appeal hearing. These show the appeal panel considered the Council’s policy and found it was correctly applied. They then considered Mrs X’s arguments but decided they would not use their discretion to make an exception to the Council’s policy.
  6. The Council told Mrs X the outcome of the appeal. It noted the panel considered Mrs X’s arguments and the Council’s position. It said the panel was satisfied the Council had applied its policy correctly. It also said:

“in order to be able to uphold your appeal the Panel would have needed to be persuaded that the strength of your case outweighs the additional cost to the council in providing free transport”.

  1. In response to my enquiries the Council noted the wording of its appeal outcome letter did not mirror its policy on appeals. It said it would change the wording to reflect the policy more accurately.

My findings

  1. The Council refused to provide free school transport because Mrs X’s daughter did not attend her nearest suitable school. The Council’s decision is in line with the law and therefore I cannot say its decision was wrong.
  2. I note the Council’s policy, at the time, did not say it would provide free transport where a child is within walking distance of their nearest suitable school but the route is unsafe. The policy should have set this out in accordance with the law. However, I note this did not cause any injustice in this case.
  3. The Council has an appeals process, which allows it to exercise its discretion to go beyond its statutory duties. I cannot question whether the appeal panel’s decision is right or wrong, simply because Mrs X disagrees with it. I must consider whether there was fault in the way the decision was reached.
  4. The appeal panel considered Mrs X’s appeal in line with the Council’s policy. It took account of all relevant matters and decided it would not use its discretion to make an exception to the Council’s policy. I cannot say there was fault in the way the panel made its decision.
  5. Mrs X has pointed out that another child in the same circumstances was given free transport on appeal. However, I have reviewed the notes of the panel hearing on this other case. Although it is clear the circumstances are similar, they are not identical and, different arguments were presented to the panel. I am mindful that the panel will look at each case individually on its own merits and that decisions may be finely balanced. I cannot say the panel has acted inconsistently.

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Final decision

  1. I have completed my investigation. This is because I find no evidence of fault in the Council’s decision to refuse free school transport.

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Parts of the complaint that I did not investigate

  1. I have not investigated Mrs X’s complaint that the Council treats girls less favourably than boys:
    • This is because I consider I would be unlikely to find fault. The boys’ grammar school is in a different location to the girls’ grammar school and therefore the circumstances are not comparable.
    • This is also because any fault would not cause Mrs X injustice. If I found fault in the decision making process regarding the boys, this would not affect the decision made regarding Mrs X’s daughter.

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Investigator's decision on behalf of the Ombudsman

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