The Ombudsman's final decision:
Summary: Mrs X complained the Council had refused assistance with home to school transport when her daughter transferred to a new school. The Council was not at fault in the way it made this decision. It considered the individual circumstances of Mrs X’s case against relevant law and guidance.
- Mrs X complained the Council have refused assistance with home to school transport for her daughter, D, following her move from school 1 to school 2 in October 2017 due to bullying. Mrs X says the Council did not explain she would need to provide medical evidence for the appeal, which meant the medical aspects were not considered.
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 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)
- 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 spoke to Mrs X and considered the information she provided.
- I considered the Council’s replies to my enquiries.
- I considered the statutory guidance on home to school transport and the Council’s policy on this.
- I considered the Ombudsman’s focus report on school transport issues, March 2017.
- I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered their comments before making my final decision.
What I found
- The Education Act 1996 says parents must ensure their children receive an education, whether at school or by home educating them. A council can take legal action against a child’s parents where a child is not attending school and the council is not satisfied she is receiving suitable education at home.
- The courts have decided that the fact a child has been bullied at a school does not necessarily make that school unsuitable. The school is expected to have a bullying policy in place and to take appropriate action to deal with any bullying that occurs.
Home to school transport
- The statutory guidance on home to school transport sets out the council’s duty to assist with school transport for eligible children. A child is eligible for help from the council with school transport if:
- she is of compulsory school age.
- her nearest suitable school is more than 2 miles (if the child is below the aged of 8) or 3 miles (if the child is aged 8 or over) from the home.
- she cannot be expected to walk to school because of special education needs, a disability or mobility problems
- there is no safe route to walk to school.
In certain cases, the council may need to assist families on very low incomes.
- The nearest suitable school is defined as the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child and any special educational needs that the child may have.
- The guidance states that at the point when transport is considered the council should decide whether “the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one”.
- The guidance says councils must give extended rights to children whose parents are entitled to free school meals or get the maximum Working Tax Credit if the nearest suitable school is more than two miles from the child’s home.
- The Council’s policy defines the nearest suitable school as one of the three nearest community secondary schools to the child’s home address, with available places and up to a maximum distance of 6 miles. The policy says when deciding if places are available it will consider if places would have been available if the school had been named as a preference in the normal admissions process.
- The policy does not specifically refer to the situation where a child moves from one secondary school to another. It does give the Council discretion to consider any exceptional circumstances raised by the parents.
- Statutory guidance sets out a recommended approach to school transport appeals. Stage one should be a review by a senior officer. This should give the parent an opportunity to ask for a review, setting out why they believe the council should review its decision.
- The Council should send the parent a detailed written notification of the outcome of the review setting out:
- The nature of the decision reached.
- How the review was conducted.
- What factors were considered.
- How to ask for a further review at stage two.
- Mrs X wanted to transfer her daughter, D, to another secondary school as she was bullied at her school (school 1). She said this had aggravated one of D’s medical conditions. D does not have a statement or Education, Health and Care Plan to meet any special needs arising from this although school 1 was aware of the issue. She says she spoke to the Council by telephone and was told the nearest alternative schools were full. She emailed the Council on 13 July 2017 for advice because she understood the local schools were full. In her email she asked specifically about three named schools. These were not three nearest schools to D’s home.
- The Council told Mrs X two of those schools were full and the third was not in its area. It told her to complete the transfer form and get it signed by the current Head Teacher (at school 1) and returned to the school admissions team.
- Mrs X decided to transfer D to school 2. She completed the transfer form and a transport application form. School 2 is 4.6 miles from D’s home. The Council refused to assist with school transport because school 2 was not one of the three nearest suitable schools. One of those schools was school 1 which had a policy to tackle bullying. It enclosed a leaflet setting out its policy on school transport.
- Mrs X appealed. She said:
- D had been physically and mentally abused, both in and out of school 1.
- She had had meetings with school 1 but the problem had not been resolved.
- D had been diagnosed with a medical condition and the bullying was making this worse.
- The Council had told her there were no places in local schools and this is why she had looked further afield.
- The Council should not count school 1 as suitable because D wasn’t safe there.
- The other two schools (schools 3 and 4) did not have places so she couldn’t choose them.
- Mrs X said the Council told her there were no places at nearer schools and this is why she looked at schools further away. There is no record of this conversation so I am unable to confirm what the Council told Mrs X prior to her email contact. The evidence I have seen shows Mrs X asked about specific schools and the Council replied accurately about them. The specific schools were not the nearest schools. Therefore, I am unable to conclude the Council told Mrs X the nearest schools were full.
- The Council applied the law and its policy correctly in deciding D did not qualify for free home to school transport because she does not attend her nearest available school.
- Mrs X complains the Council did not tell her she needed to provide medical evidence. Council correspondence with her asked her to provide as much evidence as possible to support her request. The Council therefore gave her an appropriate opportunity and acted without fault.
- The Stage 2 appeal gave Mrs X the opportunity to explain any exceptional circumstances. She referred to D’s medical condition in her reply to the original decision and had the opportunity to do so again at the appeal. Therefore, I am satisfied the Council considered the individual circumstances of the case in the Stage 2 appeal.
- In explaining its decision, it noted the matters raised by Mrs X but found these were not exceptional. The Council was therefore not at fault in the way it considered whether to exercise discretion to award transport assistance.
- I have completed my investigation. I have not found fault leading to personal injustice.
Investigator's decision on behalf of the Ombudsman