Kent County Council (17 014 276)

Category : Education > School transport

Decision : Not upheld

Decision date : 12 Apr 2018

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s appeal panel’s decision to refuse free school transport for his daughter, Y. He says the walking route to school is unsafe and the appeal panel’s decision was flawed. The Ombudsman finds the appeal panel’s decision making was correct. And there was no fault causing significant injustice.

The complaint

  1. Mr X complains about the Council’s appeal panel’s decision to refuse free school transport for his daughter, Y. He says the walking route to Y’s primary school is unsafe and there is no public transport available. He considers the appeal panel’s decision was flawed. He says the family has suffered inconvenience and stress due to the lack of transport provision.

Back to top

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’. 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)
  2. 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)
  3. 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)

Back to top

How I considered this complaint

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

Back to top

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 under eight if:
    • The child attends the nearest suitable school and;
    • Lives more than two 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. A younger sibling will not necessarily receive transport assistance just because their older sibling at the same school does. It will assess each child individually.
  4. Parents need to have applied to the nearest school or have named the nearest school on their child’s admissions application form for the Council to consider home to school transport. If the nearest school is not named as a higher preference on the admissions form, the child will not be eligible for transport.

Council policy; appeals process

  1. The Council’s Home to School Transport Guidance 2017/18 also sets out the Council’s appeals process. This says 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 June 2017 Mr X applied for free school transport for Y.
  2. The Council refused the application because Y did not attend the nearest suitable school.
  3. Mr X appealed against the Council’s decision. He raised the following points:
    • There was no safe walking route to Y’s school;
    • Historically there had been an agreement to provide transport to Y’s school;
    • Y’s brother receives free transport to the same school;
    • It would be impractical for Y to attend a different school to her brother;
    • Y would not have got into the nearest school because it was oversubscribed;
    • It is cheaper for the Council to provide transport to Y’s current school than to the nearest school;
    • The Council should be consistent in its decision making and it has provided free transport to other children in the past;
    • There is space on the school bus;
    • There is no easily accessible public transport to Y’s school;
    • It is not environmentally friendly to take Y to a different school.
  4. 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 Mr X’s arguments but decided they would not use their discretion to make an exception to the Council’s policy.
  5. It is clear from the correspondence and the appeal hearing minutes that the Council had a different policy in the past, but this changed in 2012. Further, that the Council had not applied its policy correctly in the past. When the Council realised its error it decided to continue to provide free transport to those it had given it to incorrectly.
  6. The Council told Mr X the outcome of the appeal. It noted the panel considered Mr 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 in the 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 law says a council must provide free school transport in certain circumstances, where a child attends their nearest suitable school. If a child does not attend their nearest suitable school, the council does not have to provide free transport.
  2. The Council refused to provide free school transport for Y, because she 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.
  3. 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, as Y does not attend the nearest suitable school.
  4. 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 Mr X disagrees with it. I must consider whether there was fault in the way the decision was reached.
  5. The appeal panel considered Mr X’s appeal in line with the Council’s policy. It found the Council had applied its policy correctly. 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.
  6. The Council did not communicate the panel’s decision to Mr Y correctly. The Council’s outcome letter suggested the panel weighed up the strength of Mr X’s case against the cost of providing free transport. However, this does not accurately reflect the decision making process as set out in the Council’s policy or as carried out by the panel. The Council has recognised this wording is unclear and has agreed to amend it. I am satisfied with this proposed action.
  7. The wording of the Council’s outcome letter concerned Mr X. He noted the cost of providing transport to Y was nil and therefore he felt the panel had made the wrong decision. However, I am satisfied the panel followed the correct decision making process and the letter does not reflect the decision made. Therefore, while the wording was unhelpful, I find this does not amount to fault causing significant injustice.

Back to top

Final decision

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

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page