Kent County Council (17 017 062)

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 decision to refuse free school transport for his two sons. He says the walking route to school is unsafe and the Council’s policy is unfair. The Ombudsman finds the Council’s decision making was correct. And there was no fault causing significant injustice.

The complaint

  1. Mr X complains about the Council’s decision to refuse free school transport for his two sons. He says the walking route to their secondary school is unsafe and he considers the Council’s policy is unfair.

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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’. 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)

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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.

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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. Mr X applied for free school transport for his two sons. He noted their school was less than three miles away however he considered the walking route was unsafe.
  2. The Council refused the application because Mr X’s sons did not attend their nearest suitable school.
  3. Mr X referred the Council to information on the Gov.uk website which suggested all children should get free transport if the walking route was unsafe, irrespective of the school attended. He noted that other families were receiving free transport and he believed his circumstances were the same.
  4. The Council told Mr X his children had to attend the nearest suitable school to qualify for free school transport. And, although the walking route may be unsafe it will only consider this when the child attends the nearest suitable school. It explained it could not comment on individual cases but noted some families qualified due to a low income. It told Mr X he could appeal its decision if he wished.
  5. Mr X appealed because there was no safe walking route for his children to get to school.
  6. 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.
  7. 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 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.
  2. I have seen the Government website information, referenced by Mr X. This says: “If there’s no safe walking route, they must be given free transport, however far from school they live”.
  3. However, I note this statement cannot be read alone. The website explains that children qualify for free school transport if they go to their nearest suitable school and live at least three miles from school if they are over eight. If there is no safe walking route they must be given free transport, however far from school they live. In other words, whether the child lives 1 mile or 15 miles from their nearest suitable school, they will have to be given free transport where the walking route is unsafe.

My findings

  1. I cannot say the Council’s policy is unfair, simply because Mr X disagrees with it. I must consider whether the Council’s policy is in line with the law and whether it was applied correctly.
  2. The law says a council must provide free school transport if the child cannot walk to the nearest suitable school because the route is unsafe. If a child does not attend their nearest suitable school, a council does not have to provide free transport.
  3. The Council refused to provide free school transport because Mr X’s sons did not attend their nearest suitable school. The Council’s decision is in line with the law and therefore I cannot say its decision was wrong.
  4. 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 oversight did not cause any injustice in this case.
  5. 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.
  6. The appeal panel considered Mr 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 for Mr X’s children. I cannot say there was fault in the way the panel made its decision.

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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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Investigator's decision on behalf of the Ombudsman

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