The Ombudsman's final decision:
Summary: Mr B complained that the Council has not dealt with his education travel appeal properly. The Ombudsman found that the Council did not follow its policy and did not give a detailed written explanation of the considerations made by the appeals panel. This left Mr B with uncertainty that his appeal was properly considered. The Council has agreed to reconsider the stage 2 appeal, provide a detailed written explanation and review its school transport policy.
- Mr B complained the Council’s committee which deals with education travel appeals had;
- not used a consistent journey route throughout the appeal process.
- considered a home to school journey route that does not represent the full and complete journey that his children will have to walk and that is not the safest route possible.
- failed to consider all the grounds of his appeal against withdrawal of travel support for his children.
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)
- 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)
How I considered this complaint
- I spoke to Mr B and considered the details of his complaint. I reviewed documents sent by the Council about Mr B’s appeal.
- I invited Mr B and the Council to comment on my draft decision and I considered the responses they made.
What I found
- The Education Act 1996 says councils must provide free school transport to eligible children. The term ‘eligible’ means children of compulsory school age who meet certain criteria.
- The eligibility criteria relevant to this complaint are that:
- The child (aged at least 8 years old) must live at least 3 miles away from school using the shortest route along which a child, accompanied if necessary, may walk safely or,
- The child cannot reasonably be expected to walk the route to school because the nature of the route is unsafe to walk.
Assessing routes to school
- Home to school travel and transport statutory guidance 2014 (Statutory Guidance) says that to assess whether a route is safe to walk, councils,
“Should consider a range of risks, such as: canals, rivers, ditches, speed of traffic and fields of vision for the pedestrian or motorist. A [council] should also consider whether it is reasonable to expect the child’s parent to accompany the child along a route which would otherwise be classified as being unsafe”.
- Statutory Guidance does not mention personal safety factors, for example remoteness of a route or incidence of crime affecting it, as risks councils need to consider when deciding a route is safe to walk.
- Statutory Guidance does not specify a method councils must use to assess route safety. It says the only known standard is ‘Road Safety GB’. This is published by Road Safety GB, the Royal Society for the Prevention of Accidents (RoSPA) and Think Road Safety.
- The Road Safety GB guidelines define an ‘available route’ as being a public right of way maintained by the council. This means a route the council is responsible for keeping open to the public. This includes roads, surfaced or unsurfaced, footpaths, bridleways or public land. There is no reference to the possibility of part of a route being a public right of way not maintained by the Council.
- Statutory Guidance says councils should decide whether a child can reasonably be expected to be accompanied, by considering a range of factors “such as the age of the child and whether one would normally expect a child of that age to be accompanied”.
- Statutory Guidance says, “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so”.
- The Road Safety GB guidelines state “case law has found distance and not safety is the appropriate test… and that children should be accompanied as necessary”. The guidelines say, “personal safety issues of children travelling alone are not considered”. They say councils “are not legally obliged to provide free transport just because parents perceive a route to be unsafe on the grounds of personal safety and security”.
- Relevant case law, Rogers v Essex County Council (1986) concerned a route that was isolated, unmade and unlit. Although primarily concerning the safety of a route, Lord Goddard CJ considered that the nearest available route is “…the nearest route from home to school…”
Appealing school transport decisions and phasing-in changes
- Statutory guidance recommends a two stage appeal process for parents to challenge a decision about:
- The transport arrangements offered.
- Their child’s eligibility.
- The distance measurement in relation to statutory walking distances.
- The safety of the route.
Council school transport policy
- The Council’s policy for secondary age children is to provide travel help where there is no available walking route of three miles or less.
- The Council defines routes as available where a child, accompanied as necessary, can walk and walk with reasonable safety to school.
- The Council policy sets out the assessment process it uses to decide if a walking route to school is available. It uses the Road Safety GB’s guidelines as referred to in Statutory Guidance.
- Officers apply the guidelines to decide if walking routes are safe.
- The Council policy sets out what should happen when an error has been made. Where the Council has granted assistance in error, notice of one full term will normally be given that assistance will be withdrawn to allow families to make other arrangements.
- The Council policy sets out what should happen when a parent wishes to appeal a decision. At stage one, the matter will be reviewed by a senior officer, who will send within 20 days a detailed written notification of the outcome. At stage two, an independent appeal panel will consider written and verbal representations from both the parent and officers and should give a detailed written notification of the outcome within 5 working days, setting out the nature of the decision, how the review was conducted, who was consulted, what factors were considered and the rationale for the decision reached. (Appendix 1 Home to School Transport – Review/Appeals Process, Hampshire County Council Home to School Transport Entitlement Policy September 2014)
- On 13 November 2017, the Council wrote to Mr B’s wife telling him that travel to school assistance for his children had been granted in error, and would therefore be withdrawn according to the Council’s policy. Mr B’s wife appealed the decision by email to the Council on 17 November 2017. At the same time as giving notice that she wished to appeal the decision, Mr B’s wife put a range of questions to the Council about the route the Council considered her children could walk to school.
- On 20 November, the Council replied to Mr B’s wife saying that a transport inspector will calculate the distance from the boundary of the home address to the nearest available school gate. The Council said that GIS (Graphical Information System) that they used calculated the distance to be 2.826 miles.
- On 6 December, the Council confirmed to Mr B’s wife that the transport inspector had measure the distance at 2.677 miles. The Council said, “the measurement has been taken from the bottom of your drive, where it meets highway land, to the nearest available school gate.”
- On 7 December, the Council then undertook to consider any safety concerns that Mr B and his wife had over the proposed home to school journey route. Mr B’s wife asked for clarification of the actual route being proposed by the Council in order to make comments.
- The Council provided a written description of the route taken by the transport inspector, confirming the distance from the actual driveway was 2.764 miles, and the distance from the nearest public highway was 2.677 miles.
- On 14 December Mr B’s wife outlined the basis of her appeal to the Council, which disputed the calculated end point for the journey and detailed a number of concerns about safety. Mr B’s wife said, “We would assert that the journey starts when the child starts walking and finishes when they stop walking.”
- On 8 January, the Council said they would have the home to school journey route assessed by the Council’s Road Safety Officer, in light of the safety concerns raised. On 7 February, the Council wrote to Mr B’s wife saying the Road Safety Officer had declared the route to be safe.
- On 20 February, the Council replied to Mr B’s wife’s concern that the Council had discounted significant portions of the journey to artificially reduce it to under 3 miles. It said, “The walking distance is measured from where your property border line meets the public highway, and at the school it is measure to nearest available entrance to the school, which in this case is where the entrance to the leisure centre is.”
- Mr B’s wife responded to the Council on 19 February saying she did not agree that the whole journey had been measured and that she did not agree that a crossing point forming part of the route was safe.
- The Council provided a stage one response on 28 February 2018. The response by the Council did not deal with the actual start and finish points of the journey. The Council did not include that information as it had already been stated in the email on 20 February.
- During March 2018, the Parish Council made comments to the Council regarding the safety of the route proposed. The Council responded to the Parish Council on 3 April 2018 but declined to provide any opinion as the matter was going to stage 2 appeal. The Council had conducted a safety assessment previously and this was reported to the stage 2 appeal.
- The Council agreed to progress the appeal to Stage Two. The committee hearing the appeal met on 15 May 2018. Mr and Mrs B attended the committee and made a presentation. The Council rejected the appeal.
- The Council said it would calculate the journey distance from the boundary of the home address to the nearest available school gate. The Council actually determined the home to school journey distance considered by the appeal committee according to its policy, instead of how it stated it would do to Mrs B.
- The distance of the route considered by the committee was 2.677 miles. This means that the start of the route considered during the appeal was from the nearest public highway and not Mr B’s house. A map used by the Council in the appeal indicates that the route starts at Mr B’s house. This was fault by the Council because it has been inconsistent with Mr B about what the actual route being considered was, throughout his appeal. The uncertainly and lack of clarity regarding the precise route under consideration may have impacted on whether the journey was calculated to be over the statutory 3-mile limit.
- On the morning of the appeal, Councillors met Mr B near his house. The location of Mr B’s house was explained to them, giving them a clear understanding of the distances involved.
- It is of note that despite having been asked to comment on what should happen in situations where the policy cannot apply, because an appellant’s property does not border on adopted public highway, the Council has simply restated its policy.
- The Council’s policy and the statutory guidance make consistent reference to the end point of a home to school journey being the school. Where that end point should be at a school is not defined.
- The end point used by the Council is outside a leisure centre. The leisure centre is located next to the school. Whilst it shares a name with the school, it has separate signage, a separate car park and a separate website. It is open to the public throughout the day. To all intents and purposes, it is separate from the school.
- There is no entry point directly to the school at the finish point used by the Council. Signs at the finish point used by the Council indicate a car park for the leisure centre only. Pupils wishing to enter the school have no alternative but to walk a further distance in order to access the school through a separate pedestrian entrance. The Council accept that the school insist that children use the ‘main gate’ on Brimpton Road. The Council had selected a finish point on the fringes of a joint school/leisure centre site, from which there is no direct access to the school. This was fault by the Council because the choice of finish point had the effect of arbitrarily reducing the length of the journey to school. Mr B cannot be certain that the journey distance considered by the appeals committee was correct.
- The Council did consider safety concerns expressed by Mr B. It conducted a safety assessment by the Road Safety Officer and determined the route was safe. This was not fault by the Council. The Ombudsman is not able to consider the merits of an assessment that has been properly reached.
- The final response sent to Mr B by the Council consisted of the minutes of the School Transport Appeal committee that heard Mr B’s stage two appeal. The minutes;
- do outline the nature of the decision reached.
- do show how a review of safety concerns were addressed.
- do not show how a review of distance concerns were addressed.
- do not show information about other departments and/or agencies that were consulted as party of the process.
- do not fully show what factors were considered.
- do not show the rationale for the decision reached.
- To remedy the injustice caused by the faults I have identified the Council has agreed to the following recommendations:
- Within 4 weeks of the final decision apologise to Mr B for the time and trouble he has been caused and arrange a new stage two appeal. This should be heard by members not involved in the original committee. The Ombudsman should be provided with a copy of the appeal outcome. If the appeal is successful the Council should reimburse any transport costs incurred by Mr B since the funding was withdrawn on Thursday 29th March 2018.
- Within 3 months of the final decision review its home to school transport policy to ensure that:
- unadopted roads are included in home to school distance measurements;
- distances to schools are measured in such a way that the starting and finishing points used accurately reflect the child’s journey from home to school;
- complete an audit of other refused home to school transport applications where the leisure centre gate was used to calculate the distance. Reimburse the costs incurred for any family who would have been awarded transport had the revised point been used.
- Evidence of these actions should be provided to the Ombudsman once complete.
- I have found that there was fault by the Council in not complying with its home to school travel policy. The Council has agreed to my recommendations and I have completed my investigation.
Investigator's decision on behalf of the Ombudsman