Summary: Mrs X complains about the way the Council dealt with her application and appeal for home to school transport for her daughter. The Ombudsman has not found fault by the Council.

The complaint

1. Mrs X complains that the Council failed to consider her application and appeal properly for home to school transport for her daughter. In particular she says:
1. the Council's school transport policy was flawed because it did not refer to the issue of the safety of the walking route;
2. she did not receive all the information needed for the appeal before the hearing; and
3. the appeal process was not fully independent.

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The Ombudsman’s role and powers

2. 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)
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

4. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport. I gave the Council and the complainant an opportunity to comment on my draft decision.

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What I found

5. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. ‘Eligible children’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children over eight);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of ‘the nature of the route’;
• children who cannot reasonably be expected to walk to school because of their mobility problems, disabilities or special educational needs. (Education Act 1996, section 508B(1) and Schedule 35B)
6. The duty only arises where the local authority has not made ‘suitable arrangements’ to enable the pupil to attend a qualifying school nearer home.
7. Councils also have discretion under the Act to offer transport where they consider it necessary to help ensure the child attends school.
8. Statutory guidance ‘Home to school travel and transport guidance’ (‘the Guidance’) says:
• The relevant 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.
• At the point when the council considers eligibility for transport, the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one. For most cases this will be during the normal school admissions round when places are allocated.
• Children cannot reasonably be expected to walk to the nearest suitable school because of the nature of the route where the “route is deemed unsafe to walk”.
9. The relevant Council policy when Mrs X applied for school transport was the ‘Home to School Transport Entitlement Policy’ 2014. This set out the distance criteria as in the law and statutory Guidance. It also said:
• The Council provides free transport to the designated catchment area school or to a nearer school to the home address, providing the distance criteria are met.
• Where parents express a preference for the designated catchment or a nearer school and the school cannot offer a place, it will offer free transport to the next nearest school with a place available providing the distance criteria are met.
• “The ‘nearest available route’ has been considered in a number of legal cases and is taken to mean a route along which a child, accompanied as necessary, can walk with reasonable safety to school.”
10. The Council updated its home to school transport policy in September 2018. This includes in the definition of children of compulsory school age those:
• who attend their nearest or catchment school which is beyond the statutory walking distance;
• who, because of their special educational needs, disability or mobility problems cannot reasonably be expected to walk to their school;
• whose route to the nearest suitable school is unsafe.
11. The Council has a two-stage appeal process for challenging decisions about home to school transport. This involves:
• Stage one: Review by a Senior Officer
• Stage two: Review by an independent appeal panel whose members are independent of the original decision-making process, but not necessarily independent of the Council, and are suitably experienced.

What happened

12. Mrs X has a daughter, Y, now aged 12. Y was due to transfer to secondary school in September 2018. Mrs X applied unsuccessfully for a place for her at School 1. The Council allocated Y a place at School 2, her catchment school. School 1 is outside the catchment area and is further away from the family home than School 2. Both schools are more than three miles from home.
13. Mrs X appealed to an independent Admission Appeal Panel against the decision refusing a place at School 1. The hearing took place in July 2018 and the appeal was successful.
14. Mrs X applied for home to school transport for Y to School 1. The Council rejected the application, saying Y was not eligible for transport under its policy. Mrs X contacted the Council by telephone and they then had an exchange of emails about the decision.
15. Mrs X’s view was that the Admission Appeal Panel had decided School 1 was the most suitable school for Y based on her ability and aptitude. Therefore, as Y would now be attending the ‘nearest suitable school’ in line with the definition in the statutory Guidance, and there was no safe walking route to School 1, she should qualify for free transport under the Council’s policy. She felt the catchment school was not suitable for her daughter, and that this was confirmed by the outcome of her appeal.
16. The Council’s position was that Y did not qualify because there was a place available for her at her catchment school and this was the nearest suitable school. The Council said it would consider any evidence she could provide as to why it should award transport as an exception to the policy. It explained how to appeal.
17. Mrs X appealed on 25 July 2018. Her argument was that:
• she had won the admission appeal on the basis that School 1 would provide the most appropriate education for Y, given her ability and aptitude;
• there was no safe walking route for Y from her home to School 1 or to the nearest bus stop;
• neither she nor her husband could take Y to school or to the school bus stop because of work commitments;
• therefore she should qualify for free home to school transport under the Council’s policy.
18. The Council carried out the Stage one review and wrote to Mrs X with its decision. It gave its reasons as follows:
• Y was not entitled to transport under its policy because School 2 was the catchment school and had offered her a place. If an admission appeal grants a place at an alternative school preferred by the parents, this does not make the child automatically eligible for transport.
• It did not consider there were any exceptional circumstances that would justify awarding transport outside of the policy.
19. Mrs X appealed to the Independent Appeal Panel. She set out the same grounds as previously. She said she believed the Council was not applying the unsafe walking route policy in line with the Guidance.
20. The Council received her appeal on 13 September. On 27 September 2018 the Council wrote to Mrs X acknowledging receipt of her appeal, informing her of the date and arrangements for the hearing, and enclosing the appeal papers. The hearing was due to take place on 4 October.
21. On 1 October 2018 Mrs X sent an email to the Council asking when she would be receiving the appeal pack. The Council replied the following day confirming it had sent the paperwork to her by post. It explained that this consisted of the documents she had provided as well as a statement from the Council. It attached a copy of the Council’s statement and sent it to her. It asked her to let the Council know if she did not receive the documents through the post.
22. On the day of the appeal hearing, Mrs X contacted the Council again by email to say she had not received the paperwork. The Council responded by trying to telephone her and sending her another copy of the Council’s statement for the appeal. It asked her to let the Council know if she would like to have paper copies available at the hearing.
23. The appeal hearing took place on 4 October 2018. Mrs X attended. The appeal was unsuccessful. The Council’s decision letter set out the arguments put forward by each side. The Council’s Presenting Officer, the Head of Transport, argued as follows.
• It was not in dispute that Y was entitled to transport to School 2 as this is her catchment school and she was allocated a place there on school offer day. School 2 is over three miles from her home.
• School 1 is the alternative school the parents preferred. The admission appeal was successful. But this does not make Y entitled to transport under the Council’s policy or the statutory Guidance.
• One of Mrs X’s arguments for the school admission appeal was that “the school run would be much more straightforward” to School 1. So the Council did not consider there were exceptional reasons to award transport.
24. The letter set out Mrs X’s case about the definition of ‘nearest suitable school’ under the Guidance, the unsafe route policy, and the admission appeal decision, as described previously in this statement.
25. The Appeal Panel decided that the Transport Department had applied the Council’s policy correctly when it made the decision on the application. It found that the Stage one appeal was entitled to make the decision it did for the reasons given. The Panel supported the decisions made previously, both that Y did not qualify under the policy and that there were no grounds to make an exception to the policy.
26. In giving its reasons the Appeal Panel explained that the independent Admission Appeal Panel has to follow the School Admission Appeals Code in making its decision. The Admission Appeal Panel’s role was not to decide which was the most suitable school for Y, or to say whether School 2 or any other school was not suitable. What it had to do was weigh up the parents’ reasons for wanting a place at School 1 against the harm that may be caused to the School and its pupils by admitting another pupil, if it had already reached its planned admission number. It explained that the independent Admission Appeal Panel does not and cannot have the effect of creating an eligible child for transport purposes.
27. The Panel explained further that the unsafe walking route rules do not apply unless the child is attending the nearest suitable school. School 2 was Y’s “nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child”. It said the fact that Mrs X’s admission appeal included an argument about Y’s abilities and aptitude does not mean School 1 met this definition. It said the Council does not offer places based on aptitude and ability.
28. The Panel also said there was no evidence to justify treating Y as an exception to the policy since Mrs X was currently driving Y to school.
29. Mrs X complained to the Ombudsman. She complained that the Council had not followed the statutory Guidance properly in relation to ‘nearest suitable school’ and ‘unsafe walking route’. She said the Council’s policy did not refer to the safety of the route. She also said she had not received the papers for the appeal hearing in time and that the person who wrote the Council’s school transport policy was on the Appeal Panel. She said this was unfair as she was challenging the policy.

Analysis – was there fault causing injustice?

30. Mrs X’s key argument is that winning the admission appeal for a place at School 1 meant that School 1 became Y’s nearest suitable school for transport purposes. She believes Y should qualify for transport because there is no safe walking route to the School.
31. I find no fault in the way the Council considered the application or appeal. The documents I have seen, including the Clerk’s notes of the transport Appeal Panel hearing as well as the appeal decision letter, show that the Panel considered Mrs X’s arguments carefully and in detail. The Panel considered the Council’s policy and the statutory Guidance. The Clerk to the Panel advised that she also clerks Admission Appeal Panel hearing. She confirmed that the two Panels decide different legal questions, and success in one does not mean success in the other.
32. The decision letter is detailed and reflects both sides’ arguments accurately. The Panel gave reasons for its decision. It correctly explained that a decision to admit a child to a school on appeal does not automatically create entitlement to transport.
33. Under the law and Guidance a pupil cannot qualify for transport, even if the walking route is unsafe, if the child does not attend their nearest suitable school. The Council’s policy is in fact more generous than the law and Guidance requires in that it allows a child to qualify if they attend either the catchment school or a nearer suitable school. The Guidance does not mean that the ‘nearest suitable school’ is the one the parents consider most suitable for their child. Rather it means that a school is suitable if it does not exclude entry because of age, aptitude or ability. For example a school would not be considered suitable if it was a grammar school but the child had not passed the required test.
34. In this case the Council has explained that there was a place available for Y at School 2, the catchment school, during the normal admissions round. As School 2 is more than three miles from her home, this meant she would have qualified for transport if she had taken a place there. So I consider that in deciding Y was not eligible for home to school transport to School 1, the Council has applied the law, the Guidance and its own policy properly. In the absence of fault I cannot question the decision reached.
35. The Panel has also shown that it considered whether there were any exceptional circumstances justifying awarding transport outside the policy. Mrs X’s arguments centred on entitlement under the policy. She did not present any exceptional circumstances and the Council and the Panel took account of the fact that she was already taking her child to school.
36. I have also considered Mrs X’s complaint about delay in receiving the papers for the transport appeal hearing. The Council has provided evidence that it sent the appeal papers in advance of the hearing date by post. The letter is correctly addressed. When the Council became aware that Mrs X had not received the papers, it sent her a copy by email of the one document she would not have seen previously. It explained that all the rest of the papers were documents she had provided. I appreciate that it would have been difficult for Mrs X not to have received the full bundle of papers from the Council before the day of the hearing. However the evidence does not show this was a result of fault by the Council.
37. Mrs X also complains that the Appeal Panel was not fully independent because one of the members was the person who wrote the Council’s transport policy. In response to our enquiries the Council has explained that this is not the case. It was in fact the Presenting Officer from the Transport Department who had written the policy, not any of the Panel members. The Panel consisted of senior officers from School Admissions, IT, and the Special Educational Needs service. The Council apologises if the Presenting Officer gave the wrong impression and did not state clearly that it was he who wrote the policy, not any of the Panel members. I have not seen any other evidence suggesting that the Panel was not independent of the service which made the earlier decisions.
38. Mrs X says the Council’s home to school transport policy of 2014 was flawed because it did not explain the ‘unsafe walking route’ or ‘nearest suitable school’ provisions. The 2014 policy reflected the language of the legislation in referring to the ‘nature of the route’ a child could be expected to walk, in the section setting out eligibility. It also referred to walking in ‘reasonable safety’ later in the document. The 2018 policy uses clearer wording. Neither version provides a definition of ‘nearest suitable school’ but they both make it clear that transport will be provided to the catchment school or a nearer suitable school. I do not consider there were flaws in the 2014 policy that affected the decisions made on Mrs X’s application and appeal for home to school transport. In any event the policy has now been superseded. As I have not found fault causing injustice I will not make any formal recommendation about the policy. However the Council may wish to consider including an explanation of ‘nearest suitable school’ when it next reviews the policy. This may help parents better understand the qualifying conditions.

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Final decision

39. I have not found evidence of fault causing injustice in the way the Council dealt with Mrs X’s application and appeal for home to school transport. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman