Summary: Ms X complains the Council wrongly refused her Home to School Transport application. We found fault as the Council’s Home to School Transport Appeals policy does not follow statutory guidance. We have recommended a suitable remedy in this case.

The complaint

1. The complainant whom I shall refer to as Ms X complains the Council wrongly refused her application for Home to School Transport for her two children. Ms X says she has mobility and health issues so finds it difficult to get her daughters to school.

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The Ombudsman’s role and powers

2. 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)
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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

5. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided. I have explained my draft decision to Ms X and the Council and considered the comments received.

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What I found

6. Councils have a duty to provide free home to school transport for eligible children to qualifying schools.
7. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance; or
• receive free school meals, or whose parents receive the maximum Working Tax Credit.
8. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety.
9. The nearest qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.

Government Guidance on Home to School travel and transport

10. The Government has set out a recommended two stage review and appeals process for parents who wish to challenge a decision about their child’s eligibility for travel support:
• Stage one: Review by a senior officer.
• Stage two: Review by an independent appeal panel.
11. The guidance says a parent can challenge a decision on the home to school travel application on the basis of entitlement, distance measurement, route safety and consideration of exceptional circumstances. The parent can challenge the officer’s decision and request a review by an appeal panel.
12. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.
13. Councils have the power to provide discretionary funding for children who are not eligible. This is only in exceptional circumstances.

The Council’s Pre-16 Travel Policy 2018

14. The Council’s policy says that parents and carers are responsible for ensuring their children attend school and this includes getting them to and from school. However, the Council will help in some circumstances as well as its legal obligation to provide free transport for children of compulsory school age (5 to 16) if they go to their nearest suitable school with places available and live within the statutory walking distance.
15. The Council does not provide travel assistance where parents choose an alternative school for their child and it is over the statutory walking distance.
16. Parents can challenge a decision about transport entitlement on the following grounds; the arrangements offered, the child’s eligibility, distance measurements, safety of the route and consideration of exceptional circumstances. The Council has three panels that consider requests for school travel outside its statutory responsibility. These are the Individual Needs Transport Group (INTG), the Travel Officer Panel and the Education Transport Appeals Committee. Any exceptional circumstances are considered by the INTG, taking into account professional supporting evidence provided by the parent or carer.
17. The Council’s Review/Appeals policy says “you do not have the option to give verbal representation to this panel (INTG) because you are not eligible for SCC funded school travel. “

Events leading to the complaint

18. Ms X removed her two children from a school in 2017 alleging they were subject to bullying and racial abuse. Ms X home-schooled her children. In March 2018 Ms X applied to schools for her children to attend part time. She accepted places at a school over four miles away from her home. Ms X says she did apply for places at the nearest school because of an assault on her by a parent of a child who attends that school. Ms X says the Police cautioned the assailant. Ms X says the assault affected her children.
19. Ms X says she has mobility, physical and mental health issues. They live in a remote area with no public bus service to the school. So, Ms X says she finds it difficult getting her children to school unless by using taxis which she cannot afford. Ms X applied to the Council in March 2018 for home to school transport starting in September 2018 seeking a taxi service to get her children to and from school. The Council says it does not respond to applications until it assesses all applications for the new school year.
20. The Council wrote to Ms X refusing her application 17 working days before the start of the new term in September 2018. This was due to Ms X’s children not attending the nearest suitable school. The Council advised Ms X of her rights to challenge the decision.
21. Ms X appealed in August 2018. The Council asked Ms X to send more information to support her challenge. Ms X sent information on 25 September 2018. The Transport Entitlement team found there were spaces at Ms X’s nearest school in the year groups for her children.
22. The INTG considered Ms X’s challenge in October 2018. The Council’s notes of the meeting say the panel considered all the evidence provided and there were spaces at the nearest suitable school for the children. It considered Ms X did not provide evidence showing why they could not attend that school. There was no evidence submitted from professionals such as the police or social workers about the alleged assault with the only details coming from Ms X. Although Ms X stated police involvement there was no evidence provided of this. The panel said the school the children were attending was not the nearest, so Ms X’s application was outside Council policy. The Council wrote to advise Ms X of the decision not to uphold her appeal.
23. In responding to my enquiries about the complaint the Council has offered to refer Ms X’s case to the Education Appeals Committee for resolution. Ms X can make verbal representation to the Committee. The Council says the appeal will be heard on the evidence previously submitted.

My assessment

24. The government’s statutory guidance says Council’s should have a two-stage appeals process for parents to challenge decisions on home to school transport applications on grounds such as eligibility and exceptional circumstances. The first appeal is a review by a senior officer and then a review by an independent appeal panel. The guidance clearly states the independent appeal panel will consider written and verbal representations from parents.
25. The Council’s guidance for appeals on home to school transport explains how it will consider challenges to decisions on eligibility for school transport. In this the Council has created a separate route for applicants who fall outside its statutory responsibility to provide home to school transport. The Council says it does so as the government’s guidance does not define any separation of cases where pupils are outside of the Local Authorities policy. The Council does not allow for verbal representation to this panel.
26. The statutory guidance does not separate out those applicants who fall outside a Council’s statutory responsibility. Therefore, the Council’s policy does not follow government guidance by doing so.
27. Ms X appealed against the Council’s refusal to provide her children with transport and advised her case would go to the INTG. However, Ms X did not have the opportunity to attend the panel hearing to give verbal representation due to the Council’s policy. This goes against the statutory guidance issued by the Government which says stage 2 panels should consider written and verbal representations from parents. As Ms X was unable to attend, the panel could not consider her verbal representation.
28. So, I consider there has been fault by the Council in the way it considered Ms X’s appeal for home to school transport. This has caused an injustice to Ms X as she has not been able to present her case to the independent review panel. So, has suffered a loss of opportunity.
29. The Council has offered for Ms X’s case to be heard by the Education Appeals Committee as a resolution albeit on evidence previously submitted. While I consider this is a suitable resolution in this case the appeal should be heard on any evidence Ms X wishes to submit including any fresh evidence she presents to the Committee.

Agreed action

30. To remedy the injustice caused by the fault I have identified the Council has agreed within one month of the date of my final decision to:
• Apologise to Ms X for the lost opportunity to make verbal representations to the INTG.
• Arrange for Ms X to attend a hearing of the Education Transport Appeal Committee and present her case.
• If the appeal is upheld the Council will refund any travel expenses evidenced by Ms X in taking her children to school since September 2018.
31. Within two months of the date of my decision the Council has agreed to:
• Review its Home to School Transport appeals policy to ensure it is in line with the statutory guidance and provide a copy of the revised policy. In the meantime, the Council will ensure all appellants at Stage 2 are given the opportunity to make verbal representation.

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Final decision

32. I am completing my investigation. I have found fault by the Council as its Home to School Transport appeals policy does not follow statutory guidance. I have recommended a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman