Summary: The Council was not at fault in its consideration of Ms B’s appeal against its refusal to provide home-to-school transport to her children. It correctly applied the law and fully considered its discretionary powers. As a result, I cannot question its decision.

The complaint

1. The complainant, whom I refer to as Ms B, complains about the Council’s refusal to provide home-to-school transport for her children.

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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 considered information from Ms B and the Council. I wrote to Ms B and the Council with my draft decision and considered their comments.

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What I found

Law and guidance

The Education Act 1996

5. Section 508B of the Act places duties on councils to ensure that suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school.
6. Section 508C provides councils with discretionary powers to go beyond their statutory duties and provide transport for children who are not entitled to free transport.
7. Schedule 35B of the Act sets out eligibility for children who, based on their parent’s income, qualify for free school meals. Paragraph 12 says a child is eligible for home-to-school transport assistance if:
• They are aged 11 or over;
• They attend a school which is between two and 15 miles from the family home;
• Their parent has expressed a wish, based on religion or belief, for them to be educated at that school; and
• Having regard to the parent’s religion or belief, there is no suitable school which is nearer to the child’s home.

Home to school travel and transport guidance

8. This document provides statutory guidance to councils on how to decide eligibility for transport assistance. It says that, when deciding the shortest distance to a school which has been chosen because of religion or belief (and therefore is a maximum of 15 miles away), the route should be measured along roads rather than walking routes.
9. This statutory guidance says the maximum length of a journey for a child of secondary school age should be 75 minutes.

The Council’s transport policy

10. The policy says all parents are advised to apply to the nearest suitable school if they wish to be considered for travel assistance.
11. The policy says no discretionary transport to schools chosen for reasons of religion or belief will be provided. However, it says parents of non-eligible children can apply for transport assistance if there are exceptional circumstances.
12. The policy lists circumstances that might be considered ‘exceptional’ in deciding whether to provide discretionary transport. It says work or study preventing the parent from taking their child to school is unlikely to be considered exceptional.

What happened

Ms B’s application and appeal

13. On 28 August 2018 Ms B applied to the Council for transport assistance. On 30 August the Council said her children were not eligible for assistance because their school was not the nearest Catholic school to the family home.
14. On 31 August Ms B appealed the Council’s decision. She said:
• The Council’s distance calculator – which measures the walking distances to schools – should not apply when a school is too far away to walk;
• The difference in distance between the two schools is negligible (only 0.1 miles);
• Her chosen school is single-sex and the nearest school is not, so they are not comparable;
• Many children from her son’s primary school go to her chosen secondary school; and
• She is on a low income.
15. On 14 September the Council held a panel hearing to consider Ms B’s appeal.

The panel hearing

16. The panel considered Ms B’s alleged exceptional circumstances, map data provided by the Council, and national and local guidance.
17. The panel noted that Ms B’s chosen school was further away from the family home than the other school.
18. The panel confirmed that Ms B is on a low income; however, it also said that – even though she is on a low income – her chosen faith school must still be the nearest to the family home if her children are to qualify for transport assistance.
19. During the hearing, the Council confirmed that it does not provide discretionary transport to any children attending a chosen faith school. However, it still provides transport when it has a statutory duty to do so.
20. The panel said the difference in distances between the two schools was more than 0.1 miles.
21. The panel noted that there were other children in the Council’s area attending Ms B’s children’s nearest Catholic school, and the Council considers the route to the school to be safe, and only slightly over the 75-minute recommended journey time.
22. The panel recorded that councils have no duty to make travel arrangements based on a parent’s preference for single-sex education.
23. The panel decided Ms B’s appeal should not be upheld. The Council wrote to her on 26 September and notified her of this, saying she had “no exceptional circumstances … that would merit a discretionary award”.

Ms B’s complaint to the Ombudsman

24. Ms B wrote to the Ombudsman in November 2018 and asked that we investigate her complaint. In addition to her grounds of appeal, she said:
• The school bus service to her chosen school takes much less time than public transport to the nearest school (to which there is no school bus), and only costs £0.50 per week more, which she would pay;
• The nearest school does not hold masses, which means that her children (if they attended) would not receive a strict Catholic education;
• Her chosen school is better than the nearest school;
• The Council failed to give detailed reasons for its decision;
• Driving her children to school affects her ability to earn an income, and is expensive; and
• The Council failed to consider her request for discretionary transport assistance based on exceptional circumstances.
25. In later correspondence, Ms B also said the Council had failed to provide evidence of how it calculated the distances between her family home and the two schools.

Analysis

26. It is not my role to decide whether a council should provide home-to-school transport to a child. However, I can consider whether a council has complied with law and statutory guidance, has considered an applicant’s circumstances fully, and has properly considered the use of its discretionary powers.
27. I also cannot question a council’s decision if it is properly made. However, if I find fault with how a council has made a decision, I may recommend that it reconsiders that decision.
28. Many of Ms B’s grounds of appeal are not relevant considerations for the provision of home-to school transport. The Council does not have to consider a parent’s preference for single-sex education, their opinion about the religious authenticity of different schools, or any perceived disparity in the quality of education offered by the schools. The number of other children from a child’s primary school who attend a secondary school is also not relevant to transport provision.
29. The primary reason for the Council’s refusal to provide transport is because Ms B’s chosen school is not the nearest to the family home.
30. Ms B says the difference in distance is negligible, and queried how the Council has worked it out. However, it is clear that the Council is correct, and Ms B’s chosen school is not the nearest. This is using driving distances, rather than walking distances, as recommended by the statutory guidance.
31. This means that, as set out by the Education Act, Ms B’s children are not eligible for home-to-school transport.
32. However, the Council still has powers to provide discretionary transport for children who are not eligible. If a parent (as part of an appeal) says there are exceptional circumstances, the Council must consider them.
33. I was concerned that the Council’s transport policy says it does not provide discretionary transport to and from faith schools. This implies that the Council would not consider exceptional circumstances, and would simply issue a blanket refusal.
34. However, in Ms B’s case – and despite what the policy says – the Council’s appeal panel did consider Ms B’s individual circumstances, even though her children are not eligible for transport.
35. In her appeal, Ms B told the panel that the Council should provide transport to her children because she has a low income. However, the Council had already applied Schedule 35B of the Education Act (which relates to children on free school meals), and said it would provide transport to the nearest faith school, up to a maximum of 15 miles away from the family home.
36. In doing this, the Council showed a clear consideration of Ms B’s income. However, it still expected her children to go to their nearest faith school, in line with the Act.
37. The Council’s policy also says a parent’s transport arrangements (and their consequent impact on the employment of that parent) are unlikely to be considered ‘exceptional circumstances’.
38. The Council decided that Ms B’s income and employment situation did not warrant the provision of discretionary transport. I have not found fault with this decision.
39. Ms B also said that the journey to the nearest school on public transport is too long, whereas there is a (much quicker) school bus to her chosen school. She said she would fund the school bus over and above what the Council would have to pay for a bus pass to the nearest school.
40. Although I acknowledge that, in Ms B’s view, this would be a sensible solution, the panel considered this and decided that the journey to the nearest school would only be slightly over the 75-minute journey time limit recommended by the statutory guidance. It decided that, as a result, it was not an unreasonably long journey for the children to take.
41. I cannot question a council’s decision if it is properly made. Given that the 75-minute limit is recommended (rather than statutory), and as the appeal panel considered this matter fully, I cannot question its decision.
42. Although Ms B says the Council failed to fully explain its decision, I note that it told her that her chosen school was not the nearest school, and said there were no exceptional circumstances which would justify the provision of discretionary transport. This adequately explains the reasons for the Council’s decision.
43. As a result, and because the Council correctly applied the law and fully considered its discretionary powers, I have not found that it was at fault.

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Final decision

44. The Council was not at fault in its consideration of Ms B’s appeal against its refusal to provide home-to-school transport to her children. It correctly applied the law and fully considered its discretionary powers. As a result, I cannot question its decision.

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Investigator's decision on behalf of the Ombudsman