Hampshire County Council (18 014 014)

Category : Education > School transport

Decision : Not upheld

Decision date : 14 May 2019

The Ombudsman's final decision:

Summary: There is no fault in relation to this complaint that a school transport appeals panel failed to properly consider Mr F’s appeal against a decision by Hampshire County Council to withdraw home to school transport.

The complaint

  1. The complainant, whom I shall refer to as Mr F, complains that the Council’s second consideration of his appeal against a decision to withdraw home to school transport for his son was flawed. Specifically, he says the panel failed to properly satisfy itself that the safety of the route was of an acceptable standard both in terms of traffic and roads on the designated route and safety related to concerns he raised related to emergencies emanating from a nearby nuclear power facility.
  2. Mr F also complains the panel failed to properly consider whether the updated home to school distance measurements were accurate or measured reasonably.

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The Ombudsman’s role and powers

  1. 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)
  2. 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 discussed the complaint with Mr F and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
  2. I gave the Council and Mr F the opportunity to comment on my draft decision before reaching my final decision.

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What I found

  1. 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.
  2. 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.
  3. 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.

Background

  1. The Council wrote to Mr F in November 2017 withdrawing his son’s home to school transport stating the reason for this was that it had been wrongly provided up to that point. The reason for this was that the home to school distance was below the statutory three mile distance criterion.
  2. Mr F appealed against this decision on the grounds of the route the Council had identified and its measurement and safety. The appeal was rejected and Mr F complained to us about this. We investigated this complaint under reference 18004125 and found fault including the identification of the start and end points of the home to school distance measurement and of the record of the appeal hearing. In order to remedy these faults we asked the Council to arrange a further appeal hearing. Mr F’s current complaint relates to the panel’s consideration at this second appeal hearing.

What happened

  1. The Council wrote to Mr F in October 2018 to give him the date of the appeal so providing nearly three weeks’ notice. Around a week before the further appeal hearing, the Council provided Mr F with a copy of the agenda and evidence that would be presented to the panel. This included:
    • a report from the director of the children’s services department;
    • a copy of the assessment report of the walking route completed by a senior road safety officer who walked and inspected the route in January 2018. This incorporated a record of the traffic observed on the route and details of accidents on the route between 2012 and 2017. The recorded decision of the officer was that the route was safe;
    • a copy of guidelines on assessing school walking routes;
    • details of Mr F’s grounds of appeal in a report he compiled which related to the route measured, the safety of the identified walking route and the risk caused by a nearby nuclear facility; and
    • a copy of the Ombudsman’s decision on complaint reference 18004125.
  2. Before the hearing I note the agenda stated that the panel members would walk the route.
  3. The appeal hearing took place in November 2018. The contemporaneous notes of that appeal demonstrate that the panel:
    • heard evidence on behalf of the Council which included an account of the rolling review of school transport provision and the withdrawal of transport for those whose home to school distance was measured as being less than three miles. It confirmed the Council considered the identified route was safe and that the route had been re-measured according to the Ombudsman’s earlier findings so that the start point was the edge of the home property to the gate of the school. Having done this the route remained less than three miles. The officer confirmed that Mr F could purchase a place on a bus service at a cost of £600 a year;
    • heard evidence from Mr F and his wife, Mrs F, who again queried the measurement of the route stating that an additional distance to a traffic-lights-controlled pedestrian crossing should be included and this would make the route safer and increase the distance measurement. They also stated that the route was within an emergency zone in relation to the nearby nuclear plant and this meant that in an emergency people were advised to seek indoor shelter within five minutes; and
    • considered a number of questions and answers about the route, its measurement and safety on the route in a discussion that included council officers and Mr and Mrs F.
  4. In reaching a decision the notes of the hearing show that the panel took account of relevant policy, the start and end points used to complete the home to school distance measurement (the panel accepted that the measurement points from the edge of the property to the school gate was correct under the guidelines), noted that the road safety officer assessed the defined route as safe and included their own observations of the route as they had walked it in advance of the hearing. In relation to the risk posed by the nearby nuclear facility the panel made a variety of comments regarding the location of housing in the area, that people must be more than five minutes from home locally if out, that outside activity was encouraged in the areas evidenced by the existence of playparks and fitness areas and that it was a personal safety matter outside of the scope of the panel to consider. In conclusion they decided that the way the distance had been measured was “generous” and still did not amount to three miles and the safety issue had been addressed with particular consideration given to the crossing point that Mr F highlighted to be of particular concern. The panel did not uphold the appeal.
  5. The appeal manager wrote to Mr F with the decision on the appeal around two weeks after the hearing. He confirmed the appeal had not been upheld and provided a copy of the minutes/notes of the meeting which included an account of the discussion at the hearing and of the grounds for the panel’s decision.

Was the Council at fault and did this cause injustice?

  1. I am satisfied that the panel considered Mr F’s appeal thoroughly. In response to our earlier decision it had re-measured the home to school distance using the point at which the property joins the road at home and the nearest school gate at the school. I would not agree with the panel’s comments that they amount to “generous” but these are acceptable points to measure from and to. I am aware that Mr F considers the measurement at home should start from the front door to the house and end at the classroom. We would not expect a council to measure from the front door of a house (unless this is the point at which the property meets the highway) or to the child’s individual classroom and consider measurement from the point at which the curtilage of the property meets the road to the nearest school gate is entirely acceptable. I do not therefore consider there is any fault in the start and ends points used by the Council to calculate the distance measurement.
  2. In relation to the safety of the route I note the panel members walked the route so were in a position to be fully aware of the route, roads and traffic flow between 7.30 and around 8.30 which would be the usual time the route would be walked in the morning. They were also provided with the road safety officer’s assessment and report from 2018 and information about the traffic volumes and accidents on the roads on the route over a five year period. The panel therefore had a lot of information on which to base its consideration of this point. The road safety officer considered the route safe, the assessment of the traffic flow indicated that traffic volumes were low to medium and there had been one minor accident involving a child on the route over the last five years. Taking this into account together with their own observations and experience of the route the panel members considered the route was safe and it is clear that they had a large amount of information on which to base this decision. There are no grounds for me to consider there was fault in the way the panel reached its decision on this. It is not for me to consider the merits of this decision (whether the decision was right or wrong) in the absence of any evidence of fault in the way it was reached.
  3. In relation to Mr F’s concerns about the risks of an emergency at the nuclear facility the panel looked at whether it could or should take account of this but concluded that consideration of risks of an emergency at the facility in relation to school transport was a matter outside its remit. I would agree this is the case as it is outside what a panel considering school transport would ordinarily consider. In addition it would also imply that no child should be completing a walk of more than a very short distance to school if this would mean they were more than five minutes from “shelter”. It seems clear this is not the case. The panel noted that outside activity was encouraged in the area and that there is a lot of housing and therefore, I assume, encouragement of people to live in the area.

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Final decision

  1. There is no fault in the handling of Mr F’s appeal against the decision to withdraw free home to school transport.

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Investigator's decision on behalf of the Ombudsman

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