Summary: Mr B complains about the Council’s handling of his application for free school transport for his child and his complaint following this. The Council did not give Mr B the opportunity to make verbal representations during the two-stage appeal process, which is fault as it is not in line with statutory guidance. This has caused uncertainty for Mr B and his family. The Council has agreed to offer Mr B a fresh appeal and apologise for not responding to his stage two complaint. The Council has amended its policy to allow verbal representations at appeal since Mr B made his complaint to the Ombudsman.

The complaint

1. Mr B complains about how the Council has dealt with a school transport application he made for his daughter and his complaint following this. Mr B says the Council have used inaccurate information when calculating the travelling distances between his home and the schools and has failed to properly apply its school transport policy in his daughter’s case. He says the Council’s decision to refuse school transport for his daughter is unfair when it continues to provide this for his older son and other children from the same school as his daughter that live close by. This has caused financial strain, stress and uncertainty for Mr B and his family.

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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)

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How I considered this complaint

4. I have spoken to Mr B and considered the information he provided about his complaint. I have also considered the Council’s responses to my enquiries.
5. I have considered the Transport Policy for Children and Young People (2016) published on the Council’s website and the relevant legislation and guidance. This includes the Ombudsman’s focus report “All on board? Navigating school transport issues” (March 2017).
6. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

What should happen

Relevant legislation and guidance

7. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Section 508B, Education Act 1996)
8. ‘Eligible children’ are defined as:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk;
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if the school is between two and six miles (if aged 11-16 and there are not three or more suitable nearer schools) or the school is between two and 15 miles and is the nearest school preferred on the grounds of religion or belief (aged 11-16);

9. Government guidance says councils should provide transport to the nearest qualifying school. Home to school travel and transport guidance: Statutory guidance for local authorities, Department for Education July 2014 (the Guidance) does not say how councils should measure distance to determine which is the nearest qualifying school.
10. The Guidance recommends councils adopt the appeals procedure set out in Annex 2 in the interests of providing a consistent, transparent and clear process for parents and councils. Annex 2 suggests councils use a two-stage appeal process where the second stage is considered by a panel made up of members independent of the original decision-making process. The stage two appeal panel should consider written and verbal representations from both the parent(s) and officers involved in the case.

The Council’s procedure

11. The Council’s Transport Policy September 2016 (the Policy) says it measures the distance from the child’s residential address to the established pedestrian entry point to the school, using the ‘shortest available walking route’.
12. The Policy goes on to define the ‘shortest available walking route’ as:

“…the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. As such, the route measured may include footpaths, bridleways, and other pathways, as well as recognised roads.”

13. The Policy includes an appendix which sets out the walking route assessment criteria the Council use to calculate the distance between the child’s home and school.
14. The Council’s policy includes details of its two-stage review procedure. The policy says a Senior Officer will consider stage two appeals made by the applicant in writing. The policy is silent on the Senior Officer’s consideration of verbal representations from the parent(s) and officer(s) involved.

What happened

15. In June 2018, Mr B applied for free school transport for his daughter to attend the same secondary school (School B) as his older son. The Council refused Mr B’s application because similar provision in a secondary school (School A) was available closer to Mr B’s home address.
16. Mr B challenged the Council’s decision at the end of July 2018. He resubmitted the evidence he had provided to the Council when he had successfully appealed its decision to refuse free school transport for his son in 2016. Mr B said this was still applicable in his daughter’s case as it showed his chosen school was closer than the school the Council had deemed the nearest suitable school.
17. The Council responded to Mr B’s review request a few days later. It explained that it had identified an error in the way it had dealt with his previous appeal for his son. The Council said it should not have used the distance measure for a motorised vehicle route, because this should only be used where the eligible child is from a low income family (known as ‘extended eligibility’).
18. Mr B requested a stage two review of the Council’s decision shortly afterwards. He argued that School B was closer to his home address than School A using a straight-line measurement. In addition, he challenged whether the route the Council had used from his home to School A was safe as it included the use of narrow country lanes without pavements, where the national speed limit applied. He also questioned the Council’s use of the route to School A because he said a portion of the route was not accessible. Mr B asked the Council to apply consistency with its previous decision in his son’s case.
19. The Council completed its stage two review and wrote to Mr B to inform him it was upholding its earlier decision to refuse free school transport for his daughter to attend School B. The Council explained that its measuring system had calculated the route to School A at a distance of 6.248 miles and to School B at 6.334. It also explained that even if it excluded the part of the route to School A because it was not accessible, School A would still be closer, at 6.323 miles, than School B. The Council confirmed it would not be reassessing the free transport it gave to his son.
20. Mr B wrote again to express his dismay at the Council’s stance in his daughter’s case. He said it was inconsistent with the decisions the Council had taken for other children in his area. Mr B pointed out that the stage two review neglected to mention the straight-line measurement to both schools, which he suggested was a better method of measurement as it was clear and might help the Council avoid challenges like his in the future. Mr B said his measurement of safe walking routes to both schools showed School A was more than seven miles away from his home address and School B was 6.23 miles away. Mr B said School B was closer to his home address based on all the routes he had measured using straight line distances, motorised vehicle route and safe walking route. Mr B said the Council was not exercising discretion or flexibility when applying its policy in his daughter’s case, which was inconsistent with the guidance issued by the Ombudsman within its focus report (All on board? Navigating school transport issues).
21. The Council responded to Mr B under its complaints procedure because it had reached the end of the two-stage review process. The Council reiterated its earlier explanation that motorised vehicle route distances were only used in extended eligibility cases. While the Council acknowledged it had made an error when it overturned the decision for Mr B’s son, the Council was not willing to make the same exception in his daughter’s case. The Council also explained that other children living locally to Mr B had received free school transport because the parents had applied before the Council had changed the system it used to measure route distances to within a two metre accuracy. The Council’s response ended by signposting Mr B to the second stage of the complaints procedure if he remained dissatisfied.
22. Mr B responded to escalate his complaint to stage two about a month after the Council’s stage one response. Mr B contacted the Council to chase the response to his stage two complaint in December 2018 because he had not heard from the Council for nearly two months. The Council’s Complaints Team dealt with Mr B’s contact. It discovered Mr B’s escalated complaint had not been passed on in October. The Council apologised for this and offered to investigate Mr B’s complaint under stage two of its complaints process in January 2019. Mr B decided to approach the Ombudsman about his complaint instead.

Was there fault causing injustice?

23. The Council’s free school transport review procedure is largely consistent with the process recommended in the Guidance in that it has two stages, the first stage is considered by an officer panel that were not involved in the original decision. While the Council says applicants should make their review requests in writing at both stages, it makes no mention of verbal representations to the officer panel or the Senior Officer at stage two.
24. Mr B was not invited to make verbal representations at stage one or two of the review process. The Guidance clearly states parents should be given this opportunity. There is fault in the Council’s policy as it does not offer parents the opportunity to present their arguments to the panel verbally. Verbal representations can often be more powerful than written submissions. I have to consider if giving Mr B the opportunity to make verbal representations to the appeal panel would have made a difference to the outcome.
25. Mr B has made challenges to the Council’s decision in his daughter’s case that directly reference the Guidance and the Council’s own free school transport policy. He has tried to show how the routes used by the Council to both schools are flawed in various ways.
26. The Council has not addressed Mr B’s point about how its system only used safe walking routes along roads to calculate the distance in this case, when its policy says it will also use ‘footpaths, bridleways, and other pathways, as well as recognised roads’.
27. The Council’s notes show that while it considered Mr B’s point about the suggested walking route to School B, but decided this was not suitable because parts of it used grassed pathways that are not available all year round due to their physical condition. This is not in line with the Council’s walking route assessment criteria which does not include consideration of the condition of the route all year. The Council is at fault for not explaining to Mr B why it has only used roads when calculating the route to his daughter’s chosen school (School B) and why it considered his suggested route unsuitable.
28. The difference between the distances measured to each school is so small that there is a chance that verbal representations might make a difference to the outcome in Mr B’s case. The Council should offer Mr B another opportunity to have his appeal reheard and be invited to make verbal representations to the decision maker(s). While there is no guarantee the fresh appeal will change the eventual outcome, this would place Mr B back in the position had there not been fault in the Council’s process. It would also remedy any uncertainty that a different outcome may have resulted had Mr B been given the opportunity to present his case verbally.
29. Since Mr B made his complaint to the Ombudsman, the Council has revised its policy and this now includes provision for parents/carers to make verbal representations to the appeal panel at stage two of the review process. I welcome this action and the recommendation made in my draft decision has been removed to reflect this.
30. Mr B escalated his complaint to stage two of the Council’s procedure in October 2018 and according to its procedure, the Council should have responded in 20 working days. The Council did not respond to Mr B’s stage two complaint on time because his concerns were not referred to the relevant team. While the Council has since offered to consider and respond to Mr B’s complaint, he felt by this point that he needed to take his complaint to the Ombudsman instead. This has caused frustration and inconvenience to Mr B, which could have been avoided if the Council had dealt with his complaint correctly in October.

Agreed action

31. Within one month of my final decision, the Council has agreed to:

• arrange to rehear Mr B’s stage two appeal, where he will be invited to make verbal representations. If Mr B’s appeal is successful, the Council should consider refunding the travel costs Mr B has incurred for his daughter’s transport to School B; and,
• apologise to Mr B for the frustration and inconvenience caused by the oversight that meant it did not deal with his stage two complaint on time.

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Final decision

32. I have completed my investigation and uphold Mr B’s complaint about the Council’s handling of his school transport appeal and stage two complaint, which caused uncertainty and frustration. The Council has accepted my recommendations to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman