The Ombudsman's final decision:
Summary: Mr Y complains about the Council’s decision to withdraw an offer of free home to school transport for his daughter, X. He says the Council’s approach is unfair and inconsistent. Mr Y also complains about the conduct of the subsequent appeal hearing against the Council’s decision. The Ombudsman does not uphold the complaint because there is no evidence of procedural fault and so we cannot question the merits of the Council’s decision.
- The complainant, whom I will call Mr Y, complains about the Council’s decision to withdraw an offer of free Home to School Transport for his daughter, whom I will call X. Mr Y also complains the Council applies its eligibility criteria unfairly and inconsistently, as a nearby resident has qualified for free transport.
- Mr Y appealed the Council’s decision to withdraw the offer of free Home to School Transport, and he complains about the conduct of that hearing.
- Mr Y says that X has suffered an injustice because the Council has denied her transport assistance which he believes she is entitled to.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- During my investigation I have considered the information submitted by Mr Y and given him the opportunity to discuss the complaint with me by telephone.
- I also made enquiries of the Council and considered its response, as well as the relevant law and guidance around free home to school transport.
- I issued a draft decision and considered any comments received from Mr Y and the Council before making a final decision.
What I found
What should happen
- Councils must make ‘suitable travel arrangements’, as they consider ‘necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
- 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’.
- ‘Eligible children’ are defined in Schedule 35B of the Education Act (1996) as:
- living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
- 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
- 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
- entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if:
- living more than two miles from the nearest suitable school (for children over eight and under 11);
- living between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
- living between two and 15 miles from the nearest preferred school, based on grounds of religion or belief.
What happened: withdrawal of free home to school transport
- Mr Y lives in a village in the Council’s area. The Council initially decided that all children within the village were eligible for free home to school transport upon transferring to a local secondary school (which I will call ‘school a’) because it is the closest available school and exceeds the statutory walking distance. X lives, according to the Council’s calculations, 8.56 miles from school a. The Council confirmed this in its letter offering a place to X at school a on 1 March 2018.
- Mr Y appealed, and then complained to the Ombudsman, after the Council withdrew the offer of free transport in June 2018. The Council explained: “[X] is not entitled to transport to [school a] as your nearest available school at the time of application was [school b], 5.684 miles from your home address”
- The last place offered at school b was to a pupil living 5.878 miles away. On reviewing some applications, the Council identified that, had Mr Y named school b on the school application for X, she would have received a place because she lives closer than the last applicant offered. Therefore, as school b was the nearest school with space at the time transport eligibility was considered, the Council decided that X was not eligible for transport to school a and withdrew the offer.
- The statutory government guidance, ‘Home to School Travel and Transport’ confirms that councils will identify the nearest available school at the point of considering transport eligibility: “At the point when transport eligibility is considered, 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 “
- The Council’s information booklet provides the following information to applicants: “If free transport is offered in error, because of a mistake made by the Council, the free travel will be withdrawn after a notice period of not less than 6 weeks”.
- In recognition of the distress caused by the error, the Council agreed to fund transport for the affected pupils for one academic year. X therefore receives funded transport currently, but this will cease in July 2019 when she finishes academic year seven. The Council expects Mr Y and other affected families to make their own transport arrangements from September 2019.
- Mr Y considers the Council applied its eligibility criteria unfairly and inconsistently. In his complaint, Mr Y describes how a child living directly opposite his home has received an offer of funded transport because the “seed point” in their house is fractionally further from school b.
- The Council’s transport policy states: “The start point of a measurement is the ‘seed point’ of the home address. The ‘seed point’ is provided by Ordnance Survey from information compiled from Royal Mail and/or district or city councils. The seed point normally falls within the bounds of a property. The accuracy of seed points is to the nearest ten centimetres. It is possible to move the location of an individual seed point, but this is not necessary for most addresses. It is not possible to verify the individual location of every seed point prior to measuring due to the number of addresses in Oxfordshire and surrounding areas”.
- Mr Y also argues the Council should not use pedestrian routes when measuring distances from home to school, because in X’s case the distance to school is significantly further than the statutory walking distance and is not walkable. Therefore, he says it is unfair to consider her application against the shortest walking route because this is not a feasible way for X to get to school.
- The statutory guidance states: “The measurement of the statutory walking distances is not necessarily the shortest distance by road. It is measured by the shortest route along which a child, accompanied as necessary, may walk safely. As such, the route measured may include footpaths, bridleways, and other pathways, as well as recognised roads”
“The 2 mile limit for extended rights should be measured in the same way as the statutory walking distances. However, the 6 mile upper limit to a choice of schools, and the 15 mile upper limit to a school preferred on grounds of religion or belief are not walking routes, and should therefore be measured along routes that are passable using a suitable motorised vehicle. In short, the upper limits should be measured along road routes”
My analysis: withdrawal of free home to school transport
- I appreciate that it would be upsetting for the affected families to receive confirmation from the Council that it had withdrawn the previous offer of funded transport. However, there is nothing within the law or guidance which prevents councils from withdrawing offers made in error. But the Ombudsman would expect that any withdrawals are made in a timely way to minimise the distress to those affected. The appeal panel noted some concerns about the Council’s communication with affected parents because the Council made its offer in March 2018 but did not withdraw the transport until June. However, its own booklet tells applicants it will provide six weeks’ notice of any withdrawal. The Council complied with these timescales so I cannot conclude that there is any procedural fault.
- I am also mindful the Council has granted free transport for one academic year in recognition of the effects of its mistake. So, even if there were fault in the process around the withdrawal, the Ombudsman would not propose any further remedy.
- I have also considered Mr Y’s complaint about the route and method of measurement used by the Council. This point was carefully considered by the appeal panel. For the reasons explained in paragraph 27 of this statement, I have not re-considered matters which have already been before an appeal panel. I have, however, considered Mr Y’s allegation about the offer of transport made to a nearby pupil because he was not able to include this in his appeal.
- I asked the Council to provide details of the pupil in question. I am not able to share these records with Mr Y as it would breach the confidentiality of a third-party; however, he should be assured that I have considered them carefully and independently before reaching my view. The information shows the pupil, according to the Council’s measurements, lives further away from school b. That pupil would not have received an offer of a place at school b, had they named it as a preference on their school application. School a is, and was, their nearest available school and exceeds the statutory walking distance. As such, they receive free transport.
- I appreciate Mr Y and others refute the measurements used by the Council and have instead provided routes from online maps, however the home to school distance must be measured using the Council’s system and in line with its policy. This is to ensure consistency across the county. Any other routes calculated by parents are irrelevant to the Council’s considerations.
What happened: appeal against the withdrawal of free home to school transport
- Mr Y appealed the Council’s withdrawal of its offer. As paragraph four of this statement sets out, the Ombudsman does not question the merits of decisions properly made. We may consider the conduct of an appeal hearing, but we are not a second appeal and we do not consider the merits of the argument afresh. Instead we investigate whether there is evidence of procedural fault in the conduct of the appeal and, if so, whether that fault undermines the appeal panel’s decision. In such cases, we may ask the Council to conduct a fresh appeal with a different panel.
- I have considered Mr Y’s concerns about the conduct of the appeal hearing. These are summarised as:
- The Council pre-determined its decision. The decision to refuse X’s appeal was made within hours of the hearing, but the written response arrived nine days later.
- The Council did not allow him to present data concerning other eligible families to support his argument about inconsistency.
- The Council submitted a summary sheet containing additional information five minutes before the appeal hearing, despite the deadline for the submission of new information being two weeks earlier.
My analysis: the appeal
- I have read Mr Y’s appeal submission, the Clerk’s minutes of the appeal hearing and the appeal refusal letter. Mr Y has not provided any evidence to support his claim of pre-determination. Based on the records I have seen, I find no evidence of pre-determination as Mr Y suggests. Instead, the notes show the panel deliberated before reaching its conclusion. The panel showed no signs of already having made its decision.
- Furthermore, I do not find fault with the Council for refusing Mr Y’s request to present data concerning other families. The purpose of the appeal was to discuss his case. The Clerk’s notes show some general discussion around other eligible households, but the panel did not uphold this argument. So, although specific data could not be presented in the interests of preserving the privacy of the third-party, I am satisfied this general point was considered properly by the panel.
- Mr Y also raises concerns about the late submission of additional paperwork by the Council on the day of the hearing. The Council’s response to my enquiries, as well as the Clerk’s minutes, show the Council submitted a ‘summary sheet’ just before the hearing. Mr Y was given 30 minutes to read the sheet before the hearing started.
- The Council’s ‘Guide to School Transport Appeals’ says “You may submit additional information at any stage and a timetable for the submission of evidence will in any case be sent to you at the time you are notified of the date of your appeal … However, if you bring a lot of written information/evidence on the day of the appeal hearing, you should be aware that the Appeal Panel might have to adjourn your appeal to later in the same day (or even another date) so that they, and the presenting officer, have the opportunity to read this additional evidence to ensure that they give it proper consideration…In addition, it may be necessary to adjourn the hearing to a different date if significant information is received less than three working days before the hearing, which the appeal panel considers may need further investigation or which the LA may need time to respond to”
- In an email to appellants on 2 August 2018, the Council confirmed: “... the final deadline for sending information is Monday 20 August”
- Mr Y is therefore correct to point out that the Council submitted paperwork after the final deadline. However, as the guide sets out, it is for the panel to decide whether to adjourn a hearing to allow further time to review new paperwork. In this case, the Clerk’s note show all appellants had 30 minutes to read the papers. The notes do not record any objections to this approach, or a request from any of the parties to adjourn the hearing. For this reason, I do not consider Mr Y was caused any significant injustice by the Council’s submission of late information. Nor do I feel the late submission impacted upon the panel’s decision to refuse transport for X.
- I have completed my investigation with a finding of no fault for the reasons explained in this statement.
Investigator's decision on behalf of the Ombudsman