Summary: Mr F complains the Council refused his request for free home to school transport for his daughter, G. The Ombudsman does not decide whether the Council should provide school transport for Mr F’s daughter, G. However, Mr F has not had an opportunity to present his case to an appeal panel. The Council has offered to invite Mr F to appeal, and to review its appeals process.

The complaint

1. Mr F complains the Council refused his request for free home to school transport for his daughter, G.
2. Mr F is unhappy with the Council's response to his challenge to the decision.

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What I have investigated

3. The Ombudsman does not decide whether the Council should provide transport for Mr F’s daughter, G. My job is to check the Council considered Mr F’s appeal properly.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have considered:
• information provided by Mr F;
• information provided by the Council;
• the Education Act 1996; and
• Home to school travel and transport guidance. Statutory guidance for local authorities issued by the Department for Education in 2014.
7. I invited Mr F and the Council to comment on my draft decision.

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What I found

What happened

8. The Council refused Mr F’s application for free home to school transport because the school G attends is neither the nearest nor the designated school for transport purposes.
9. Mr F challenged the Council’s decision.
10. The Council responded to Mr F’s “Stage 1 challenge” and, when he remained dissatisfied, responded at the first stage of the corporate complaints process.
11. The Council declined to consider Mr F’s complaint further. Mr F remained dissatisfied and complained to the Ombudsman.

Home to school transport

12. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
13. 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. (Education Act 1996, Schedule 35B)
14. 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. (Education Act 1996, section 444(5))
15. The nearest 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.
16. Councils also have powers to provide transport for pupils who are not eligible children.
17. Statutory guidance says councils should have appeals procedures for parents who wish to appeal about the eligibility of their child for school transport. The procedures should be published alongside the council’s travel policy statement.
18. The guidance says, “in the past we have left it to local authorities to determine how their appeals process should operate in practice. However, in the interests of consistency and to be both clearer and more transparent, for both parents and local authorities, we have now set out a recommended review/appeals process.”
19. The recommended appeals process is a two-stage process. Stage one is review by a senior officer. Stage two is an independent appeal panel to consider written and verbal representations from the parent and officers involved.

The Council’s school transport policy and appeals process

20. The Council publishes information on its website explaining which pupils are eligible for school transport and how they should apply. The Council also publishes information for pupils and parents who have been refused transport and wish to challenge the decision.
21. My investigation focused on Mr F’s appeal.
22. The appeal process is described in a number of documents on the Council’s website. The process is more complicated than the two-stage process recommended by Government guidance.
23. The Council offers all unsuccessful applicants a review by a senior transport officer as the first stage of the review/appeal process.
24. Only parents whose child attends their nearest school, or who have been placed at a school by the Council, are eligible to appeal at the second stage of the process. The Council operates three different appeal panels for different groups of pupils, two composed of council officers and one of elected councillors. Parents are invited to make written representations to the appeal panels. Only if their appeal is considered by councillors can parents appear before the panel in person to make representations.
25. Parents whose child does not attend the nearest school are not entitled to an appeal at the second stage of the process. Instead, they may use the first stage of the Council’s corporate complaints process to challenge the senior transport officer’s decision at stage one.

Consideration

26. Mr F’s daughter, G, does not attend the nearest school. Mr F believes the Council should make an exception to its policy and provide transport even though G does not attend her nearest school. The Council has refused.
27. The Council arranged a review of its decision, but Mr F has not had an appeal or an opportunity to present his case in person to a panel. Under the Council’s policy, parents whose children do not attend the nearest school are entitled to a make a complaint but not an appeal.
28. In correspondence with the Ombudsman, the Council explained that it wished to manage parents’ expectations when it decided to restrict access to appeals. The Council said it did not want to raise expectations that it had the resources to fund transport to schools where there was no legal duty or ‘reasonable category of appeal’.
29. The Ombudsman has acknowledged the significant financial pressures councils face. Nevertheless, we must hold authorities to account against relevant legislation, standards, guidance and their own policies.
30. Statutory government guidance recommends a two-stage appeal process for parents who wish to challenge council transport decisions, with an opportunity for parents to present their case in person to an independent panel.
31. Councils must have good reason if they decide not to comply with recommendations in statutory government guidance. The Council’s decision not to offer everybody who wishes to challenge a decision an opportunity to appeal to an independent panel, and present their case in person, has the potential to erode rights which the Government clearly considers important.
32. I wrote to the Council to explain my concerns about its approach, and in particular the appearance the Council was ‘pre-judging’ cases when refusing parents a right of appeal to a panel.
33. In response to my enquiries, the Council undertook to:
• apologise to Mr F for his lost opportunity to make representations in person to an independent appeal panel;
• arrange a fresh appeal hearing and invite Mr F to present his case; and
• review its appeals procedures to ensure they are in line with statutory guidance. In the meantime, the Council will offer all appellants an opportunity to present their case in person to an independent panel at the second stage of its appeals process.

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Final decision

34. I welcome the Council’s positive response to my enquiries and undertakings to address the concerns I raised. I consider this a satisfactory response to Mr F’s complaint so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman