Summary: Mrs X complains about the Council’s decision to withdraw its discretionary scheme funding school transport for pupils attending local grammar schools. The Ombudsman found no evidence of fault in the Council’s decision-making process. It phased in the changes and made sure parents were aware in good time before the school admissions application deadline.

The complaint

1. Mrs X complains about the Council’s decision, from September 2019, to withdraw its discretionary scheme funding school transport for pupils attending local grammar school. This means she will have to pay for her daughter’s transport to school instead.

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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 spoke with Mrs X and read her letters to the Council setting out her complaint. I then wrote to the Council to ask for information in support of my investigation. I have reviewed the material it sent in response.
5. I have taken account of:
• the relevant sections of the Education Act 1996;
• the statutory guidance issued by the Department for Education (DfE), called ‘Home to school travel and transport guidance - Statutory guidance for local authorities’; and
• the Council’s ‘Education home to school transport policy’.
6. I shared a copy of my draft decision with Mrs X and the Council and I invited them to comment on it.

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What I found

The law, statutory guidance and Council policy

7. The Education Act 1996 places a duty on councils to provide free school transport for all pupils of compulsory school age (5-16), if their nearest suitable school is beyond two miles (below age of 8) or beyond three miles (aged between 8 and 16). Where parents choose a school more than three miles away, and places were available at a closer school, councils do not have to fund the child’s transport arrangements.
8. DfE statutory guidance says the nearest suitable school is, “taken to mean the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child…”
9. The statutory guidance also says councils have, “discretionary powers to go beyond their statutory duties and provide transport for children who are not entitled to free transport.” It accepts they have to, “…balance demands for a broad range of discretionary travel against their budget priorities”.
10. The Council’s policy says, “every address…has a designated area (catchment) school, for both primary and secondary aged pupils. The designated school is the school which the local authority considers to serve the home address of the pupil.”

Mrs X’s Complaint

11. Mrs X and her children live in a village within the Council’s area. There are two grammar schools in the area and Mrs X already has children at one of them. Mrs X’s daughter is due to start at the same school imminently.
12. The Council says, historically, the village Mrs X lives in was within the catchment area of a local authority secondary school which was more than three miles away. This meant it had a duty to fund transport to school arrangements for children attending there from the village. The Council says it decided, as a discretionary arrangement, to extend that funding to the two grammar schools. This was because a child attending a grammar school would otherwise have likely taken a place at the local authority secondary school.
13. From September 2018, the Council made changes to the school catchment areas. It says it did this because the rising population in one of the county towns was creating an imbalance. The catchment area covering the village Mrs X lives in also had to change because a new academy school had opened. This new school became its designated secondary school and, as it is less than three miles away, the Council no longer had to pay for transport arrangements.
14. The Council says it decided to remove the reciprocal arrangement to fund transport to the grammar schools from September 2019. The decision was taken by its ‘All Age Transport Project Board’. It agreed to phase in the change by only applying it to new grammar school pupils and made sure it consulted the headteachers of the grammar schools before making the change. It also ensured its admissions brochure made the change clear before it opened applications.
15. Mrs X accepts she knew about the change before applying for her daughter’s place at the grammar school. However, she believes the decision contradicts DfE guidance in how it has interpreted the three-mile rule. Her view is the nearest suitable school for her daughter, taking into account her ability and aptitude, is the grammar school she is due to attend.
16. Mrs X relies on comments made by the Prime Minister, her local MP and a local grammar school headteacher, about increasing attendance and inclusivity at grammar schools, as support for her case.
17. Mrs X has also asked the Council to consider allowing the new intake of grammar school pupils to share the existing buses with those covered by the previous scheme. The Council says it putting proposed amendments to its transport to school policy before the Council in the autumn. One of the proposals is to introduce a ‘spare seat’ policy, where parents will be able to buy seats on transport where available.

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Analysis

18. The Ombudsman cannot intervene to change a council’s policy simply because some people affected object to it. We would instead have to find there was fault in the process it followed to change it, or that its practical effect directly contradicted the law or statutory guidance without good reason.
19. I cannot say that is the case here. The Council ran a completely discretionary scheme to fund transport to school for pupils at two grammar schools. This complimented its main policy on funding transport to school, which properly reflects the law and the DfE’s statutory guidance.
20. In 2017, the Council identified changes it felt justified a review of the catchment areas and designated schools in its area. It had the right to do this. The change to the designated school for Mrs X’s village did not come into place until the school year starting September 2018.
21. The Council then decided to remove the discretionary funding for transport to the grammar schools. The decision was taken by an appropriate committee and tt did this only after the catchment area changes were complete. It took steps to avoid impacting on those already receiving the funding by phasing in the change over several years. And it also made sure parents of prospective pupils were fully aware of the changes before they applied for school places.
22. Having considered the DfE guidance, I cannot accept Mrs X’s interpretation of it is correct either. The Council is within its rights to consider places offered at the designated academy school fulfil its duty. Although Mrs X feels the grammar school is the most suitable for her daughter, it does not mean the academy school is unsuitable.
23. I have concluded there is no evidence of fault in this case and so I am ending my investigation.

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Final decision

24. There is no evidence of fault in the Council’s decision to withdraw discretionary funding for transporting pupils to grammar schools from Mrs X’s village.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman