Summary: The complainant says the Council is at fault in its decision to refuse his request for free school transport for his children. The Ombudsman has not found any evidence of fault by the Council in how it has considered this matter and for this reason he has ended his investigation of this complaint.

The complaint

1. The complainant, who I shall call Mr X, says the Council is at fault in its decision to refuse his request for free school transport for his two children. Mr X says there is no public transport between where he lives and his children’s school. He says it is difficult to take the children to school and the Council is providing transport for other children in the area.

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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. As part of my investigation I considered the details of Mr X’s complaint and discussed the complaint with him. I also considered the Council’s response to enquiries we made. I set out my initial view on the complaint in a draft decision statement and I invited Mr X and the Council to comment.

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What I found

Relevant legislation and policy

The Education Act 1996 - Section 508B

5. The above legislation explains the duties of local authorities to provide free school transport to children of compulsory school age in certain circumstances. It says local authorities must make suitable travel arrangements as they consider necessary for eligible children to attend their qualifying school. The transport must be provided free of charge.
6. A child’s qualifying school is the nearest school with places available that provides education which is appropriate to their age, ability and aptitude.

Essex County Council Education Transport policy

7. This policy explains how the Council will fulfil its duties and use its discretionary powers regarding the provision of school transport.
8. It says the Council will provide free home to school transport for children of compulsory school age to the nearest available school from their home address who meet the qualifying statutory walking distance. This is 2 miles or more for children below the age of eight and three miles of more for children aged eight and above.
9. The policy defines an ‘available school’ as a maintained school or academy within the Council’s area at which the child would have been offered a place, had the parent applied for the school as a first preference on the original admission application. School transport will not be provided if there is a nearer available school which was listed as a lower preference or for which the parent did not apply on the original admission application.
10. The Council has discretionary powers to provide school transport in exceptional circumstances. It will consider requests for school transport however the overriding expectation is that it is the parents’ legal responsibility to get their children to school. For this reason, parents will have to demonstrate medical, social, financial or personal reasons why they cannot to do so.
11. If the Council refuses a request for home to school transport, the applicant can appeal and explain why they believe the decision should be reviewed. The Stage One appeal will be considered by an officer senior to the officer who made the original decision. If the applicant remains dissatisfied, they can appeal again. The Stage two appeal will be considered by an officer senior to the officer who considered the Stage One appeal.

Background

12. Mr X and his partner have two children. When they moved to their current home they applied for a primary school place for their eldest child. As part of its school admissions information the Council advises those applying to have regard to its educational transport policy when doing so. It explains that transport will only be provided to the nearest school where the criteria are met.
13. School Y is the closest school to Mr X’s home. The Council says it is not considered a faith school for the purposes of home to school transport because:

• it is not attached any diocese; and
• it does not award priority to children of a faith as part of its admission criteria.

14. When Mr X applied for school places for his children he expressed a first preference for places at School Z, which is not the nearest school to his home. His eldest child was awarded a place and has now been at the school for four years. Mr X’s younger child started at the school in the academic year 2018/19.
15. In spring 2018 Mr X requested home to school transport for his eldest child to School Z. His request was refused under the Council’s Education Transport Policy because School Z was his first choice school despite it not being the nearest.
16. Mr X appealed against the decision in May on the following grounds:

• School Y is a faith school. As a parent of a different faith, he deemed it necessary to apply for places at School Z for his child.
• He and his partner are struggling to take the child to school and they had been relying on a teacher giving him a lift.

17. The Council considered his appeal but upheld its original decision as School Z was not Mr X’s nearest school. It said, while it had regard to the difficulties Mr X was having, these were not grounds to award school transport outside of its criteria. It also explained that School Y was not considered a faith school for the purposes of school transport.
18. Mr X appealed again on the following grounds:

• He was not given sufficient information about schools where he lives when he moved there.
• His son is established in School Z and it would be inconvenient to move him.
• His home area is not served by public transport and his job means that he cannot take and collect his children from school. His partner does not drive and there is no footpath from his home to School Z.

19. The Council replied saying the following:

• Its published school admissions information explains that home to school transport is provided to the nearest school where the criteria are met. It also tells applicants how they can contact the Council for further information.
• Mr X’s son being settled at School Z is not grounds to exercise discretion and provide transport outside of its criteria.
• The cost and responsibility for arranging transport to school for children rests with their parents. Mr X’s partner not being able to drive and his work commitments do not provide grounds to exercise discretion.
• A lack of available public transport to a school which is not the pupil’s nearest school is not grounds for providing transport outside of its criteria.

For these reasons the Council did not uphold Mr X’s appeal.

20. Mr X reiterated his reasons for requesting free school transport to the Council in November 2018 and April 2019. However, as there have been no changes in Mr X’s circumstances, the Council’s decision has not changed.
21. Unhappy with the Council’s decision Mr X approached the Ombudsman for assistance.

Analysis

22. It is not for the Ombudsman to substitute his judgement for that of the Council. Instead he examines the process leading to the Council’s decisions for evidence of fault.
23. The Council’s Education Transport policy says free home to school transport will only be provided to children of compulsory school age who meet the qualifying distance if they attend their nearest qualifying school. In this case Mr X’s children do not attend their nearest school. The Council has clarified that, if Mr X had given first preference to his nearest school at the time of original admission, his children would have been granted a place at that school. The Council’s decision is in line with its policy and there is no evidence of fault in how it was made.
24. The Council explained to Mr X why it had not upheld his appeals. The Council’s view accords with its Education Transport Policy. For these reasons I do not find fault with its consideration of Mr X’s appeals and accordingly there are no grounds on which I can question the merits of its decisions.
25. I note Mr X says other children living in the same area as him are provided with home to school transport. However, for the reasons set out, Mr X is not entitled to such transport and the Council does not consider there are grounds to make an exception to its policy in this case. This is a decision the Council is entitled to make and I cannot question it simply because it has decided there are grounds to provide transport in other cases.

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Final decision

26. I have ended my investigation of this complaint as I have not found evidence of fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman