Newcastle upon Tyne City Council (19 002 276)

Category : Education > School transport

Decision : Upheld

Decision date : 15 Oct 2019

The Ombudsman's final decision:

Summary: Ms C says the Council should pay for her granddaughter’s school transport. She attends a faith school but is not a member of that faith. They qualify for ‘extended rights’ to school transport. Ms C says she suffered injustice because she was discriminated against. The Council was not at fault for the way it dealt with Ms C’s application. It agreed Ms C had extended rights but found she did not meet the extended rights criteria. The Council was at fault for having an inadequate appeals procedure which fettered its discretion to make allowance for exceptional circumstances but this caused Ms C no injustice.

The complaint

  1. The complainant, who I have called Ms C, says the Council should provide free school transport for her granddaughter, CC, who lives with her and attends a faith school, School F. Neither Ms C nor CC share School F’s religion. Ms C says:
      1. School F is the second closest school to her house whereas the Council says it is not one of the closest three schools;
      2. The Council is discriminating against her because it would provide transport to someone of School F’s faith in similar circumstances; and
      3. The Council has failed to consider the fact she is on benefits.
  2. Ms C says she has suffered injustice because:
      1. She is being discriminated against; and
      2. She cannot afford the transport being on low income.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. 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’. (Local Government Act 1974, section 24A(6), as amended)
  2. 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)
  3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

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How I considered this complaint

  1. I spoke to Ms C and wrote an enquiry letter to the Council. I considered the response and the relevant law and guidance before reaching my draft decision.
  2. I sent my draft to Ms C and the Council and invited their comments.

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What I found

What should happen

School transport

  1. Local authorities must make ‘suitable travel arrangements’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
  2. The ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child’.
  3. ‘Eligible children’ are defined in Schedule 35B of the Act as:
      1. children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16);
      2. 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;
      3. 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;
      4. children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if:
          1. the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
          2. the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.
  4. The provisions in 9(d) above are known as ‘extended rights’ for poorer families.

Statutory guidance

  1. The ‘Home to school travel and transport guidance’ (‘the Guidance’) says in the Religion or Belief section, paragraphs 38-42:

Local authorities need to respect parents religious and philosophical convictions as to the education to be provided for their children….

The Secretary of State … believes that wherever possible, local authorities should ensure that transport arrangements support the religious or philosophical preference parents express. In many cases, these schools may be more distant and therefore the provision of transport and/or training, and the avoidance of unreasonable expenditure on travel are encouraged…

…Local authorities should pay particularly careful attention to the potential impact of any changes on low income families …whose parents adhere to a particular faith or philosophy’.

Equality legislation

  1. The Equality Act 2010 says local authorities must not discriminate against those with certain ‘protected characteristics’. These are:
    • Age;
    • Disability;
    • Gender reassignment;
    • Marriage and civil partnership;
    • Pregnancy and maternity;
    • Race;
    • Religion or belief;
    • Sex; and
    • Sexual orientation.
  2. The Act states, at s.10 that ‘religion means any religion and a reference to religion includes a reference to a lack of religion’.

Guidance – The Equality Act 2010 and Schools

  1. ‘Councils are responsible for the provision of transport to schools for pupils living in their authorities and the discrimination provisions on age and religion or belief do not extend to these transport arrangements. So, for example, [a council] would not be unlawfully discriminating simply if it arranges a school bus to a faith school on the outskirts of town but not to another maintained school in the area – or if it lays on transport to a primary school but not to the nearby secondary school…. The same provision for transport should be made to enable the child of non-religious parents to attend a maintained school if the parent feels that this is important in view of his own belief system, as is made to enable the child of religious parents to attend a faith school which is not the nearest to their home’. (The Equality Act 2010 and Schools, Transport 6.7-6.8)

Fettering discretion

  1. It is a general principle of administrative law that public bodies should not ‘fetter their discretion’. This means they should consider whether there are exceptional circumstances that justify departing from usual policy to prevent injustice to applicants whose circumstances place them at a disadvantage.

What happened

  1. Ms C’s granddaughter, CC, lives with her. CC is 15. In 2018, they applied for a place at School F. Initially, School F refused. Ms C appealed successfully and then applied to the Council for school transport funding. The Council refused in December 2018. Ms C appealed. The Council dismissed the appeal saying:
      1. The school was not one of the three closest suitable schools to their home; and
      2. CC had not been awarded her place on faith grounds.

Was there fault causing injustice?

Distance from home to school and extended rights

  1. The Council accepted CC has extended rights so would fund her transport if:
      1. her chosen school was between 2 and 6 miles from home and of the three nearest suitable schools to her house: and/or
      2. her school was between 2 and 15 miles from her house and was the nearest school preferred on the grounds of religion or belief.
  2. Ms C says School F is the second closest school to her home. The Council says that, according to its measurements, there are three schools closer to her house. The Council has explained how it calculates distances. It has provided its measurements for four schools. It says School F is the fourth closest school. I have confirmed this. Therefore, a) above does not apply.
  3. School F is between 2 and 15 miles from Ms C’s home. Therefore, if Ms C preferred the school on the grounds of religion or belief, the Council would be obliged to fund CC’s transport. However, Ms C says neither she nor CC share School F’s faith. Therefore, 18(b) above does not apply either.
  4. Therefore, the Council’s decision is in accordance with the law and statutory guidance. It also complies with its own policy. The Council is not at fault.

Discrimination against Ms C and CC for lack of faith

  1. Ms C says the Council would have paid for CC’s transport if she had shared School F’s faith, but because she does not, it won’t. Therefore, she says, she is being discriminated against.
  2. The Equality Act says it is unlawful for a council to discriminate against someone with a ‘protected characteristic’. Religion is a protected characteristic and the Act and associated guidance are clear that discrimination against someone for lack of religious belief is also unlawful.
  3. However, in this case, the Council did not discriminate against Ms C or CC either for their religious belief or their lack of religious belief. The only relevant question was whether they shared School F’s religion. If they had, the Council would have funded transport. As they did not it did not have to.
  4. While the Equality Act and Schools guidance does not provide guidance on Ms C’s exact circumstances, it does say school transport provision is not, in any event covered by the Equality Act. It also says, ‘a local authority would not be unlawfully discriminating simply if it arranges a school bus to a faith school on the outskirts of town but not to another maintained school in the area’.
  5. From this, it is clear that it is not unlawful discrimination to provide transport for those of a certain faith but not for others. Therefore, I do not find fault.

Failure to consider that she is on benefits.

  1. The Council accepted Ms C was on benefits and therefore accepted she had extended rights. However, she did not meet the criteria. I do not find fault.

Fettering discretion

  1. I have found the Council was not at fault for the way in which it dealt with Ms C’s complaint. However, I have found it at fault for operating an appeals process which is unfair and therefore faulty.
  2. The Ombudsman often finds fault with councils for ‘fettering their discretion’, that is to say, for operating inflexible policies which do not allow for the application of discretion. This is because a blanket refusal to depart from a policy is arbitrary and likely to lead, at one time or another, to manifest injustice.
  3. The Council refers us to the School Travel and Transport Guidance which says in s.37 ‘it is very much for the individual local authority to decide whether or how to apply this discretion’.
  4. The Ombudsman does not accept that it is the intention of this paragraph to allow councils to dispense with any discretionary element to the appeals process in all circumstances. It is rather, we say, a recognition that such decisions are best made on a case by case basis to know how to apply that discretion.
  5. They are still obliged to consider whether to do so. Setting a policy on the use of discretion can never cover every unforeseen eventuality. The Council is at fault.

Appeal conflict

  1. The original decision was signed by the Admissions and Information Service Manager. The appeal was conducted by an ‘admissions and information specialist’. We were concerned that a subordinate officer handled an appeal against his manager’s work.
  2. The Council says that, while the Manager’s name is on all decisions, the decisions themselves were, in fact, made by junior officers and there is, therefore, no conflict of interest even though the specialist is managed by the manager.
  3. The Ombudsman says the name of the actual decision maker should be on the decision to be appealed. We find the fact that the specialist handles an appeal of his manager’s decision may lead to a perception of injustice. This is fault.
  4. I have found flaws in the Council’s appeals process did not cause Ms C injustice.

No injustice, recommendations made

  1. Although there was no injustice to Ms C, there is a risk that the Council’s current procedures will cause injustice to others. I have therefore made recommendations that the Council should amend its appeals policy and complaints process. The Council has agreed to these recommendations.

Agreed action

  1. The Council has agreed to write to the Ombudsman within three months and show:
      1. It has rewritten its appeals policy and associated communications to state that it will consider exercising its discretion in exceptional circumstances;
      2. It has considered whether to introduce a two-stage complaints process and what its decision is; and
      3. It has taken action to ensure that the name of the decision-maker appears on the original transport funding decision, not the manager’s.

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Final decision

  1. Having considered the evidence and applied the relevant law and guidance, I have decided the Council was at fault but that this fault caused Ms C and CC no personal injustice. Nonetheless, I have made recommendations which the Council has agreed to implement. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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