Wokingham Borough Council (19 002 507)

Category : Education > School transport

Decision : Upheld

Decision date : 18 Nov 2019

The Ombudsman's final decision:

Summary: Mr W complained after the Council refused to provide school transport for his son. He said it failed to consider the safety of the walking route between his home address and his children’s school. He said the Council’s suggested route includes crossing a road with no safe crossing point. He said the Council did not provide him with information about how it assesses safety of walking routes until after the first stage panel considered his appeal. The Ombudsman found the Council was at fault.

The complaint

  1. Mr W complained after the Council refused to provide school transport for his son. He said the Council failed to consider the safety of the walking route between his home address and his children’s school. He said the Council’s suggested route includes crossing a road with no safe crossing point. He said for his children to walk to school safely the walking distance is over three miles.
  2. Mr W also said the Council did not provide him information about how it assesses the safety of walking routes until after the stage one panel had considered and dismissed his appeal.
  3. Mr W said he does not consider the walking route suggested by the Council is safe for an adult. Therefore, its decision to refuse a bus pass leaves him no choice but to drive his children to school or buy them a bus pass.

Back to top

The Ombudsman’s role and powers

  1. 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)
  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)

Back to top

How I considered this complaint

  1. I discussed the complaint with Mr W and considered the information he provided to the Council. I read the minutes of the appeal panel and referred to the Council’s policy on home to school transport.
  2. I referred to the Department for Education statutory guidance ‘Home to school travel and transport guidance’.
  3. Mr W and the Council both had the opportunity to comment on my draft decision.

Back to top

What I found

  1. Councils have a duty to provide free home to school transport for eligible children to qualifying schools.
  2. Eligible children are defined as:
    • children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16);
    • 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;
    • 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.
  3. In certain circumstances entitlement also extends to children from a low-income family.
  4. The Government has set out a recommended two stage review and appeals process for parents who wish to challenge a decision about their child’s eligibility for travel support:
    • Stage one: Review by a senior officer.
    • Stage two: Review by an independent appeal panel.
  5. Although these are only recommendations, they are based on statutory guidance. The expressed intention was to ensure a consistent approach across all areas and to provide a completely impartial second stage. Therefore the Council would need good reason to divert from them.
  6. Councils have the power to provide discretionary funding for children who are not eligible.

The Council’s policy on road safety

  1. The Council says that if the safety of a walking route is challenged, then a Road Safety Officer will assess the safety of the road, using the guidelines of the Road Safety Association. If the Council provides transport because of route safety, it reviews that assessment every two years. The Council says it will withdraw transport if it identifies a safe walking route.

The Council’s appeals process

  1. At the first stage of the Council’s appeals process, a panel of three officers review the appeal forms. The policy states that appeals that are outside of the published criteria for home to school transport, or simply disagreeing with the Council’s decision without providing evidence to support a case, do not proceed to stage two.
  2. At the second stage of the Council’s appeal process, the appeal is heard by the School Transport Appeals Panel. The Council is then bound to the decision of the Transport Appeals Panel, however that decision may be reviewed if there are any material change to circumstances.

What happened

  1. Mr W has two children who are at school - Y and Z. His eldest child X has left school, however he received home to school transport throughout the time he attended.
  2. In 2015, Mr W applied for home to school transport for Y. The Council initially refused but following appeal, agreed to home to school transport. The appeal paperwork showed Mr W questioned the safety of the walking route and explained that Y has Asperger’s. They wanted Y to travel to school with X on the bus.
  3. In 2019, Mr W applied for home to school transport for Z. The Council refused because he lives 2.9 miles from the school and therefore within the statutory walking distance.
  4. Mr W completed an appeal form. He said the route from their home required Z to cross Road F. He said Road F was not safe to cross without using a pedestrian crossing and that increased the walking distance to over three miles.
  5. The Council’s first stage appeal panel considered Z’s application. The minutes record a comment by a panel member who said there were safe points to cross Road F earlier in the journey. The location of the safe crossing point and how the Council assessed it as safe are not clear.
  6. The panel considered the distance between Z’s home address and school. It decided to defer its decision for the officers to get more information and check the distance.
  7. The second time the panel considered the appeal, the minutes show it did not discuss the safety of the route but only the distance. The minutes said the Council’s previous measurement tool was inaccurate and it had awarded the 2015 bus pass to Y in error. It said the Council now used Google maps as the preferred measuring tool. The panel decided to withdraw Y’s bus pass at the end of the school year.
  8. The Council wrote to Mr W refusing Z’s home to school transport application. It said it had given the bus passes to his elder sons in error. It said it would withdraw Y’s bus pass at the end of the school year. It said that parents were responsible for ensuing their child travelled to school safely, and that included walking them to school if necessary. The Council did not feel Mr W had provided significant evidence for his appeal to be considered as stage two and referred him to the Ombudsman.
  9. Mr W said it was not till after the first stage of the appeal the Council gave him information about the frequency of traffic in relation to road safety. Mr W said if the Council had given that information before the appeal, he could have provided different evidence. He said he had monitored the traffic and it frequently exceeded what is safe for crossing even if he did accompany his sons.
  10. In response to my enquiries the Council provided a safety of route assessment completed in 2009. The route assessed in that does overlap with the route Mr W’s children walk but does not consider the crossing of Road F.

My findings

  1. The Ombudsman is not an appeal body. 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 Council reached the decision.
  2. The Council refused Mr W’s initial home to school transport application for Z because he lives within statutory walking distance. In Mr W’s appeal form, he said Road F was not safe to cross. He provided information about a longer route that included the use of a pedestrian crossing.
  3. The minutes of the first panel show the panel discussed crossing Road F, with a panel member stating there was an earlier safe point to cross Road F. The minutes do not say where the safer crossing point was or how it had assessed it as safe. Therefore, it is not clear how the Council came to the decision that crossing Road F was safe.
  4. The second panel did not discuss the safety of the road. It only considered the walking distance. Using Google maps as its preferred measurement tool, it confirmed Z lived within statutory walking distance.
  5. As Mr W appealed the Council’s home to school transport decision based on safety of route, we would expect to find evidence of how the Council assessed and considered the walking route as safe. The Council failed to do that. That was fault.
  6. The Council’s policy says if the safety of a walking route is challenged, then a Road Safety Officer will assess the safety of the road using the guidelines of the Road Safety Association. The Council failed to do that. The Council was at fault.
  7. In response to enquiries the Council provided a route safety assessment completed in 2009. However, the Ombudsman does not consider that assessment as evidence the walking route Mr W complains about is safe because:
    • It is ten years old and is therefore not current;
    • It does not include the crossing of Road F, which is the road Mr W complains about.
  8. The Council’s failure to consider the safety of the route has caused Mr W an injustice, as he cannot be confident the appeals panel took the correct information into consideration when reviewing his case.

The appeals process

  1. The recommended guidance based on statutory legislation is for councils to have a two-stage appeal process. However, the Council’s policy does not allow for appeals to be passed to stage two if a complainant either:
    • disagrees with its decision; and/or
    • is outside of the published criteria, unless they provide evidence to support their case.
  2. Mr W said the Council only provided information about road safety after the stage one panel. Therefore, he did not have the evidence about the frequency of traffic until after the panel. The panel did not escalate his appeal to stage two because of lack of evidence.
  3. It is the Ombudsman’s view that the Council’s policy is flawed. By having such a restrictive policy in place, the Council is fettering its discretion by potentially preventing applicants accessing the independent appeal panel. The policy is not consistent with the recommendations in statutory guidance.

The Council’s decision to remove Y’s bus pass

  1. When considering Z’s first-stage appeal, the panel also considered its previous decision to award Y home to school transport. It decided to remove that because its decision to award was based on an inaccurate measurement tool.
  2. Mr W had appealed about route safety in 2015, and it was following that appeal the Council awarded home to school transport. It is not clear if the Council’s decision to award home to school transport in 2015 was because it:
      1. Considered the route to be unsafe to walk therefore, it measured the increased journey route taking in the pedestrian crossing; or
      2. Measured the same route as it recommended for Z, but its measuring tool measured that incorrectly.
  3. If it awarded home to school transport because of the considerations in a), the Council should have completed a route safety assessment before removing the awarded transport.
  4. In addition, the appeal paperwork for Y also referred to his Asperger’s. The Council did not consider that when it decided to remove home to school transport for Y. Therefore, I am not confident the Council considered all relevant information when making that decision. The Council was at fault.

Agreed action

  1. Within one month of my final decision the Council has agreed to:
    • Complete a home to school route safety assessment between Mr W’s address and the school.
    • Amend its appeal policy, so it is in line with recommended guidance.
  2. If, following that, the Council assess the route as safe, the Council should consider Mr W’s appeal about Z’s school transport at stage two of its appeal process. The Council should also reconsider its decision to remove Y’s home-to-school transport to ensure it has considered all relevant factors, including his Asperger’s.

Back to top

Final decision

  1. The Council was fault in how it considered Mr W’s home to school transport appeal. The Council has agreed to my recommendations therefore, I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings