Summary: Mr and Mrs X complain about the way the Council decided their daughter was not eligible for free transport to school. They say the Council’s approach is unfair and inconsistent. There was some fault by the Council in how it administered free home to school transport. However, this did not cause Mr and Mrs X an injustice which would require the Council to take any action.

The complaint

1. Mr and Mrs X complain about the Council’s decision to withdraw an offer of free home to school transport for their daughter, Y. They say the Council’s approach is unfair and inconsistent. They say the Council has unreasonable denied their daughter transport assistance which they believe she is entitled to. They are also concerned about pressures on concessionary transport provision from September 2020.

Back to top

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. 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)
4. 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

5. I have considered the complaint made by Mr and Mrs X and the documents they provided.
6. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
7. I have taken account of the Ombudsman’s focus report ‘All on board? Navigating school transport issues’ published in March 2017.
8. I have given Mr and Mrs X and the Council an opportunity to comment on my draft decision and I considered their responses.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

Back to top

What I found

Background

Legislation and guidance

10. The Education Act 1996 places a duty on councils to make suitable travel arrangements for eligible children to attend a qualifying school. This transport must be provided free of charge.
11. ‘Eligible children’ as defined in the Act includes children living outside statutory walking distance from the school (two miles for children under eight; three miles for children between eight and 16)
12. A ‘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’.
13. The statutory guidance, ‘Home to School Travel and Transport’ says at the point eligibility for transport is considered, there must be a real prospect of securing a place in an alternative (usually nearer) school. For most cases this is during the normal admissions round when school places are allocated.
14. Councils have discretionary powers to provide transport to children who are not entitled to free transport, and they can charge for this.

The Council’s approach

15. The Council produces a guide for parents of children transferring to secondary school. This says living in the catchment area for a school does not mean a child will receive free transport to that school unless it is the nearest school with an available place and it is over the statutory walking distance. The guide lists the state funded schools in the Council’s area and their addresses.
16. The Council’s guide also sets out how it measures home to school distances for admissions purposes. The software the Council uses takes into account alleyways, public footpaths and bridleways as well as roads. The Council says the measurement is accurate to within two metres. The Council says other systems may give a different measurement, but it cannot take this into account because it would be inconsistent to do so.
17. The Council provides free transport for children in certain villages where 20% of addresses are nearest to the catchment school and the rest are nearer to another school, if the distance is beyond the statutory walking distance or there is no safe route. It calls this the ‘split village’ entitlement. Eligible villages are listed in the Council’s guide.
18. The Council’s home to school transport policy says if a child stops being eligible for free transport during the school term, the provision should end at the end of that term.
19. The Council runs a ‘spare seat’ scheme which enables children who do not receive free transport to pay to use available seats on the transport provided to eligible children. The policy says the Council cannot guarantee a young person will keep their seat on the school transport for longer than one full term.
20. The Council operates a two-stage appeal procedure when parents disagree with a decision about school transport. The first stage is a review by a manager. The second stage is a review by an independent appeal panel. The panel will send a letter within five working days which sets out: its decision; how it carried out the review; other departments it consulted; what it considered; and the reason for the decision.

What happened

21. Mr and Mrs X live in a village. They applied for a place for their daughter Y at School A in the normal admissions round. There are other schools nearer to their home, with School B being the nearest.
22. In March 2018, the Council offered Y a place at School A and told Mr and Mrs X she would receive free school transport.
23. In May, the Council identified there had been an error when calculating eligibility for free home to school transport for children from the village where Mr and Mrs X lived. It wrote to the affected families in June to advise they would no longer be eligible for free school transport.
24. Mr and Mrs X appealed against the decision. The Council’s response said School A was not Y’s nearest school at the time it decided her application for a school place, so she was not entitled to free school transport. It said an administrative error had led to the offer being made in the first place.
25. Mr and Mrs X asked for the independent appeal panel to review the decision. Meanwhile, in recognition of the impact of the administrative error, the Council offered to provide free school transport to those affected for one academic year. It told Mr and Mrs X they would need to pay for Y to travel on school transport under the ‘spare seat’ scheme from the beginning of Year 8.
26. Due to the number of families who were unhappy with the removal of free transport, the Council decided to hold a group appeal hearing. Mr and Mrs X sent written information in support of their appeal. They said not all parents in the village were having to pay for transport to School A and they believed the system for measuring distance was flawed.
27. Shortly before the appeal hearing began, the Council provided a document summarising the eligibility for school transport of each child in the village in the same year group as Y. The panel adjourned the hearing for 30 minutes to allow time for attendees to consider the document. Mr X attended the panel to make representations.
28. The Council’s representative told the panel there was no legal basis to provide free transport unless a child was attending their nearest available school. School B is the nearest school for all children living in the village. The question was whether a place would have been available at School B at the point the Council decided eligibility for transport. In the normal admissions round, this is 1 March.
29. The Council representative said the last child admitted to School B based on distance lived 5.878 miles from the school. Therefore, a child who lived nearer than 5.878 miles from the school could have gained a place at School B and would therefore not be eligible for free transport to another school. Y lived 5.665 miles from School B.
30. Parent representatives queried how the Council had calculated the distances from home to school. The Council representative explained the system used to measure distance. Statutory walking distances did not apply in this case as all the schools in question were more than three miles away. None of the children were eligible for free transport based on income. The same system of measurement was applied to all the affected children.
31. The panel issued its decision seven working days later. The letter said the appeal against the decision not to provide free transport had been refused. It listed the guidance and policy the panel had taken account of. It summarised the main grounds of appeal which included:
• withdrawing the offer of transport;
• the close-knit nature of the village;
• a wish for siblings to attend the same school;
• concerns the Council was not treating the village as a split village;
• the distance measurements used;
• poor communication from the Council;
• inconsistencies in how the Council had awarded free transport; and
• the unrealistic prospect of a place at School B had all parents applied there.
32. The panel’s decision letter recognised the error made and some problems with the Council’s communication. However, it decided the Council had acted correctly in withdrawing the offer of free transport. It said to continue to incur expense to the public purse for the duration of the Y’s time at school because of an administrative error would not be correct.
33. The panel considered the arguments about distance measurements. However, it decided that as none of the schools were within statutory walking distance it would not be appropriate to use walking routes as a basis for calculating distance. The panel said the Council used the same method of measuring distance consistently to allocate places and it was satisfied the Council had acted correctly.
34. The panel said the village could not be a ‘split’ village because all the addresses in the village are closest to School B, whatever system of measurement is used. It decided the Council consistently used the method of individually comparing each child’s distance from the school to that of the last place allocated. Therefore, officers had correctly decided there was a real prospect of Y receiving a place at School B.
35. In response to my enquiries, the Council said an error entering expiry dates had recently come to its attention. This meant four families continued to receive free transport to school from September 2019, after the Council’s offer of a year’s free transport had expired. The Council has corrected the error and issued invoices to these families for the ‘spare seat’ scheme. The Council also provided me with information about the children in the same year group as Y who currently receive free school transport to School A.
36. In response to my enquiries, the Council said it provided transport to ensure all children from the village would be able to travel to School A. This included those who receive free transport and those who pay under the ‘spare seat’ scheme. The Council says this will continue until 2021 when it is due to retender transport routes for the village. The Council says as part of the retender it intends to seek enough seats to meet the likely demand from those entitled to free transport and those who use the paid scheme.

Analysis

37. The Council accepts there was fault in how it decided to offer free transport in March 2018. There is nothing in the law or guidance which prevents councils from withdrawing offers made in error. Once it identified the error, it agreed to provide free school transport for one academic year. Even if there was fault in the process of withdrawing the offer of transport, the Ombudsman would not propose any further remedy to that offered by the Council.
38. I am satisfied the Council provided information which made it clear applying to a catchment school did not confer a right to free school transport. The Council is not at fault for annual variations in the demand on local school places.
39. Mr and Mrs X say School A should be considered Y’s nearest qualifying school. However, none of the reasons they give relate to Y’s age, ability or aptitude. These are the only reasons the Council would discount the closest school as the nearest qualifying school. I am therefore satisfied that School B meets the definition of nearest qualifying school for assessing eligibility for free transport.
40. Mr and Mrs X say they would not have accepted a place for Y at School A without the ‘promise’ of free transport. But when they applied to School A there was no commitment from the Council that Y would receive free transport.
41. Mr and Mrs X say there was no real prospect of Y securing a place at School B because of the number of children similarly affected. However, the Council must consider each child individually. It cannot consider what may have happened if, hypothetically, the parents of the other affected children had decided to name School B on their application for a school place. In Y’s case, she lived nearer than the furthest away child admitted to School B and would have secured a place if an application had been made. The Council has applied the criteria consistently to each affected child. There was no fault in the way the Council presented the information to the panel and the panel took account of it properly.
42. Mr and Mrs X say the Council is not optimising existing transport routes. It is not for the Ombudsman to tell the Council how to use its resources.
43. Mr and Mrs X complain about the late submission of evidence by the Council to the panel. The Council’s guide to transport appeals says if information is presented on the day of the hearing, the panel can decide whether to adjourn or continue. In this case the clerk’s notes show the panel allowed time for attendees to review the new document and the notes do not record any objections to this approach. Therefore, there is no evidence of injustice caused to Mr and Mrs X by the panel’s decision.
44. Evidence from the panel hearing, deliberations and the decision letter show the panel considered the concerns raised by the affected families and weighed these in deciding to refuse the appeal. As outlined at paragraph 3, the Ombudsman cannot consider the merits of a decision where there has been no procedural fault in how the decision has been made.
45. The panel clerk sent the decision letter slightly outside the five working day deadline set out in the Council’s policy. However, this delay was not significant enough to cause Mr and Mrs X injustice.
46. The Council made an administrative error when it failed to correctly enter expiry dates for the discretionary free transport for four of the affected families. This was fault. It has now corrected the error. This error did not cause an injustice to Mr and Mrs X.
47. While I cannot share the details with Mr and Mrs X about the remaining families who are eligible for free transport, I am satisfied the Council has applied its policy correctly in these cases. The information shows the children either live further away from School B than the last admitted pupil, or they applied for a school place outside the normal admission round.
48. I sympathise with Mr and Mrs X’s frustration about the Council withdrawing the original offer of free transport. However, the Council acted to correct its error and provided a suitable remedy to recognise the impact. There was no fault in the way the appeal panel considered the evidence and decided to refuse their appeal.
49. There is no duty on the Council to run a spare seat scheme. I am satisfied the Council has arranged to meet demand for transport from the village until 2021 and has committed to maintaining this provision when it retenders the contract. Should issues arise with transport following the retender, Mr and Mrs X would need to raise this with the Council first.

Back to top

Final decision

50. I have completed my investigation. There was some fault by the Council in how it administered free home to school transport. However, this did not cause Mr and Mrs X an injustice which would require the Council to take any action.

Back to top

Investigator's decision on behalf of the Ombudsman