Suffolk County Council (19 004 589)

Category : Education > School transport

Decision : Upheld

Decision date : 09 Mar 2020

The Ombudsman's final decision:

Summary: Ms M complains the Council refused her request for home to school transport for her daughter, G. There was fault in the way the Council considered Ms M’s appeal. The Council has agreed to hear the appeal again.

The complaint

  1. Ms M complains the Council refused her request for home to school transport for her daughter, G.
  2. In particular, Ms M complains the Council failed to properly consider the safety of the proposed walking route from the village where she lives across farmland to the school.

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What I have investigated

  1. I have investigated the way the Council considered Ms M’s request for transport. The Ombudsman does not decide whether the Council should provide transport for Ms M’s daughter. My job is to check the Council made its decision properly.

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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. 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

  1. I have considered:
    • information provided by Ms M;
    • information provided by the Council, including papers from Ms M’s appeal;
    • the Education Act 1996; and
    • Home to school travel and transport guidance. Statutory guidance for local authorities issued by the Department for Education in July 2014.
  2. I invited Ms M and the Council to comment on my draft decision.

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What I found

  1. Mrs M’s daughter, G, attends her nearest secondary school. The school is just over three miles by road, or two miles across farmland, from the village where Ms M lives.

Home to school transport

  1. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
  2. Eligible children are children of compulsory school age who:
    • cannot walk to school because of their special educational needs, disability or a mobility problem;
    • cannot reasonably be expected to walk because the nature of the route is deemed unsafe to walk; or
    • live beyond the statutory walking distance. (Education Act 1996, Schedule 35B)
  3. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
  4. The nearest 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.
  5. Government guidance says when determining whether a child cannot reasonably be expected to walk for the purposes of ‘unsafe route eligibility’, the council will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child.
  6. When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school, the guidance says a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. (Home to school travel and transport guidance. Statutory guidance for local authorities, DfE, 2014 paragraph 17)

Ms M’s application and appeal

  1. Ms M applied for school transport for her daughter G. The Council refused. The Council said children from the village are not entitled to transport because the school is just over two miles away using a footpath which crosses farmland.
  2. Ms M appealed the Council’s decision. She said the route proposed by the Council is not safe. A panel of three local councillors, the Education Transport Appeals Committee, heard Ms M’s appeal and the appeal of another parent. The panel considered written evidence and photographs from Ms M and a report produced for the Council by an independent traffic and road safety consultant. The panel also made a site visit. Ms M was supported by the school’s head teacher and her local councillor.
  3. Ms M’s appeal was unsuccessful. The decision letter explained the committee decided that, “for a child pedestrian accompanied by a responsible adult, the route was not dangerous because the route was available.”
  4. The letter went on to explain the “general expectation” a child will be accompanied by a parent unless there is a good reason why it is not reasonable to expect the parent to do so.
  5. The letter said the committee acknowledged Ms M’s work commitments, but noted her “lawful obligation to send [her] children to school.” As this applied to all parents, the committee decided Ms M’s work commitments were not an exceptional reason to provide transport for G.
  6. The letter said the committee considered that “it should be possible for [Ms M] to make other arrangements for both [her] children to be accompanied to school and to arrange for the transportation of their school bags and equipment.”
  7. The letter explained the committee had discussed the availability of an “appropriately timed” public bus service and provided contact details for the operator. The letter said no evidence was provided that G would be unable to use the bus accompanied by an adult.
  8. Ms M remained dissatisfied and complained to the Ombudsman. She does not believe the Council properly considered her application and appeal.

Consideration

  1. I have carefully considered the papers from Ms M’s appeal, including the minutes of the hearing and the committee’s deliberations. The Ombudsman does not decide whether G is entitled to transport. This is the Council’s job. My role is to check the Council made the decision properly. I check the Council followed relevant policies, guidance and legislation; took account of all relevant information; and did not take irrelevant information into account.
  2. The evidence I have seen shows the Council did not make the decision properly.
  3. Ms M applied for transport on the grounds the proposed walking route was unsafe. It is not my role to evaluate Ms M’s concerns, but it is relevant to note they included the remoteness and isolation of the proposed footpaths across farmland and alongside woodland; the lack of streetlighting; unsafe stream crossings; unmade and muddy surfaces; and the crossing of a working farmyard.
  4. The decision the Council is required to make has three elements:
    • whether the child could reasonably be expected to walk the route;
    • whether the child could reasonably be expected to walk if accompanied; and, if so
    • whether the child’s parent can reasonably be expected to accompany the child.
  5. The Council has not properly addressed any of these questions. Further, the Council has taken account of irrelevant information when making its decision. I will set out my reasons below.

Whether the child could reasonably be expected to walk; and whether the child could reasonably be expected to walk if accompanied

  1. These questions require the committee to assess the safety of the route.
  2. The minutes of the hearing show very little engagement with the safety of the proposed route. It appears the committee believed that accompaniment by a parent negated any potential risk, save the risk from pesticides which the committee concluded was not relevant since it believed that famers were not allowed to use toxic chemicals.
  3. The minutes say the chair of the committee said there was “nothing to discuss” since he had stood at a road close to the school waiting for a car for three to four minutes. The parents’ safety concerns were about the footpaths across farmland and woodland, not the road.
  4. The committee dismissed the local councillor’s concerns about a 10ft drop from an unfenced bridge since they believed it was ‘only’ 4ft high. One member of the committee described ‘falling off walls’ as ‘a normal part of childhood’.
  5. The committee appears to have believed that erecting handrails on the bridge and placing chicken wire on another crossing to make it less slippery would address some of the parents’ safety concerns. They did not, however, give any consideration to who might do this and when. The committee did not properly consider whether the crossings were safe.
  6. The committee did not discuss parents’ concerns about the mud and puddles on field paths after heavy rain, or the safety of the route in darkness in winter, risks which would apply equally to children and accompanying adults and would not be addressed if children were accompanied. One committee member thought the route would be ‘horrible at other times of year’, but the committee did not explore this any further.
  7. The committee dismissed parents’ concerns about the isolation of the route and appear to have based their decision on the fact there would be “150 children walking” the route. The Council did not provide any evidence to indicate how many children would walk the route. The committee was hearing appeals from just two parents.

Whether the child’s parent can reasonably be expected to accompany the child.

  1. The committee began its deliberations with one member of the panel asserting that parents ‘should be with their children’ and saying ‘all this independence not relevant.’ Government guidance says councils must consider whether the child’s parent can reasonably be expected to accompany the child. The Council cannot assume it is reasonable to expect the parent to accompany their child. The Council must consider the parents’ individual circumstances. The Council’s decision letter following the appeal suggests the committee considered Ms M’s work commitments, but there is no evidence they did in the minutes of their deliberations. Even in the decision letter, however, it appears the Council has taken a ‘blanket’ approach to working parents or parents with children at different schools, since it dismisses these as not exceptional reasons, so the Council cannot be said to have considered Ms M’s circumstances.
  2. Further, Government guidance says the Council may need to take a range of factors into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. There is no evidence the committee considered these matters.

Irrelevant information

  1. The minutes from the hearing and the decision letter show the committee considered the availability of public transport as an alternative to walking the Council’s proposed route to school. The committee appears to have concluded it is unlikely the children will walk to school and it would be reasonable for them to use the public bus. The presence of a public bus service is irrelevant. The Panel must consider whether it is reasonable to expect the children to walk to the school. If it is not, the Council must provide transport.
  2. The Panel decided bus travel would “affordable” and therefore “not an issue”. However, the Panel did not hear any evidence from the parents on the affordability of bus travel.
  3. The minutes also show the committee appears to have thought parents could ‘carry [their children’s] equipment in a car if necessary’. This, too, is irrelevant.

The Council’s comments on my draft decision

  1. The Council said it had followed guidance from Road Safety GB, a charity and company limited by guarantee which draws on expertise from across local government. The Council said it believed the remoteness and isolation of the footpaths, lack of street lighting and personal safety issues for children travelling alone were irrelevant and should not be considered. The Council said it believed it should only consider the relationship between pedestrians and traffic.
  2. The Road Safety GB guidance offers invaluable technical guidance for assessing the safety of roads. However, eligibility for school transport is a complex subject and has been the subject of disputes, including court cases, since at least the 1950s. There have been significant changes to legislation and government guidance during this time. Councils would be well advised to seek their own independent and up-to-date legal advice on these matters.
  3. Nevertheless, the Council’s view that it should only consider the relationship between pedestrians and traffic when assessing the safety of routes is not borne out by current Government guidance.

Conclusion

  1. For the reasons set out above, the committee failed to consider all relevant information and took irrelevant information into account when considering Ms M’s application and appeal. This calls the decision into question

Agreed action

  1. If we find fault that has caused an injustice, we may recommend a remedy. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
  2. I recommended the Council reconsider Ms M’s application for transport. If the Council does not agree to provide transport, it should arrange for a fresh appeal panel to consider Ms M’s appeal. The Council should ensure the new panel is properly briefed on the decision it must make. I recommended the Council take this action so Ms M receives the final decision, with reasons, within one month of my final decision.
  3. If the Council or the new appeal panel decides the Council should provide transport, the Council should agree a payment with Ms M to reimburse any transport costs she has incurred since the start of term.
  4. I recommended the Council apologise for its failure to properly consider Ms M’s application and appeal. I recommend the Council send the apology within one month of my final decision.
  5. The Council agreed to offer Ms M a fresh appeal. The Council agreed the appeal will consider the safety of the route, for an accompanied child, and whether it was reasonable for G to be accompanied to school. The Council said the appeal panel will walk the route.

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Final decision

  1. The Council has agreed to arrange a fresh appeal to consider Ms M’s appeal, so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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