Summary: The Council acted in line with the Education Act 1996 and its transport policy when refusing free school transport to Mrs B’s son, and its appeals panel properly considered Mrs B’s circumstances before deciding they did not justify free transport on a discretionary basis. Because of this, the Ombudsman cannot question the decision.

The complaint

1. The complainant, whom I refer to as Mrs B, complains that the Council’s school transport appeals panel did not overturn the Council’s decision to refuse free home to school transport to her son. I refer to her son as C.

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The Ombudsman’s role and powers

2. 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)
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. I considered information from Mrs B and the Council.
5. I wrote to Mrs B and the Council with my draft decision and gave them the opportunity to comment.

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What I found

What should have happened?

The Education Act 1996

6. Section 508B of the Act places duties on councils to ensure that suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school.
7. Schedule 35B says councils must provide free transport to a child who attends a school which is not within walking distance of their home, if no suitable arrangements have been made for the child to attend a nearer school. Section 444 says walking distance, for children over the age of 7, is a maximum of three miles.
8. Section 508C provides councils with discretionary powers to go beyond their statutory duties and provide transport for children who are not entitled to free transport. They do not have to provide this transport for free, although they may do so.

The Council’s transport policy

9. This document confirms the Council’s intention to provide transport to eligible children. If a child’s nearest school has no places available, the Council will provide transport to an alternative school, which will normally be the next nearest.
10. The Council will consider providing free transport when a child has been affected by the reorganisation of a school – such as when the Council has changed a catchment area. It will notify the parents of those affected before making changes.
11. If a child is not eligible for free transport, their parents can apply to purchase spare seats on the Council’s contracted vehicles. The policy sets out the order of priority in which Council will allocate these seats.
12. The Council will charge parents for their child’s use of a spare seat. The Council’s website says this costs £145 per term if the child attends a school of parental preference.

What happened?

13. In April 2019 the Council refused Mrs B’s transport application. It said C’s allocated school – which was Mrs B’s second choice after there were no places available at her preferred school – was not his nearest with places available. It said this meant C was not eligible for free transport.
14. The Council said Mrs B could apply for discretionary transport, which would cost £145 per term.
15. Mrs B appealed the Council’s decision. She said C was only refused a place at her preferred school because the Council changed the school’s catchment area without telling her. She said she was not properly advised about transport eligibility before choosing a second school preference. She said they live in a rural area without transport links, and C’s father had recently been made redundant so they could not afford to pay for C’s transport.
16. In May the Council considered Mrs B’s first stage appeal. It said its legal duty is to provide transport to children who attend their nearest available school. It said C’s school was not his nearest, and a nearer school had places available. It said it had applied its transport policy correctly, and had not changed the catchment area of Mrs B’s preferred school – the school’s published admission number (PAN) had reduced, so it was oversubscribed.
17. Mrs B appealed again, and a panel heard the appeal in June.
18. The panel considered Mrs B’s correspondence with the Council (including her first stage appeal). It also considered Mrs B’s own representations at the hearing. She discussed the alleged change to her preferred school’s catchment area, the family’s financial difficulties, the lack of transport options in a rural area, and the Council’s alleged failure to provide proper information about school admissions.
19. The panel decided the Council had provided clear information about admissions, and noted that there were places available at a nearer school than the one Mrs B chose as her second preference. It also decided the Council had properly applied its transport policy, and that C was not eligible for free transport.
20. The panel Chair wrote to Mrs B three days after the hearing to tell her that her appeal was not upheld. He said:

We have concluded that the … Council’s policy has been correctly applied in your case and have not been able to accept exceptional reasons to provide free transport. We therefore do not uphold your appeal.

My findings

21. I cannot decide whether a council should provide school transport to a child. However, I can look at whether it has met its legal duties and properly considered the use of its discretionary powers. If it has, then I cannot question its decision.
22. A council is entitled to refuse free transport to a child who is not eligible under the Education Act. However, I would expect an appeals panel to decide whether a council has properly applied its transport policy. I would also expect the panel to consider an applicant’s circumstances before deciding whether the council should award full or partial funding for discretionary transport.
23. It is clear that, under the definitions in the Education Act, C is not eligible for free transport. The school he attends is not his nearest school with places available.
24. Although Mrs B claims her preferred school’s oversubscription means its catchment area has changed, I do not agree. Children within a school’s catchment area usually get some degree of priority, but living within the area does not guarantee admission.
25. If the number of applicants within a school’s catchment area is higher than the school’s PAN, then some must necessarily be refused. It appears that C was one of those children. This does not mean the catchment area has been changed, and I have seen no evidence to suggest as much in C’s case.
26. The appeals panel considered the circumstances Mrs B set out in her correspondence and in the hearing itself, but decided they were not exceptional enough to justify the award of free discretionary transport.
27. This does not mean there is no discretionary transport available to C; it just means it would not be free. The Council has offered Mrs B the opportunity to apply for such transport at a cost of £145 per term (depending on availability).
28. The Council complied with the law and properly applied its transport policy, and the appeals panel considered Mrs B’s circumstances before deciding not to award free discretionary transport.
29. Because of this, I cannot question the decision not to provide free transport to C, and I have not found fault with the Council.

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Final decision

30. The Council acted in line with the Education Act and its transport policy when refusing free school transport to C, and properly considered the use of its discretionary powers. Because of this, I cannot question its decision.

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Investigator's decision on behalf of the Ombudsman