Summary: There was fault and a failure to follow the local policy and statutory guidance when the Council considered an application for home to school transport. This caused unnecessary confusion, time and trouble to Mr and Mrs X. The Council will offer a fresh appeal, make a time and trouble payment and apologise to Mr and Mrs X. It will also review its complaint and appeal processes.

The complaint

1. Mr and Mrs X complain that their daughter has been refused free home to school transport. In particular, Mr and Mrs X complain the Council:
• Said their case would be relooked at after a school complaint about bullying had been completed, but failed to do so
• Failed to arrange for an independent review panel to consider their case after offering this as an option
• Failed to properly consider the exceptional circumstances of their case
• Failed to consider if Mr and Mrs X could pay the additional cost of transport to their chosen school compared to the cost of transport to the catchment school.

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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)

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How I considered this complaint

5. I have considered information provided by Mr and Mrs X and the Council including:
• Transport application and appeal documents
• Complaint correspondence
• The Council’s Home to School Transport policy
• The Education Act 1996
• Statutory guidance: Home to School Travel and Transport Guidance.
6. I have written to Mr and Mrs X and the Council with my draft decision and considered their comments.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Law and statutory guidance

8. Under Section 508B of Education Act 1996 (The Act) local authorities must provide free home to school transport for various categories of ‘eligible’ children. Eligible children include those who attend a ‘qualifying school’ and live outside the statutory walking distance of two miles for children under age 8 and three miles above age 8.
9. A qualifying school is the nearest suitable school with places available at the relevant time.
10. Under Section 508C of the Act Councils also have the power to provide transport to children who are not eligible under s.508B where they consider it necessary to facilitate the child’s attendance at school.
11. Parents are responsible for ensuring their child attends school regularly but will have a defence in law against prosecution for non-attendance if the local authority has a duty to make travel arrangements and has failed to discharge that duty.
12. The statutory guidance says Councils should have in place both appeal and complaint procedures should someone wish to complain about the service or appeal the decision. The guidance recommends that for appeals Councils use a two stage process:
• Stage one – by a senior officer
• Stage two – by an independent review panel.

Local policy

13. The Council’s Home to School Transport policy says:
• Pupils attending a school other than the nearest designated school will not usually qualify for free transport even where the ‘preferred’ school has specialist status or is preferred on denominational grounds
• Transport will be provided to eligible children to the nearest, designated school
• Under the Council’s general powers [s.508C] to provide transport assistance to other children an assessment for transport assistance in cases of bullying will be considered in line with the Council’s Anti-Bullying Strategy. The bullying allegations need to be addressed by the school and the parents guided to make a non-curriculum complaint. Once the non-curriculum complaints process has been exhausted, and if it is found the bullying and school move has been upheld, the application for transport will be reconsidered. If the bullying is substantiated and a move was found to be in the best interests of the pupil then consideration will be given to supporting transport to the new school ‘as long as it is the designated or next nearest school’. The original school may be recharged the cost of transport. ‘If the pupil was not originally attending the designated school then travel assistance will only be considered if the new school is the designated school for the home address’.
• The designated school is the catchment school for the home address and can be checked via the Council’s website.
14. The policy provides an appeal process:
• Stage one – to a senior officer in the Children’s Directorate who will take into account any special circumstances
• Stage two – a Corporate Relations Officer will consider whether a panel will consider the case further.

Parents can then refer their case to the Ombudsman.

15. The Council’s website says about stage one ‘this is an independent appeal and will be looked at by a Children’s Services Officer not Education Travel’
16. In addition, complaints about the Council’s service can be considered under the Council’s corporate complaint procedure. This has two stages:

Stage One has two parts:

• Informal directly to the team responsible. If it is not resolved within five days it automatically becomes a formal complaint.
• Formal complaints are considered by a senior manager with a formal explanation of the Council’s response provided usually within twenty working days. If the complainant remains dissatisfied, they can ask for it to be considered at stage two.

Stage two:

• If appropriate, the Corporate Relations Officer will investigate the complaint and provide a written reply ideally within twenty five working days.

Complainants can then ask the Ombudsman to consider their complaint.

Chronology of events

17. Mr and Mrs X’s daughter attended School A from reception age. School A was their nearest school by distance, but not their catchment or ‘designated’ school, however they did receive free home to school transport.
18. Unfortunately, Mr and Mrs X’s daughter was bullied at School A, which led to Mr and Mrs X withdrawing their daughter from school.
19. In or about October 2018 Mr and Mrs X made a non-curriculum complaint about the way School A had handled the bullying of their daughter. At the same time they looked at moving their daughter to either School B or School C. Mr and Mrs X say the difference between the distance from home to School B and home to School C was 0.3 miles (School B was nearer) and both schools were beyond the statutory walking distance. They asked the Council what the position would be for school transport to either school.
20. The Council said transport would only be provided to School B as this was the designated school for their home address and places were available. The Council said it would not fund transport to School C.
21. Mr and Mrs X appealed the transport decision that their daughter must attend School B to receive free transport. They wanted her to attend School C and gave reasons why they considered it to be more suitable and requested transport be provided on exceptional circumstances grounds.
22. On 17 October 2018, the Council refused the appeal as School C was not the designated school for their address.
23. The Council however said if the non-curriculum complaint was upheld it could reconsider an application for transport to School C under exceptional circumstances.
24. The Council said if Mr and Mrs X remained dissatisfied they could use the ‘Council’s corporate appeal process’.
25. Internal Council documents from October 2018 show the cost difference between transport to the three schools was as follows:
• School B (designated) – 5 miles - £20 per day to add to existing mini-bus contract
• School A (nearest) – 3.9 miles - £55 per day to divert existing mini-bus contract
• School C (parental choice) – 5.9 miles - £95 per day to set up new taxi.

As far as I am aware this information was not shared with Mr and Mrs X.

26. The Council told Mr and Mrs X it could not offer a seat under its vacant seat scheme from Mr and Mrs X’s area (this is where children who are not eligible for transport can purchase an empty seat on an existing contract bus). The Council said if Mr and Mrs X were willing to take their daughter to a pick-up point 2.2 miles away they could use the vacant seat scheme for a bus to School C serving that area.
27. In November 2018 Mr and Mrs X asked their Member of Parliament (MP) to write on their behalf. They said as the Council would fund transport to School B, they would be happy to pay the costs of the additional 0.3 miles to School C. The MP asked the Council to look into the matter. The Council treated this as a formal complaint.
28. I cannot see the MP received a reply at stage one of the complaints process.
29. In December 2018, the Stage Two Investigating Officer (a Manager from the corporate complaints team) met Mr and Mrs X to agree the scope of their ‘complaint’. Notes of this meeting stated Mr and Mrs X had ‘made an appeal under the corporate complaints process’. The Investigating Officer then interviewed transport and placement managers in January / February 2019 as part of the complaint investigation.
30. Mr and Mrs X’s non-curriculum complaint was upheld in February 2019 with the finding School A had not had robust enough procedures in place to address bullying. Mr and Mrs X shared the findings with the transport team.
31. The Investigating Officer produced a complaint report on 1 March 2019. This stated the outcome of the non-curriculum complaint had been shared with the Council’s placement team. Although the team was sympathetic to the circumstances, it said the Council’s policy had been followed and it was parental choice for Mr and Mrs X’s daughter to attend School C.
32. The Investigating Officer did not uphold the complaint about a failure to provide transport on the basis that:
• the Council’s transport policy had been correctly followed
• if Mr and Mrs X’s daughter attended School B then free transport would be provided
• School C was parental preference and the additional distance between School B and School C was almost a mile.
33. On 11 March the Council confirmed, after considering the Investigating Officer’s report, the complaint was not upheld. The letter advised if Mr and Mrs X remained dissatisfied they could ask for the complaint to go to a review panel.
34. Mr and Mrs X were dissatisfied but their request for a review panel was refused. The Council said as the panel could not overturn a properly made decision of officers to refuse transport, a stage three review panel would not be an efficient use of public resources.
35. Mr and Mrs X then brought their complaint to the Ombudsman

Analysis

36. The Ombudsman cannot by law interfere with the professional judgments of Council officers where they have been properly made in accordance with the law and local policy. We can only consider whether there has been any fault in the decision-making process. If there has been no fault in the process, then we cannot replace our view for that of the Council. We are not an appeal body. (Local Government Act 1974, section 34(3), as amended
37. When a child needs to move schools due to bullying, provided the parents have made a formal non-curriculum complaint, the Council’s transport policy indicates the Council may be willing to consider providing free home to school transport to a different school. The scenario envisaged in the policy is that a child is attending their designated school but needs to move to a further away school, thus increasing the potential transport costs for the authority. In this scenario if a bullying complaint is upheld, and it is in the child’s interests to move schools, the Council will provide transport.
38. The scenario in Mr and Mrs X’s case was that their daughter was not attending their designated school. Mr and Mrs X wanted to move their daughter to another school, but not to the designated school. This did not meet the criteria in the Council’s policy which says:

‘If the pupil was not originally attending the designated school then travel assistance will only be considered if the new school is the designated school for the home address’.

39. The Council refused transport to School C because it was not the designated school and there were places available at the designated school. This was in line with its policy. It also rejected the application at the stage one appeal on the same grounds.
40. However, the Council also told Mr and Mrs X that it would ‘reconsider’ an application after the completion of the non-curriculum complaint. It is unclear why the Council advised Mr and Mrs X to resubmit their application as the Council’s later actions indicate it was not willing to disapply it’s policy that assistance would only be considered to the designated school. The Council internal documents in February 2019 confirm this. It seems what happened was that under the policy the Council expected to make a transport decision after the school complaint was complete, but in Mr and Mrs X’s case they accepted and decided the application before the school complaint was heard.
41. I find the Council unreasonably raised Mr and Mrs X’s expectations that the application would be considered differently if the non-curriculum complaint was upheld, when this was not the case. The Council’s policy was clear an application to School C would not be considered because it was not the designated school. The only basis for an application on exceptional circumstances was if there were other exceptional reasons why Mr and Mrs X’s daughter needed to attend School C rather than School B.
42. Mr and Mrs X calculated the additional distance between School B and School C as 0.3 miles, while the Council calculated it as 0.9 miles. Mr and Mrs X believed the additional cost of the extra distance would be minimal and offered to pay the extra costs. However, because of the way mini-bus routes are organised it was not as simple as just calculating the extra mileage cost. The extra cost of transport to School C was £75 per day more than transport to School B. It would have been helpful if the Council had shared this information with Mr and Mrs X to manage their expectations. Had they had this information at the first appeal in October 2018 Mr and Mrs X would probably have realised at a much earlier stage that their application would be highly unlikely to be successful.
43. I find no fault in the way the Council applied its policy at first instance or at the first stage of appeal. The policy did say it would consider moves due to bullying but only transport to the designated school.
44. I find there was fault and confusion in the way the Council operated its stage two appeal process and complaints process. There is an important distinction to be made between appeals and complaints. Appeals are where a reviewer or review panel stand in the Council’s shoes and can re-take the decision afresh, with the ability to make a different decision if, for example, they are persuaded that there are exceptional circumstances that mean it is ‘necessary’ to use the Council’s discretionary powers under s.508C. A complaint process is a review of the service provided where a complaints officer will consider if there was fault or errors in the process. A complaint officer may not have the power to retake the decision but may put it back to the original team to reconsider if fault is found.
45. It seems in this case the Council has confused itself and Mr and Mrs X about these two approaches. This is evidenced by the references to a ‘Corporate appeals process’, which seems to merge and confuse the two processes. The Council’s Corporate Relations Officer had two roles:
• To carry out stage two investigations under the complaint process.
• To decide if a stage two transport appeal panel should be held.
46. What the Council should have advised in the appeal letter of 23 October was that Mr and Mrs X had the right to request their transport appeal be considered at stage two under the Council’s transport policy (and in line with statutory guidance on appeals).
47. The statutory guidance recommends a two stage appeal process for transport appeals. The Council’s transport policy only partly follows the recommended practice in the statutory guidance because although it has two stages to its appeal process – Stage One to a Children’s Services Manager and Stage Two to a Panel, parents do not have an automatic right to appeal to an independent transport appeal panel. It is for the Corporate Relations Manager to decide whether to allow an independent transport panel to hear the appeal. This approach is not compliant with statutory guidance which recommends all cases should be considered by a transport appeal panel at which parents can give oral and written evidence.
48. When Mr and Mrs X’s MP wrote in November, the Council treated this letter not as a request for a stage two transport appeal, but as a corporate complaint. Mr and Mrs X then got sent down the complaint route when what they wanted was their appeal to be heard at the second stage. Mr and Mrs X were not complaining about the service but about the decision.
49. While the Council treated the MP letter as a complaint, as far as I can see it did not provide a stage one response to the complaint but jumped straight to an independent investigation at stage two. This was fault and a failure to follow the Council’s own policy.
50. Further, the Council had told Mr and Mrs X that although their application had failed in October 2018, they could apply again after their school complaint was complete for it to be ‘reconsidered’. What therefore should have happened in February 2019 (when Mr and Mrs X provided the outcome of the school complaint) was that the case be treated as a new transport application. A fresh decision should have been made taking into account the outcome of the school complaint. The decision should have been followed by a two stage appeal process. This did not happen and was fault.
51. The Corporate Relations / Complaint Manager held a complaint meeting with Mr and Mrs X in December, carried out an investigation, and produced a complaint report. The Council then told Mr and Mrs X their ‘complaint’ was not upheld. Mr and Mrs X requested a panel meeting at stage three, but this was refused because no fault in the Council’s transport decision-making had been found and the (stage three complaints) review panel could not reverse the transport decision as it could only follow council policy. Mr and Mrs X queried the purpose of an independent review panel if it could not overturn the transport decision.
52. Understandably, Mr and Mrs X were confused and may not have understood that the review panel being refused was a stage three complaint panel which would review the findings of the complaint only. This was different to an independent review panel used to review transport appeals at stage two, which would have the ability to reverse transport decisions.
53. As Mr and Mrs X’s first (October 2018) application never proceeded to the stage two appeal and their second (February 2019) application was not considered at all, the Council never considered whether to hold an independent transport appeal panel to consider the case. This was fault.

Summary

Fault

54. There was fault by the Council in:
• Not properly explaining that the October 2018 application had a right of appeal at two stages, including to an independent panel if appropriate
• Having a policy where stage two appeals were only considered by an independent transport panel on the say of the Corporate Relations Officer when the statutory guidance considers this opportunity should be offered to all applicants
• Wrongly raising parental expectations that the outcome of the school complaint would have some bearing on the transport application for School C, when the Council’s policy would not generally allow transport to School C when a place was available at School B
• Not processing the February 2019 correspondence as a new application in line with the promise made to the family that they could ask for another consideration of their case
• Unnecessarily launching a complaint investigation when the stage two appeal process should have been used instead (following which a referral can be made to the Ombudsman without the need for a separate complaint)
• Failing to provide a response at stage one of the complaint process, proceeding directly to stage two.

Injustice

55. It is difficult to say that, ‘but for’ the fault, the outcome of the transport application would have been different. The Council’s policy is clear it will provide transport only to the designated school where bullying has led to a child having to move schools. Here the extra cost of transporting to the parental preference school was significant and there would need to have been very exceptional reasons why School B was also not suitable.
56. However, the loss of any appeal right is, in itself, an injustice and a breach of the rules of natural justice and fairness.
57. I find that Mr and Mrs X have suffered injustice in that:
• They have had the time and trouble of an unnecessary complaint process
• They have been denied a stage two appeal to an independent transport panel with the opportunity to provide oral and written evidence
• They were misled about the basis on which the Council would reconsider the application after the outcome of the school complaint and their expectations were falsely raised.

Agreed action

58. Mr and Mrs X’s application for transport has never been considered at stage two of the appeal process. Mr and Mrs X still wish to proceed to a stage two appeal hearing with an independent transport panel and the Council has agreed to organise this within four weeks of my final decision.
59. Within four weeks of my final decision:
• the Council will apologise to Mr and Mrs X for the faults identified and confusion caused
• the Council will pay Mr and Mrs X £250 for their time and trouble going through an unnecessary complaints process instead of being directed to the stage two appeal process.
60. Within eight weeks of my final decision the Council will review its appeal and complaint mechanisms to ensure that:
• Its appeal process is compliant with statutory guidance or clear explanations are given as to why the statutory guidance is not to be followed
• That Officers understand the difference between a complaint and an appeal and guidance given to members of the public is clear about which is the appropriate process to use. Use of phrases like ‘corporate complaints appeals process’ will cause unnecessary confusion. The Council must be clear about when a challenge has been received about the decision (an appeal) and about when a complaint has been received about the transport team (for example for poor service).

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Final decision

61. There was fault and a failure to follow the local policy and statutory guidance when the Council considered an application for home to school transport. This caused unnecessary confusion, time and trouble to Mr and Mrs X. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman