Summary: Mrs C complains that the Council was wrong to refuse her daughter D, transport to the secondary school at which she was offered a place for September 2019. The Council gave some misleading reasons for refusing transport. That was fault, and the Council has agreed to provide further training for officers. However, the decision to refuse transport is in line with the Council’s policy and so it is not for the Ombudsman to question the merits of that decision.

The complaint

1. Mrs C complains that the Council unfairly refused school transport for her daughter, D, to her present school, although this was the nearest with places available.
2. She says that:
• the Council advised her that there was no point is applying for a place at her nearest school and then penalised her for failing to do so;
• she was not given enough information about the implications of applying for her chosen school on her daughter’s eligibility for school transport; and
• after refusing D transport to her present school, the Council’s school transport team advised Mrs C to apply for a place to the nearest Essex school, although this made no difference to her eligibility for transport.

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The Ombudsman’s role and powers

3. 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)
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 Mrs C’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses together with the appeal papers. I have considered the Council’s Home to School Transport Policy and secondary school admissions booklet, the Department for Education’s Home to school travel and transport guidance and the School Admissions Code. I have also sent Mrs C and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Transport for eligible children to the nearest suitable school

6. The Department for Education issued Home to School Travel and Transport Guidance (the statutory guidance) in July 2014. (The Education Act 1996 sections 508 and 509, and part 6 of the Education and Inspections Act 2006)
7. Councils are required to make travel arrangements and provide free transport for “eligible children” of compulsory school age to attend their nearest suitable school. Eligible children are defined in Schedule 35B of the Education Act 1996 and include:
• children living outside “statutory walking distance” from the school (two miles for children aged under eight, three miles for children between eight and 16);
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if the school is between two and six miles (aged 11 to 16 and for transport to one of their three nearest qualifying schools).

Discretionary transport

8. Councils can also provide transport or meet the cost of transport on a discretionary basis for children who do not meet the eligibility criteria. The guidance recognizes that an authority will need to balance demands against their funding priorities.

The Council’s policy

9. Under the Council’s policy, it will provide transport to children aged between eight and 16 living more than three miles from the nearest available school (within the Council’s administrative area). But it will not provide transport if:
• “There is any nearer school to the home for which a parent did not apply on the original admission application
• There is any nearer available school which was listed as a lower preference on the original admission application
• The parent has rejected an offer of a place at any nearer school.”
10. If an out-of-county school is the nearest available school, there will also be an entitlement to transport to that school as well as the nearest other maintained school or academy within the Essex County Council area, providing the distance criteria are met.
11. In the case of the low-income criteria, the Council will provide transport to a child in Years 7 to 11 who attends one of the three nearest available schools, provided that those schools are between two and six miles from their home address by the shortest road route.
12. If a child cannot be offered a place at the nearest school for the home address, the Council will, subject to the above conditions and the qualifying distance, provide transport to the next nearest school with space to admit.
13. The Council may also consider and agree requests for transport where there are considered to be exceptional circumstances. In such cases, it will have regard to whether those circumstances might have been foreseen – it considers that choosing a school other than a child’s nearest school and realising following this decision that transport is not available could be foreseen.
14. The policy is also summarised in the Council’s admissions guide Secondary Education in Essex 2019/2020: A guide to transferring from primary to secondary school. The Key Points to Remember section at the beginning of the guide also advises parents and carers:

“Make sure you read and understand the Education Transport Policy information on pages 24-26 if entitlement to school transport is important to you…”

What happened

15. Mrs C’s daughter, D, was due to transfer to secondary school in September 2019.
16. The nearest secondary schools to her home address are as follows:
• School 1 – nearest out-of-county school
• School 2 – 2nd nearest out-of-county school
• School 3 – 3rd nearest out-of-county school
• School 4 – 4th nearest out-of-county school
• School 5 – nearest Essex school
• School 6 – 2nd nearest Essex school
17. Mrs C says she contacted the nearest Essex school, School 5 (an academy outside the Council’s control), before applying for places. She says the school told her she would not get a place if she were to apply because she lived outside the catchment area. She therefore decided not to apply to School 5.
18. In the initial round of applications, Mrs C applied for a place for D at three schools in the following order:
1. School 3 (the 3rd nearest out-of-county school)
2. School 6 (the 2nd nearest Essex school)
3. School 2 (the 2nd nearest out-of-county school)
19. D was offered a place at School 6 on National Offer Day in March 2019 and applied for transport. In late June, the Council wrote to Mrs C and explained that D was not entitled to transport because she was not attending the nearest available school to her home.
20. Mrs C appealed. She said she had not put School 5 among her preferences because D was not in the catchment area and so would have no chance of getting a place.
21. The Council considered Mrs C’s appeal through its two-stage appeals process. At the first stage, it refused the appeal, explaining that:
• Mrs C had expressed a first preference for School 3, although this was not the nearest school;
• the criteria for providing transport and advice on how to find the nearest available school for transport purposes are set out in the secondary school admissions booklet; and
• this clearly states that, where a parent decides either not to apply for their nearest school or lists the nearest school as a lower preference on the original admission application, transport is not provided to a school further away.
22. Mrs C appealed again, saying that they had applied for the nearest school (School 3) and refused as it was oversubscribed, but had been offered a place at their second preference (School 6). They had not applied for School 5 because D would not have got a place. They had put schools in order of their daughter’s preference and completed the form to the best of their knowledge, not knowing that this would mean that D would not get transport. They had since applied for School 5, on the advice of the school transport team, but were refused.
23. The Council refused Mrs C’s appeal at the second stage, explaining that:
• School 6 is not the nearest (Essex) school to their home address:
• they had not applied for the School 5, the nearest (Essex) school, in the original admissions round, and transport is not provided where a parent does not originally apply but then unsuccessfully applies at a later date;
• as stated in the policy and the admissions booklet, if a parent does not apply for the nearest school, transport is not provided unless the low-income criteria are met;
• it provides details of the nearest school on request and considered that it had made sufficient information available for Mrs C to reach an informed decision on how D’s preferences would affect her eligibility for transport.

Analysis

Incorrect advice

24. Mrs C says that the Council advised her that there was no point is applying for a place at her nearest school. However, she says she initially contacted the nearest school to check if D would be likely to get a place.
25. I see no fault here on the part of the Council. Any advice received from the school does not involve the Council because the school is an academy and not under the Council’s control.
26. As to Mrs C’s suggestion that the school transport team advised her to make a late application to School 5 to be eligible for transport, the Council says it has no evidence of this, and questions why officers would give such incorrect advice.
27. In the absence of independent evidence, I can make no findings on this. In any event, this did not affect D’s eligibility for transport.

Decision to refuse transport

28. Mrs C says she was not given enough information about the implications of applying for her chosen school on her daughter’s eligibility for school transport, so the Council should not refuse transport.
29. The Council refused transport because Mrs C had not applied for a place for D at the nearest Essex school, School 5. There was no fault in the Council’s decision to refuse transport on this basis, because this is in line with the Council’s policy.
30. That said, there were incorrect references to the nearest and/or nearest available schools in the Council’s refusal letter and appeal responses. This was fault, but it does not mean that there was fault in the Council’s decision to refuse transport. The Council has agreed to further officer training to ensure there is a clear understanding of the policy.
31. As to the availability of information, the Council provides appropriate information in both its school transport policy and secondary admissions booklet. I appreciate that this may require careful reading, but it is open to parents and carers to contact the Council if they need assistance in understanding how the policy applies.

Agreed action

32. The Council has agreed to officer training to ensure that there is a clear understanding of its policy. The Ombudsman recommends that it do so within one month of the date of the decision on this complaint.

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Final decision

33. I have closed my investigation into Mrs C’s complaint. Although there were misleading statements in the decision to refuse transport and the subsequent appeal, this does not mean that the decision itself was wrong, and the Council has agreed to training to ensure that officers understand the application of the policy.

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Investigator's decision on behalf of the Ombudsman