Summary: Mr B complains that the Council has not dealt with his school transport appeal properly, following an earlier complaint to the Ombudsman. The Council did not follow its policy or the Statutory Guidance because it did not measure a safe walking route. The Council has agreed to measure the distance along the actual route it says Mr B’s daughter should walk to school and review its policy. If the distance is over three miles the Council should provide Mr B’s daughter with transport and re-imburse him for his daughter’s travel costs since his initial application.

The complaint

1. The complainant, whom I shall refer to as Mr B, complains that the Council did not deal with an application for transport to school for his daughter properly. Mr B is concerned that the Council has not properly considered the distance his daughter would have to travel and has not properly considered his representations about safety. Mr B says his daughter has wrongly been denied transport assistance.

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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. 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)
4. 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)
5. 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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How I considered this complaint

6. I spoke to Mr B and considered the details of his complaint. I reviewed documents sent by the Council about Mr B’s appeal.
7. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Law, Statutory Guidance and case law

Eligibility for free school transport

8. The Education Act 1996 says councils must provide free school transport to eligible children. The term ‘eligible’ means children of compulsory school age who meet certain criteria.
9. The eligibility criteria relevant to this complaint are that:
• The child (aged at least 8 years old) must live at least 3 miles away from school using the shortest route along which a child, accompanied if necessary, may walk safely or,
• The child cannot reasonably be expected to walk the route to school because the nature of the route is unsafe to walk.

Assessing routes to school

10. The Home to school travel and transport statutory guidance 2014 (The ‘Guidance’) says that to assess whether a route is safe to walk, councils,

“Should consider a range of risks, such as: canals, rivers, ditches, speed of traffic and fields of vision for the pedestrian or motorist. A [council] should also consider whether it is reasonable to expect the child’s parent to accompany the child along a route which would otherwise be classified as being unsafe”.

11. The Statutory Guidance does not specify a method councils must use to assess route safety or how they should measure distances.

The Council’s transport policy

12. The Council’s policy for secondary age children is to provide travel help where there is no available walking route of three miles or less.
13. The Council measures distances by the 'shortest available walking route', which is defined as the shortest route along which a child, accompanied as necessary, may walk safely.
14. The Council policy sets out the assessment criteria it uses to decide if a walking route to school is hazardous. Officers apply the criteria to decide if a walking route is reasonably safe. (Derbyshire County Council Transport Policy for Children and Young People September 2019 Appendix A)

What happened

15. Mr B complained to the Ombudsman about a school transport appeal. The Ombudsman found fault by the Council and recommended the stage two appeal be reconsidered. The Council reconsidered the stage two appeal but did not uphold it.
16. The Council allowed Mr B a period of time to submit comments about the safety of the routes which were considered. Mr B provided his views on this to the Council. The Council considered Mr B’s representations and inspected the routes. It decided the routes it had used were safe.

Analysis

17. The Council uses a Graphical Information System (GIS) to measure distances when assessing transport to school application. The Guidance does not specify how the Council should measure distances. The use of GIS in itself is not fault by the Council.
18. The Council says GIS is accurate to approximately two metres when measuring distances. This is the accuracy of the specific distance measurement itself, not a comparison between different routes.
19. Mr B lives very close to the distance limit for transport to school assistance. Where applicants live within very close proximity to the distance limit, small differences between a GIS measured route and an actual safe walking route may be the difference between whether travel assistance is provided or not.
20. The Guidance says councils must measure routes which are safe to walk. The appeal notes show that the Council used GIS to measure down the centreline of roads to calculate the distance used to determine Mr B’s appeal.
21. The appeal notes show that the Council’s GIS measures to the centre point of junctions. The Council says this can be further than the actual walking distance and that route measurements average out. The Council has not provided any evidence to support this assertion in relation to this complaint. The Council have manually measured the distance from his home to school in the past and found it exceeded three miles while the more recently used GIS measured distance is under three miles. On the balance of probabilities, this shows GIS measurements do not always average out because the measured distances differ.
22. Mr B says the measured route should include ‘hill contour distances’. There is no requirement in the Guidance that Councils should take account of this when measuring distances to school. Whether to do so would be down to the professional judgement of the Council. The Ombudsman would be unlikely to find fault regarding this.
23. The route the Council has measured cannot be safe to walk because the Council does not expect children to walk along the centreline of roads. The Council has therefore not followed statutory guidance or its policy. This is fault by the Council. Mr B has suffered injustice because the Council has not measured a safe walking route. This has also resulted in uncertainty over the distance Mr B’s daughter has to walk and her eligibility for transport assistance.
24. The Council’s Hazardous Routes Panel (HRP) considered Mr B’s representations, collision data and Appendix A of its policy when it reviewed the safety of both routes. The HRP considered all the safety issues raised by Mr B. Mr B does not agree with the decision made by the Council regarding the safety of the routes considered. This is not fault by the Council.

Agreed action

25. To remedy the injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision.
• Measure the distance of the actual safe walking route Mr B’s daughter is expected to take, by a method of its choosing.
• If the distance is over three miles, the Council should provide Mr B’s daughter with travel and refund Mr B’s travel costs for his daughter since she started attending the school.
• Review its policy regarding how it uses GIS to measure distances, particularly in marginal cases where distance calculations are disputed.

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Final decision

26. I have found fault by the Council about how it dealt with a school transport appeal. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman