The Ombudsman's final decision:
Summary: Mr B complains that the Council was wrong to refuse his younger son, D, transport to and from the grammar school that he attends. There was no fault in the way that the Council refused transport for D or Mr B’s subsequent appeal.
- Mr B complains that the Council:
- has wrongly refused to provide home to school transport for his younger son, D to his grammar school;
- has wrongly refused to consider the alternative safe routes which he has provided which demonstrate that the grammar school is the nearest school to his home when using the nearest available route; and
- has an unclear and contradictory policy which does not comply with the law and statutory guidance in the way it determines the nearest suitable school.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have considered Mr B’s written complaint and supporting papers and spoken with him. I have made enquiries of the Council and considered its responses. I have had regard to the Council’s Home to School Transport Guidance and the Department for Education’s Home to school travel and transport guidance. I have also sent Mr B and the Council a draft decision and invited their comments.
What I found
Legal and administrative background
Transport for eligible children to the nearest suitable school
- 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)
- 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).
- Under Section 508C of the Act, Councils can “make such transport arrangements as they consider necessary” on a discretionary basis for children who do not meet the eligibility criteria under Section 508B. The guidance recognizes that an authority will need to balance demands against their funding priorities.
The Council’s home to school transport policy
- The Council assesses school transport applications for students according to the criteria in its Home to School Transport Guidance. The guidance is reissued each year and applies to that specific school year. The 2019/20 guidance explains that:
“To qualify for free school transport a child must attend their nearest appropriate school for transport purposes and for that school to be over the statutory distance from their home. Free school transport will not be provided where a child only fulfils one of these criteria.”
- The guidance includes sections explaining how it determines the Nearest Appropriate School and Statutory School Distance. It also explains how to appeal a school transport decision.
Nearest Appropriate School
- The Council’s guidance explains:
“While parents are free to name any school they wish during the admissions process, their child will only be eligible for free transport where the school selected is their nearest appropriate school for transport purposes...”
“When considering which school is a child’s nearest appropriate school for transport purposes, KCC’s transport criteria only considers the following two points:
i) Age appropriate – relating to attendance at a Primary or Secondary school
ii) Ability appropriateness – relating to attendance at a mainstream or special school”
“The nearest appropriate school for transport purposes is the nearest school that is considered suitable by the Department for Education to provide education for the child’s age and ability. This includes all Academies, Free schools and faith schools…”
“Children assessed suitable for a Grammar school do not automatically secure eligibility for transport assistance to a Grammar school. A Grammar school is a parental choice and where it is not the nearest school, there may be no eligibility to receive transport…”
“Where a younger sibling will attend the same school as an older sibling, who currently receives transport assistance, the younger sibling will not necessarily receive transport assistance just because the older one does. Each child is assessed in accordance with Kent’s Transport guidance on an individual basis at a given time.”
Statutory School Distance
- The Council’s guidance explains:
“Statutory school distance is set in legislation... A child’s school must be over the statutory school distance for them to be considered for free school transport… For children over 8 years of age… the school must be over 3 miles…”
KCC will initially identify your nearest appropriate school via the shortest available route… Route assessments may take into account public footpaths, bridleways, other footpaths as well as recognised roads where they are available…”
“This initial assessment will not consider whether the chosen route is of a hazardous nature as there is no expectation that children will necessarily use this specific route… This stage simply establishes which school is the closest school to your home.”
“All distances between children’s homes and schools are measured using Kent County Council’s own software... In this way, all children are assessed consistently in the same way under the distance criterion and conditions…”
“…Once your nearest school has been established, KCC will not consider the route your child may take to any other school, as they will not be eligible to receive free school transport to that school.”
- The Council offers a two-stage appeal process in respect of decisions on home to school transport. The first stage is an officer review of the decision. The second stage is an appeal to a panel of elected members.
- Mr B’s elder son, C, has attended his nearest grammar school since 2017. He was not awarded transport to the school when he first applied. However, Mr B appealed and transport was awarded on appeal as the panel was not convinced that the transport policy in force at the time had been correctly applied.
- After a complaint to the Ombudsman from a third party, the Council agreed to make some changes to its policy because there was a lack of clarity over how it measured the nearest appropriate school for transport purposes. The Council amended its policy, and these changes were in place in the 2019/20 policy.
- Mr B’s younger son, D, was awarded a place at the same grammar school for September 2019. Mr B applied for home to school transport for D. The Council refused his application because D was not attending the nearest appropriate school, which the Council considers to be an Academy 3.889 miles from the family home. The distance to the grammar school is 4.194 miles using the Council’s measurement system.
- Mr and Mrs B disagreed with the Council’s decision and corresponded extensively with officers. They felt that the Council should compare distances using the nearest safe routes. They provided alternative safe routes which they say showed that D’s grammar school was the nearest school, so they felt that the Council should provide transport. They also considered that the Council’s policy was unclear and contradictory and did not comply with the law and statutory guidance.
- Officers’ responded but did not consider that there was fault in the way the Council had considered D’s application. Mr and Mrs B then appealed to the members panel. The panel considered their written and oral representations but did not uphold their appeal.
- It seems to me that the crux of Mr B’s complaint is that he considers that the Council should take route safety into account when determining the nearest school. He says that, on this basis, D’s grammar school is the nearest school to their home and the Council should provide transport.
- The law and statutory guidance require Local Education Authorities to provide free transport to the nearest suitable school if it is over the Statutory School Distance. In this case, the Statutory School Distance is three miles because D is over eight years of age. The Academy, which is the nearest school appropriate to D’s age and ability (i.e. the nearest suitable school), is more than three miles from D’s home. So, if Mr and Mrs B had applied to the Academy for a place for D, the Council would have had a duty to provide transport for D to the Academy. However, the Council has no statutory duty to provide transport to D’s grammar school because it is not the nearest school appropriate to his age and ability.
- Councils may also be required to provide transport to the nearest suitable school where the home to school distance is less than three miles but the route is unsafe to walk. In such as case, as set out in section 22 of the statutory guidance, the Statutory School Distance would be measured by the shortest route along which a child, accompanied if necessary, may walk safely. If the shortest safe route to the nearest suitable school is then measured as over three miles, the child would be eligible to transport to the nearest suitable school. However, the safety of the route is not relevant here, because there is already an established entitlement to transport to the nearest suitable school, the Academy, because it is more than three miles from D’s home.
- I appreciate that Mr B considers that the Council should measure route safety when determining the nearest suitable school. But neither the law nor the guidance requires it to do so. Moreover, I consider that the Council’s own guidance, from which I have quoted excerpts above, clearly sets out how it determines the Nearest Appropriate School and the Statutory School Distance.
- I have closed my investigation into Mr B’s complaint because I have found no fault in the way the Council refused transport for his son.
Investigator's decision on behalf of the Ombudsman