Summary: Miss B considers that the Council was wrong to refuse her eldest child transport to the secondary school that he attends. The Ombudsman has found no fault in the Council’s decision to refuse transport, because there was a nearer available school for which Miss B chose not to apply.

The complaint

1. Miss B complains that the Council was wrong to refuse home to school transport for her eldest child, C, because she did not put the second closest school to their home on the application for a place in Year 7. She says she was in any event only offered a place at a school further away, so it would have made no difference to her school application had she put the nearer school on the application form.
2. She says this has had a significant impact on her family because they are on a low income and the Council also says they are ineligible for transport under the low-income criteria.

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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 Miss B’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 Miss B 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. 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. In the case of the low-income criteria, the Council will provide transport to a child in Years 7 to 11 who attend one of the three nearest available schools providing that those schools are between two and six miles from their home address by the shortest road route.
11. 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.
12. 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.

What happened

13. Miss B has three children. She had to choose a secondary school place for her eldest child, C, when he was due to transfer in September 2019.
14. In the initial round of applications, she applied for a place for C at three schools, placing her preferences in the following order:
1. School 3 (the 3rd nearest school)
2. School 1 (the nearest school)
3. School 4 (the 4th nearest school)
15. She later added School 6 (the 6th nearest school) to her application.
16. Miss B did not want C to go to School 2 (the 2nd nearest school), so she did not put School 2 on the application form.
17. Unfortunately, C did not get a place at any of his preferred schools. The Council therefore allocated him a place at School 5 (the 5th nearest school), which was the nearest school with a place available. School 5 is more than six miles by road from Miss B’s home.
18. Miss B applied for free school transport for C. The Council refused her application because C was not attending the nearest available school.
19. Miss B appealed. She said:
• she had not put School 2 among her preferences because she did not want C to attend the school;
• C had been offered a place at the nearest school with places available;
• she was unaware that there might be issues with transport because the schools that C applied for were in the same direction as those that her younger two children attend and she planned to take all the children to school together;
• they were a low-income family and this would cause hardship and difficulty getting her children to two different locations.
20. The Council considered Miss B’s appeal through its two-stage appeals process. It explained that:
• the criteria for providing transport are set out in the secondary school admissions booklet with advice on how to find the nearest available school for transport purposes;
• this outlines that transport entitlement is based on attendance at the nearest available school;
• the “key information” section on the first page of this document stresses the need to read and understand the Education Transport policy information if transport is an important factor in choosing a school;
• C is not entitled to transport because he is not attending the nearest school with places available – had Miss B applied for a place at School 2 in the initial admissions round, C would have been offered a place at School 2;
• C is also not eligible under the low-income criteria because the school he attends is beyond the statutory distance of six miles.
21. Miss B has explained that the refusal of transport has caused her considerable difficulty. She has to drive C to his current school as she cannot afford to pay £15.50 a week for his transport. She has also had to move her two younger children to schools nearer to C’s school so that she could take them all.
22. Although C was later offered a place at both School 1 and School 2, she did not want him to have to move schools because he was settled.

Analysis

23. The eligibility criteria for school transport are clearly set out in the Council’s secondary school admissions booklet and parents are advised that they need to have regard to that policy if school transport is an important factor in their choice of school.
24. Miss B did not put School 2 on her application form. As School 2 is nearer to her home than C’s present school, C was not entitled to transport under the Council’s policy because she had not applied for a nearer school.
25. Moreover, had Miss B applied for School 2, a place would have been available. So, C was also not entitled to transport because there was a nearer school with places available.
26. Lastly, although Miss B meets the financial component of the low-income criteria, C is not eligible under the low-income criteria because the school he attends is more than six miles from the family home, and therefore outside the distance component of the low-income criteria.
27. I understand that Miss B did not want C to attend School 2, and her desire to send hm to a school that she felt was best for him. I also appreciate that this is a difficult situation for Miss B and her family. However, I see no fault in the way the Council has considered Miss B’s school transport application, so I cannot question the merits of the Council’s decision to refuse transport for C.

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Final decision

28. I have closed my investigation into Miss B’s complaint because I have found no fault in the Council’s decision to refuse transport for her son, C.

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Investigator's decision on behalf of the Ombudsman