Summary: Mr B complains the Council did not award school transport help for his daughter. Mr B says he lives over the statutory walking distance away from the school. He says the Council uses two different mapping systems, which produce two different distances. The Ombudsman finds fault in how the Council considered Mr B’s appeal. We also find fault in the information the Council provides about how it measures distance.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council declined his application for school transport assistance. He says the Council’s online mapping system shows he lives 3 miles away from the school, so over the statutory walking distance. However, it uses a different system in practice, which says he is 2.9 miles away. Mr B says the Council should use the system advertised on their website. He also says the Council did not tell him it had a second stage to its appeal procedure.

Back to top

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)

Back to top

How I considered this complaint

4. I considered the information Mr B provided and spoke to him about his complaint. I then made enquiries of the Council. I sent a copy of my draft decision to Mr B and the Council for their comments.

Back to top

What I found

Legislation and Guidance

5. Councils have a duty to provide free home to school transport for eligible children to qualifying schools.
6. Eligible children are defined as:
• children living outside the ‘statutory walking distance’ from their nearest suitable school (two miles for children under eight, three miles for children between eight and 16)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk
7. A suitable school is defined as the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child.
8. The Government has set out a recommended two stage review and appeals process for parents who wish to challenge a decision about their child’s eligibility for travel support:
• Stage one: Review by a senior officer.
• Stage two: Review by an independent appeal panel.
9. Although these are only recommendations, they are based on statutory guidance. The intention was to ensure a consistent approach across all areas and to provide a completely impartial second stage. Therefore, the Council would need good reason to divert from them.
10. Councils have the power to provide discretionary funding for children who are not eligible.

Council’s Policy

11. In the Council’s policy it said:
• ‘The two and three mile minimum distances are measured by the nearest available walking route and verified by the Council, or its agents, by appropriate means. These may include calculations using computer generated mapping systems. The stated distances are an exact measure and they cannot be considered as marginal. The Council may commission an independent assessment of the length and safety of a particular route, but will only do so at its discretion in exceptional cases.’
12. The policy also set out its appeals process. It said:
• ‘First Stage – Appeal forms are initially reviewed by a panel of three Officers. Those appeals that are outside of the published criteria and/or are simply disagreeing with the decision without providing evidence to support a case will not proceed to Stage Two, and the parents will be notified. Parents will still have an option to make a referral to the Local Government Ombudsman, who may be able to investigate their complaint further.
• Second Stage – Formal Transport Appeal Hearing heard by School Transport Appeals Panel. The quorum for a Panel hearing is three elected members appointed to the Panel.’
13. The Council changed its policy in late 2019 following a separate decision by the Ombudsman. That decision found the Council’s appeals procedure was flawed as it did not follow the recommended procedure set out in the statutory guidance. It allowed the Council to fetter its discretion on which appeals to pass through to the second stage. The Council says it now offers a Stage 2 appeals panel to all appellants.

Background

14. Mr B’s daughter, Y, started secondary school in September 2019. Mr B says Y suffers from anxiety due to a traumatic event. He applied for a school where most of her friends were going but was not successful because of oversubscription. He lived outside the catchment area.
15. Mr B says he met with the headteacher at his nearest school (“School 1”) and looked around the school. However, none of Y’s friends were due to go to this school and he was concerned how this would impact on her anxiety. Mr B says he discussed this with the headteacher, who suggested another school would be more suitable. Mr B then applied for a school (“School 2”), which is also close to his home but further away than School 1. Mr B says several of Y’s close friends were starting at this school, so it was a more suitable choice.
16. School 2 accepted Mr B’s application. He checked the Council’s website to see what assistance it would provide for transport. The website provides information about the statutory walking distances. It also has a link to a route mapping program called ‘My Journey’. It says, ‘Go to the My Journey website to find the shortest safe walking distance to your school.’
17. Mr B checked the distance, using his home address and School 2’s address. It showed Mr B was 3 miles from School 2, so over the statutory walking distance.
18. Mr B applied for school transport. However, the Council refused his application because Y was not attending her nearest school, School 1. Mr B appealed the Council’s decision, saying School 1 was not suitable for Y. He gave the reasons set out at Paragraph 15 and provided letters in support from her primary school headteacher and a health professional. He also said it would be difficult for him to provide transport for Y due to his other daughter being at primary school further away.
19. The Council responded to Mr B’s appeal at Stage 1 of its procedure. It did not comment on whether School 1 was a suitable school. However, it said Mr B was only 2.8 miles away from the nearest entrance to School 2, so under the statutory walking distance. The Council said it had considered the information about Y’s anxiety and was sympathetic. However, it did not consider there was evidence of special grounds that a full panel would consider at Stage 2. It did not offer Mr B the opportunity to appeal to a panel at Stage 2.

Findings

20. As set out at Paragraph 13, we recently found the Council’s appeals procedure was flawed. Mr B appealed under the old procedure and was not given the option of a Stage 2 hearing. I therefore find fault in the Council not giving Mr B the chance to attend a Stage 2 hearing.
21. The question I must consider is whether this caused Mr B injustice. It is my view this did cause injustice to Mr B for the following reasons:
• Had the Council followed the recommended procedure in the statutory guidance, he would have had the chance to present his case in person rather than only in writing
• There was fault in the way the Council considered Mr B’s appeal at Stage 1. It made a new finding, which it did not then allow Mr B to appeal
• There is fault in the information the Council provides to parents about distances

Representations in person

22. The recommended procedure says Stage 2 panels should consider written and verbal representations from parents and the officers involved.
23. I understand that three independent officers reviewed Mr B’s case at Stage 1. This is more than the recommended check by an individual officer. However, those officers made their decision purely based on Mr B's submissions in writing. The fact he could not attend and give representations in person put him at a disadvantage compared to others whose cases the Council might have passed to a Stage 2 panel hearing.

Stage 1 appeal response

24. The Council’s original decision was that it would not provide transport when Y was not attending her nearest school. Mr B appealed that decision. He said that School 1 was not a suitable school. The implication being that School 2, rather than School 1, was Y’s nearest suitable school.
25. The Council does not comment on this point at all in its response. It only says Mr B is 2.8 miles away from the School 2. I appreciate that, if both School 1 and School 2 are under the statutory distance then it could make any argument about which is the nearest suitable school redundant. However, the Council should have responded to the basis of the appeal (the suitability of the school), even if it then went on to explain this.
26. I also note the Council did not say anything about the distance to School 2 in its original decision. It made a new finding on this in its Stage 1 response. Therefore, Mr B did not, and could not have, appealed the Council’s finding on distance at Stage 1. He could only have done so by proceeding to a Stage 2 hearing.
27. The statutory guidance says that measurement of distance is a ground for appeal. Therefore, even following the policy it had in place, the Council was wrong to say there were no grounds for a full panel to hear the case at Stage 2. By not allowing Mr B to proceed to Stage 2, the Council denied Mr B the opportunity to challenge its finding on distance. This causes him an injustice.

Information about distance

28. I do not find fault in the Council’s policy to measure the distance from the nearest entrance. The Council is entitled to make this decision. However, it does not explicitly say this anywhere in the Council’s school transport policy.
29. The policy says the Council will measure distances by the nearest available walking route. Someone could take from this that it will measure to the nearest entrance, but it is by no means something that obviously follows, when combined with other information the Council gives. For instance, the Council goes on to say the distances may include calculations using computer generated mapping systems.
30. If, as most people would, someone enters the address of the school into the mapping system, it will measure distance to the public entrance. There is nothing on the Council’s website or policy that highlights this may not be the entrance the Council uses. Therefore, I can understand why, having used the mapping system advertised on the website, Mr B thought he was over the statutory walking distance and why this raised his expectations.
31. The policy says routes are verified by the Council or its agents. However, this does not give any information about how they will verify the routes, or that the normal entrance to appear on the mapping system, being the public entrance, may not be the one it uses. It should be obvious to people using the system that this is the case or people may have their expectations raised unnecessarily, by what is otherwise a helpful tool.
32. There appears to have been some confusion about the system used. Mr B complains the Council used Google Maps, which shows his home is 2.9 miles away, when the My Journey system on its website shows 3 miles. He says it should use My Journey as this is the one advertised on the website.
33. I have not made a finding on this as My Journey uses the Google Maps software. It is not clear why the two websites give different distances. However, this is not relevant as the distance to the nearest entrance is 2.8 miles. The fault is in the information the Council has given.

Consideration of Remedy

34. It is not my place to question the merits of the Council’s decision. I can only investigate whether there was fault in the way the Council made that decision. I have found fault. However, I cannot recommend the Council award transport assistance, as this remains a decision for the Council.
35. I recommend the Council apologise to Mr B for the fault in how it considered his Stage 1 appeal and for not providing sufficient information about the measurement of distances. I also recommend the Council arrange a panel hearing at Stage 2 of its appeal procedure.
36. The reason I recommend a hearing is that Mr B did not have a chance to give representations in person or challenge the Council’s decision on distance. I acknowledge that I have not found fault in the Council’s policy on distance. However, an appeal panel can consider any concerns Mr B raises about the accuracy of the measurements. It can also consider the wider circumstances of the case, including any raised expectations arising from fault in the information the Council gave about distances and Mr B’s personal circumstances.
37. I also recommend the Council update its website and/or policy so it is clear the distance it uses may be different to that shown on its advertised mapping system.

Recommended action

38. I recommend that, within a month of this decision, the Council:
• Apologise to Mr B for the fault in how it considered his Stage 1 appeal and for not providing sufficient information about the measurement of distances
• Arrange for an independent appeal panel hearing in line with Stage 2 of its appeal procedure
39. I recommend that, within three months of this decision, the Council:
• Provide evidence it has updated its website and/or policy so it is clear the distance it uses may be different to that shown on the mapping system advertised on its website

Back to top

Final decision

40. I find the Council is at fault in how it considered Mr B’s appeal. I also find fault in the information the Council provides about how it measures distance.

Back to top

Investigator's decision on behalf of the Ombudsman