Summary: Mrs X complains about the Council’s decision to charge her for school transport for her son. There was some fault by the Council in how it administered free home to school transport. However, this did not cause Mrs X an injustice which would require the Council to take any action.

The complaint

1. Mrs X complains the Council has charged her for school transport for her son while some other children in his year group from the same village do not have to pay. She says the Council has not applied its policy fairly.

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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. 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)
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 the complaint made by Mrs X.
6. I considered the Council’s comments about the complaint and the documents it provided.
7. I have taken account of the Ombudsman’s focus report ‘All on board? Navigating school transport issues’ published in March 2017.
8. I have given Mrs X and the Council an opportunity to comment on my draft decision and I considered their responses.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Legislation and guidance

10. The Education Act 1996 places a duty on councils to make suitable travel arrangements for eligible children to attend a qualifying school. This transport must be provided free of charge.
11. ‘Eligible children’ as defined in the Act includes children living outside statutory walking distance from the school (two miles for children under eight; three miles for children between eight and 16)
12. A ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have’.
13. The statutory guidance, ‘Home to School Travel and Transport’ says at the point eligibility for transport is considered, there must be a real prospect of securing a place in an alternative (usually nearer) school. For most cases this is during the normal admissions round when school places are allocated.
14. Councils have discretionary powers to provide transport to children who are not entitled to free transport, and they can charge for this. The Council runs a ‘spare seat’ scheme which enables children who do not receive free transport to pay to use available seats on the transport provided to eligible children.
15. The Council runs a two-stage appeal procedure when parents disagree with a decision about school transport. The first stage is a review by a manager. The second stage is a review by an independent appeal panel.

What happened

16. Mrs X lives in a village. She applied for a place for her son, D, at School A in the normal admissions round. There are other schools nearer to her home, with School B being the nearest.
17. In March 2018, the Council offered D a place at School A and told Mrs X he would receive free school transport.
18. In May, the Council identified there had been an error when calculating eligibility for free home to school transport for children from the village. It wrote to the affected families in June to advise they would no longer be eligible for free school transport.
19. Mrs X appealed the against the decision. The Council’s response said School A was not D’s nearest school at the time it decided his application for a school place, so he was not entitled to free school transport. It said an administrative error had led to the offer being made in the first place.
20. Mrs X asked for the independent appeal panel to review the decision. Meanwhile, in recognition of the impact of the administrative error, the Council offered to provide free school transport to those affected for one academic year. It told Mrs X she would need to pay for D to travel on school transport under the ‘spare seat’ scheme from the beginning of Year 8.
21. Due to the number of families who were unhappy with the removal of free transport, the Council decided to hold a group appeal hearing. Mrs X sent written information in support of her appeal. She said the Council had given families incorrect information and some children were still receiving free transport. Mrs X attended the panel to make representations.
22. The Council’s representative told the panel there was no legal basis to provide free transport unless a child was attending their nearest available school. School B is always the nearest school for children living in the village. The question was whether a place would have been available at School B at the point the Council decided eligibility for transport. In the normal admissions round, this is 1 March.
23. The Council representative said the last child admitted to School B based on distance lived 5.878 miles from the school. Therefore, a child who lived nearer than 5.878 miles from the school would not be eligible for free transport to another school. D lived 5.526 miles from School B.
24. The appeal was refused. The Ombudsman has previously investigated the conduct of the appeal and found no fault in the way the decision was made.
25. Mrs X paid for a seat for D on the school transport from the beginning of Year 8. She says she became aware a family which had originally named School B as their first choice but had turned it down to take a place at School A was receiving free transport to school. She said a further four families who should have had to pay for transport from the beginning of Year 8 were incorrectly given free transport.
26. In response to my enquiries, the Council said an error entering expiry dates had recently come to its attention. This meant four families continued to receive free transport to school from September 2019, after the Council’s offer of a year’s free transport had expired. The Council has corrected the error and issued invoices to these families for the ‘spare seat’ scheme. The Council also provided me with information about the children in the same year group as Y who currently receive free school transport to School A.

Analysis

27. The Council accepts there was fault in how it decided to offer free transport in March 2018. There is nothing in the law or guidance which prevents councils from withdrawing offers made in error. Once it identified the error, it agreed to provide free school transport for one academic year. Even if there was fault in the process of withdrawing the offer of transport, the Ombudsman would not propose any further remedy to that offered by the Council.
28. While I cannot share the details with Mrs X about the remaining families who are eligible for free transport, I am satisfied the Council has applied its policy correctly in these cases. The information shows the children either live further away from School B than the last admitted pupil, or they applied for a school place outside the normal admission round.
29. The Council made an administrative error when it failed to correctly enter expiry dates for the discretionary free transport for four of the affected families. This was fault. It has now corrected the error. This error did not cause an injustice to Mrs X.
30. I sympathise with Mrs X’s frustrations about the Council withdrawing its original offer of free transport. But there is no evidence of fault in its decision to now charge her for D’s transport to school.

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Final decision

31. I have completed my investigation. There was some fault by the Council in how it administered free home to school transport. However, this did not cause Mrs X an injustice which would require the Council to take any action.

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Investigator's decision on behalf of the Ombudsman