Summary: There is no evidence of fault in the way the Council’s transport appeal panel decided an application for discretionary transport support.

The complaint

1. Ms X complains about the Council and an appeal panel’s decision not to award free home to school transport to her daughter.

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The Ombudsman’s role and powers

2. 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 or appeal panel’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)
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)

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How I considered this complaint

4. I have considered information provided by Ms X and the Council including the transport application, decision letters, complaint documents, appeal panel minutes and the Council’s policy.
5. I have considered relevant law and guidance:
• Education Act 1996
• Home to School Travel and Transport statutory guidance.
6. I have also spoken to Ms X by telephone.

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What I found

Chronology of events

7. Ms X lives in a rural area and there is no safe walking route to any school.
8. Ms X decided to send her children to a faith school which was not their nearest school. At the time she made this decision she was able to transport her children by car and did not require transport support. Ms X told the appeal panel that she did not consider the Council’s transport policy because she expected to transport the children herself.
9. Ms X then developed serious medical and mobility problems which interfered with her ability to drive the children to and from school.
10. Ms X has retired on ill-health grounds and now receives a pension alongside child and disability benefits. Mr X remains in full-time work. Ms X’s ill-health has meant a significant reduction in household income while their outgoings remain high. Their income is however above the level which would entitle them to free school meals.
11. Ms X told me that whichever school her children attended they would be entitled to free home to school transport as there is no school within safe walking distance.
12. Ms X told me she is unable to source a taxi company able to transport her daughter on days when she is too unwell to do so as they have no availability before 10am, due to fulfilling council school transport contracts.
13. Ms X told me she first applied for transport support for September 2018, but did not appeal at that time. She reapplied for support from September 2019 for both her children (when her daughter was to start year 6 and her son was to start year 7). This complaint relates to the daughter’s appeal only.
14. The Council refused support on the basis that Ms X’s daughter did not attend her nearest suitable school on parental preference grounds. The Council’s policy is that it will only provide home to school transport to the nearest school. The nearest school had places at the time of Ms X’s transport application and so the Council said Ms X’s daughter should move schools. Ms X did not want to do this because her daughter had only one year left at primary school and they preferred the school she was presently attending.
15. Ms X appealed. A panel of senior council officers considered the appeal at stage one but did not feel the case was compelling enough to award discretionary support. The Council said Ms X could use her mobility benefits to purchase a solution on those days she was too unwell to drive. The Council said that the mobility benefits were provided for the purpose of extra transport costs incurred by Ms X due to her disability, and meant that she had the same opportunity to meet her family’s transport needs as someone without a disability.
16. The documents I have seen show Ms X detailed her household income (although not expenditure) and this, including her mobility benefits, amounted to over £4000 per month.
17. Ms X appealed to a panel of Councillors at stage two of the Council’s appeal process. The Council’s case for the appeal said there were places available at schools 1.1 miles and 2.73 miles away. Ms X’s preferred school was 3.34 miles away. The Council said Ms X chose her daughter’s school knowing that there were nearer schools.
18. Ms X says the questioning by the appeal panel was very aggressive and intrusive, with questions about their finances, holiday plans and her medical condition. Ms X says the panel asked to speak to the Council’s representative alone after the hearing, but the Clerk prevented this. Ms X says the panel decided she should use her disability benefits for her daughter’s transport needs.
19. Ms X says she is aware of other families who have been awarded discretionary transport although their financial situation was more favourable.
20. The Clerk’s notes indicate Ms X told the panel her disability benefits funded care and were not available for her daughter’s transport needs and that a taxi would cost £30 per day. The notes show both parties left the room at the same time while the panel reviewed the evidence. The Clerk noted the panel decided to award fifty percent of travel costs to support Ms X’s daughter remaining at her current school for her last year.
21. The Council has confirmed the Clerk ensured both parties left the room together and that the Clerk is satisfied proceedings were conducted correctly with questioning restricted to ascertaining the facts required and that questioning was not inappropriate. The Council says after the formal part of the hearing was complete there was a discussion about Ms X’s holiday plans but this was a social interaction and did not form part of the decision making.

Law and statutory guidance

22. Sections 508B and 508C of the Education Act 1996 require local authorities to ensure that suitable transport arrangements are made, where necessary, to facilitate a child’s attendance at school.
23. Parents are responsible for ensuring their children attend school regularly but will have a defence to prosecution for non-attendance if the Council has a duty to provide transport under s.508B and has failed to discharge this duty (s.444(3B) Education Act 1996).
24. The categories of children who are ‘eligible’ under s.508B are:
• Those who live outside the statutory walking distance to their nearest suitable school which has places available
• Those who have additional needs or a disability that prevents them from being able to walk to school
• Those where there is no safe walking route to the nearest suitable school.
25. There are also additional entitlements for children entitled to free school meals or whose parents receive working tax credit.
26. Section 508C of the Act provides Councils with discretionary powers to go beyond their statutory duties and provide transport or provide full or part funding of travel expenses to children who are not entitled to free transport.
27. The statutory guidance says ‘it is very much for the individual local authority to decide whether and how to apply this discretion as they are best placed to determine local needs and circumstances’. The guidance acknowledges Councils will have to balance requests for support against their budget priorities.
28. The guidance recommends a two stage appeal process:
• A review by a senior officer
• A review by an independent appeal panel.

Council’s policy

29. The Council’s policy sets out the Council’s statutory obligations and does not indicate when the Council may consider providing discretionary support.

Analysis

30. Ms X complains about the decision reached by the transport appeal panel to award only half the costs of transporting her daughter under s.508C Education Act.
31. Section 34(3) of the Local Government Act 1974 says that the Ombudsman does not have jurisdiction to question the merits of decisions taken without maladministration. This means that if there is no fault in the process, then we cannot question the judgment a panel reaches about the evidence it hears, even if we may have reached a different decision on the same facts.
32. There is no supporting evidence that proves irregularity in the conduct of the appeal proceedings or inappropriate questioning. The Clerk’s notes indicate the hearing went over the same information Ms X had provided in her written appeal and that parties left the room together. The notes and panel decision do not confirm a view by the panel that Ms X should use her disability benefits for transport. The panel has not specified how Ms X should fund transport. The only reference to disability benefits in the notes is when Ms X explains that they are used for her care. I acknowledge that the panel may have asked questions which have not been summarised in the Clerk’s notes, but I can only reach a decision on the evidence available.
33. The panel had available to it all the relevant information. It had details of Ms X’s total household income, information about her disability and information about the transport costs and difficulties sourcing taxis. Ms X was able to give her views orally. The panel decided to overturn the Council’s decision to make a nil contribution and awarded a fifty percent contribution, this indicates the panel did listen to Ms X’s case.
34. Under s.508C it was within the panel’s discretion to award all, none, or part of the costs. The panel was satisfied that this level of contribution would support Ms X’s daughter remaining at her placement until the end of year six. As there is no evidence of fault in the process of the appeal, I cannot, by law, intervene in the judgment the panel reached. (Local Government Act 1974, section 34(3), as amended)

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Final decision

35. I have completed my investigation. There is no evidence of fault in the way the Council’s transport appeal panel decided Ms X’s application for discretionary transport.

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Investigator's decision on behalf of the Ombudsman