Summary: Mr X complained the Council failed to properly consider his appeal for home to school transport for his secondary school aged child. There was fault in the process followed but this did not cause an injustice. The Council should review its communication with appellants to prevent a recurrence of the fault.

The complaint

1. Mr X complained the Council failed to properly consider his appeal for home to school transport for his secondary school aged child. This has caused them inconvenience and expense.

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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’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 the information Mr X provided in writing and over the phone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
5. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered their comments before I reached a final decision.

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What I found

6. Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
7. The relevant ‘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’.
8. The Department for Education’s statutory guidance Home to School Travel and Transport Guidance 2014 says ‘At the point when transport eligibility is considered, the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one. For most cases this will be during the normal school admissions round when places are allocated’.
9. For secondary school aged children, school transport will be provided for those living outside the statutory walking distance of three miles.
10. The Guidance recommends an appeal process consisting of two stages ‘to ensure a consistent approach across all authorities, and to provide a completely impartial second stage, for those cases not resolved at the first stage’. Stage one consists of a review by a senior officer with a review by an independent appeal panel at stage two.

The Council’s policy

11. The Council’s school transport policy includes an appeal process. This states ‘your eligibility will initially be reconsidered by an officer of the Council who was not involved in the original decision not to award transport for your child. The officer will review the original decision and any personal and/or family circumstances you believe should be considered. If transport is not awarded your appeal and evidence will then be considered by the Student Support Appeal Committee whose decision is final’.

What happened

12. Mr X applied, during the normal admission round, for a secondary school place for his child. Mr X’s first preference, the nearest suitable school, was oversubscribed. So Mr X’s child was allocated a place at their second preference, which is over three miles away. Mr X applied for school transport. The Council refused this on the basis there were nearer suitable schools with places available.
13. Mr X submitted an appeal. Mr X did not appeal for medical or financial reasons but on extenuating circumstances. Mr X stated he did try to mitigate the costs by applying to the nearest secondary school as their first choice of school but was refused a place. Mr X provided maps showing the distance to the two other schools was the same as to his second preference school, School B, so the same level of support would have been required had they selected those schools.
14. A Council officer considered the appeal and prepared an appeal schedule for the committee setting out Mr X’s views and their comments and views. In the schedule it stated, under reasons for initial refusal, that the pupil was ‘not attending their nearest suitable school, [School A] which is 3.376 miles from home and instead attends [School B] which is 3.724 miles away and is also located within the statutory walking distance’.
15. The Council officer noted two other suitable schools were nearer and had places available when Mr X was seeking a place for his child. The officer set out how the Council measured the distances using specialist software based on the nearest available walking route.
16. The Council sent Mr X a copy of the schedule and asked that he acknowledge if he found it a satisfactory summary of the facts of the case. It stated ‘if you do not agree with any of the information contained in the schedule, please state your objections in the email, the case will be re-considered and we will contact you again’. Mr X responded. He stated ‘there is one pertinent point from the original appeals form that I would prefer is included in the summary…. ‘In any event [the two closer schools] are over 3 miles walking distance mentioned in the policy and would have required transport support’. An officer acknowledged the email and said ‘I will ensure your email is seen by the panel’. The Council has confirmed a copy of this email was included in the pack for the committee.
17. The minutes of the appeal recorded Mr X was refused home to school transport because his child was not attending the nearest suitable school with places available which was 3.37 miles from the home address but was attending the school of parental preference 3.72 miles away. The notes records ‘Free transport can only be authorised if the pupil is attending the closest school to the home address and the distance to get to the school attended by the pupil exceeded the statutory walking distance’.
18. The Council wrote to Mr X in September 2019 refusing his appeal. It decided the reasons put forward did not merit the committee exercising its discretion to make an exception and award transport assistance. Mr X’s child was attending a school over three miles away but there was a nearer suitable school with places available at the time he was seeking a place for his child.

Findings

19. The primary reason for the Council’s refusal to provide transport is because
    Mr X’s chosen school, School B, is not the nearest to the family home based on walking distance. There are other schools nearer than the one Mr X’s child attends.
20. Mr X had applied for the nearest school but was refused a place as it was oversubscribed. However, the Council has provided evidence which shows there were two other schools which Mr X had not included on his application, which had places available and which were nearer to his home address than the one his child attends. These schools are both over the statutory walking distance. So, if Mr X had applied for a place at either of these schools, his child would have got a place and would have received free home to school transport.
21. The Council applied the law and policy correctly in refusing Mr X’s child free school transport because there were closer suitable schools with places available. The Council was not at fault.
22. Mr X emailed the Council, after he had received the appeal schedule and asked that it include in the summary that the two closer schools were both over the statutory walking distance. Mr X says the Council failed to consider this. The Council has confirmed a copy of the email was included in the pack given to the committee before the hearing. This information was therefore seen by the committee.
23. The Council considered Mr X’s appeal in line with its policy and decided the reasons put forward did not merit the committee exercising its discretion. There is no evidence of fault in the way the committee considered the appeal.
24. A senior officer considered Mr X’s case and provided their comments to the committee in the appeal schedule. Mr X had the opportunity to comment on this before he signed and returned the appeal schedule. He was therefore aware of the Council’s views and able to provide any additional evidence before the appeal. The Guidance recommends a clear two stage process. The Council did not make it clear this was stage one of the two stage process. The letter to Mr X, advising him of the date of the appeal committee hearing and attaching the appeal schedule, did not explain that his case was considered by a senior officer at stage one and refused. It did not set out that because of this it was being passed to the committee. This is fault. However, Mr X’s arguments were properly considered by the appeal committee and so this lack of clarity about stage one and stage two did not cause Mr X an injustice.
25. Mr X has highlighted an error in the appeal schedule submitted to the committee where it referred to School A and School B being within statutory walking distance. This was fault. Both these schools are over 3 miles away and so are outside the statutory walking distance. However, there is no evidence this error affected the appeal or caused an injustice. The notes of the appeal show the committee was aware of the actual distances between the various schools and
    Mr X’s home address and these are stated in the decision letter. It refused Mr X’s appeal on the basis there were nearer suitable schools with places available, not because the allocated school or nearer school were within statutory walking distance.

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Agreed action

26. The Council has agreed, within two months of the final decision on this complaint, to review its communication to appellants regarding school transport appeals. It should ensure it makes it clear to appellants when the appeal has been considered and refused by a senior officer at stage one, before it is passed to the committee at stage two, in line with the Guidance and Council policy.

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Final decision

27. I have completed my investigation. There was fault but this did not cause Mr X an injustice. The Council has agreed to take action to prevent a recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman