Summary: There was no fault by the Council in the way it considered Ms X’s application for free home to school transport. The complaint is not upheld.

The complaint

1. Ms X complains about the Council’s decision not to provide her child with a free bus pass for home to school transport. Ms X says she was wrongly advised when she telephoned the Council before completing the school admission form, and that information she requested about applications under the Freedom of Information Act was withheld.

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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. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). Where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
5. 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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What I have investigated

6. I have investigated the complaint about school transport in relation to Ms X’s personal situation. I have not investigated the information request because this is a matter more suitable for consideration by the Information Commissioner.

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How I considered this complaint

7. I have considered information provided by Ms X and the Council including:
• Transport application and decisions
• Correspondence between the parties
• The Council’s transport policy
8. I have considered the following law and guidance:
1. The Education Act 1996
2. Home to School Travel and Transport statutory guidance.
9. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Chronology of events

10. Ms X’s child was due to transfer from primary to secondary school. Ms X says her son had attended a primary school close to her house but her preference for secondary was a school closer to his father’s house where her son regularly stayed overnight.
11. Ms X says she telephoned the Council to discuss this before completing the school admission form and made clear on the form why she was applying for a place at a school which was not the nearest to her home.
12. The Council’s response to me confirms Ms X telephoned the Council in October 2018 to explain that as she and her child’s father were separated her son would be attending secondary school near the father’s house and staying there some nights. The Council has a note of the enquiry but the record does not show what advice it gave. Ms X later alleged she had not been given correct information about which address to use to be eligible for transport.
13. On 28 February 2019, the Council sent Ms X an offer of a place at her preferred school. The letter explained as the school was not the nearest school with places available she was not eligible for a free bus pass unless she could provide evidence of being in receipt of qualifying benefits. The letter said parents could appeal this decision within twenty working days. For those who thought they were eligible on low income grounds an application form would be available from 1 June 2019.
14. Ms X did not appeal but applied for a free pass in June 2019 although she did not receive qualifying benefits. Ms X also contacted the Council to provide additional information about her reasoning for choosing the school. The Council refused the application as Ms X had not provided evidence of low income. It noted Ms X had not appealed within the twenty days of the offer letter and told her she was now out of time to appeal.
15. On 1 July 2019 Ms X telephoned the Council to complain. The Council told her the offer letter sent in March 2019 had explained she would only be eligible for a bus pass if she provided evidence of low income. Ms X said she had previously been advised she would get a free travel pass due to her child staying at two houses.
16. On 16 July, the Council wrote to Ms X and explained applications for free transport could be made under Group 2 (over 3 miles distance) or Group 3 (low income). The offer letter in February had explained Ms X was not eligible under Group 2 as she had not chosen the nearest school which was within 3 miles of her home. The letter had explained those on low income may be eligible under Group 3. Ms X had applied, but as her application stated she did not receive any of the qualifying benefits, it could not be processed under Ground 3. The Council had already found she was not eligible for Group 2, a decision Ms X had not appealed. The Council invited Ms X to express preferences for nearer schools and it would check if spaces were available.
17. Ms X replied that she had applied on a joint parental decision that her son would attend a school near his father. Ms X says she had sought advice about which address to put on the application form under Group 2 procedures and put down her own address. Ms X explained her older child had got a pass previously to the same school.
18. On 14 August Ms X said she had contacted nearer schools but they were full and so she would like to appeal. Ms X said she had not been informed about the implications of using her address for free transport rather than that of the father. Ms X also made a freedom of information request about other applications from her local area.
19. The Council treated Ms X’s letter as a late stage one appeal. It refused to award a pass as Ms X was not eligible under Group 2 because at the time offers of school places were made there were nearer schools that her son could have attended. The Council explained that her older child had received a pass because at the time she had applied for that child there were no nearer school places available. The Council also explained it could not accept an application from the father’s address as the father lived in a different council area. The Council said it would give a further right of appeal against this decision.
20. Ms X did appeal to stage two explaining when she had sought advice from the Council in October 2018 she had been advised to put her own address but to explain why she wanted a school further from her home. Ms X felt she had been penalised for not using the father’s address and felt as she had genuine reasons for wanting a school further away travel should have been granted.
21. Ms X’s appeal was again refused at stage two because under the Council’s policy free passes were only available for pupils attending a school between 3 and 15 miles away when there was no nearer provision available at the time of transition. The appeal panel decision letter shows all Ms X’s arguments, including that she felt she should have been better advised at the outset, had been considered by the panel, but the panel did not consider there were exceptional reasons to depart from the policy. The letter noted the policy was publicly available on the Council’s website. The panel also noted that the policy was clear only one address could be used and Ms X had applied from the address of the parent to whom child benefit was paid.
22. Ms X told me that although she felt she had been honest in her original application the Council had left it until September to make a decision and she was financially out of pocket due to paying £10 a week for transport. Ms X told me the general information she requested about applications was not forthcoming from the Council.
23. In its response to my enquiries the Council denied any delay in dealing with Ms X’s correspondence or freedom of information request. The Council said it had provided all information by October 2019. The Council repeated that as Ms X had not provided any evidence of low income her application has been assessed based on nearer provision to home, that is Group 2 not Group 3 under the policy. The Council says it cannot assess eligibility from the father’s address as he does not live within the Council’s area and the Council’s policy is that it only considers travel applications from children who live within its own area.

Relevant law

24. The Education Act 1996 requires councils to provide free home to school transport to four categories of ‘eligible’ children (section 508B). Ms X’s child is not in one of these categories.
25. Section 508C of the Education Act provides councils with discretionary powers to go beyond their statutory duties and provide transport to children who are not ‘eligible’ under s.508B.
26. 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 recognises councils will need to balance demands for discretionary travel against their budget priorities.

Analysis

27. I have found no fault by the Council. While the Council did not keep a record of the phone call with Ms X, Ms X’s evidence is that she called to enquire about which address to use for transport as her son was travelling between two addresses. It was not fault for the Council to advise Ms X to use her own address if that was the address of the main carer and the only address within the Council’s area. If Ms X had used the father’s address, this would not had changed the outcome of the application, as the application would have been rejected on the grounds the father did not live within the Council’s area.
28. While Ms X had good reasons for her choice of school, these reasons were not ones which granted an entitlement to school transport under the Council’s policy. Ms X’s child was not an ‘eligible’ child under s.508B Education Act to whom the council owed a statutory duty to provide free transport.
29. The Council did not delay in reaching a decision whether s X’s son was eligible until September, it informed Ms X in February she was not eligible unless she met the low income criteria. Ms X would have been aware she did not meet this criteria.
30. Ms X did not appeal after the decision in February. It was not fault for the Council to reject a late appeal in July as this was outside the timeframe. The Council did reverse this decision and accept a late appeal in August when Ms X raised new concerns about the telephone advice she was originally given.
31. The Council’s policy indicates that it does allow appeals for transport under s.508C where there are ‘exceptional circumstances’. Ms X was in effect applying under s.508C on the basis that the situation of her son travelling between two homes was such a situation which justified a discretionary award.
32. The panel considered whether to exercise its discretion to provide transport outside of the policy (that is under s.508C). It decided Ms X’s case did not justify a discretionary award. This was a decision the panel was entitled to reach. As there is no evidence of fault in the way the panel considered this matter, the Ombudsman cannot question the decision the panel made (Local Government Act 1974, section 34(3), as amended).

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Final decision

33. I have completed my investigation. There was no fault by the Council in the way it considered Ms X’s application for free home to school transport. The complaint is not upheld.

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Investigator's decision on behalf of the Ombudsman