Summary: There was fault by the Council in the way it considered Mrs X’s application and appeal for home to school transport. The Council wrongly adopted a blanket policy that all parents were responsible for delivering children to bus boarding points and did not take into account whether the route to the boarding point was safe or families’ individual circumstances. The fault caused Mrs X and her family injustice over an extended period. The Council also failed to provide Mrs X with an appeal that complied with the statutory guidance. Recommendations for an apology, financial remedy and service improvements are made.

The complaint

1. Mrs X complains that the school transport arrangements the Council has put in place for her son, whom I shall refer to as Y, are not suitable. In particular, Mrs X complains:
• The Council has refused to take into account that the walking route to a bus boarding point is unsafe
• The Council has applied a blanket policy that all parents are responsible for getting their child to and from a boarding point and not considered the individual circumstances of her case
• The Council has failed to consider whether it is reasonable to expect Y’s parents to accompany him to the boarding point given this prevents them from working a full day
• The Council’s appeal process also failed to properly consider these issues.
2. Mrs X complains that as a result of the Council’s fault her husband is having to work much shorter days and lose pay so that Y can be transported by car to and from the boarding point.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. 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

7. I have considered:
• information provided by Mrs X and the Council including the decision letters and an independent investigator’s report
• the Council’s home to school transport policy
• the Education Act 1996
• ‘Home to school travel and transport guidance’ published by the Department for Education (‘the Statutory Guidance’).
8. I have also spoken to Mrs X by telephone.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

Factual background

11. Mrs X’s son is aged 13 years and in year 9. He attends his nearest suitable school which is 4.5 miles away. The Council provides him with free school transport by contract bus from a boarding point 0.88 miles away on the basis he is an ‘eligible’ child as he lives outside the statutory walking distance.
12. Mrs X says this represents a change in policy as the Council provided Y’s older siblings with a bus from outside their home. Mrs X would like the Council to re-route the contract bus by half a mile so it comes down her road and collects Y in the same way it previously collected his siblings.
13. The Council says the siblings are much older and the policy and statutory guidance has changed since that time. The Council’s transport policy says it provides boarding points which are as close to pupils’ homes as possible. The policy says ‘The Authority considers it reasonable for pupils/students to walk up to one mile to and from a designated boarding / drop off point. The suitability of the walking route to a boarding point is not a consideration for free transport as it remains parental responsibility to deliver boarding pupils to the allocated boarding point if the distance is reasonable (approximately 1 mile)’.
14. The policy says about available walking routes to schools ‘a route is considered available to walk, if a pupil accompanied as necessary by an adult, taking into highway conditions, can walk or be walked with reasonable safety to school’. The policy says it is based on the Statutory Guidance and the ‘Assessment of Walked Routes to School guidelines’ produced by Road Safety GB in 2011. The policy says if a parent challenges the availability of a route for walking the Council will investigate applying this guidance and produce an availability report taking into account the nature of the road and crossing points. If the route is found to be ‘unavailable’ for walking the Council will award free transport and any charges for the current term will be reimbursed.
15. Mrs X told me she has no complaint with the general principle of using a boarding point or her son having to walk up to a mile to and from a boarding point. Mrs X’s concern is that the walking route between their house and the boarding point is unsafe due to the nature of the road as there is no speed limit, no footway and no street lighting.
16. The Council’s position is that it does not need to consider the safety of the portion of Y’s journey between the boarding point and his home. It says this is because the responsibility for this portion of the journey falls to parents, not the Council.
17. The Council has an appeals policy for school transport decisions. This provides for a two stage process:
• Stage one to a Senior Officer in the Children Services Directorate
• Stage two to a Corporate Relations Officer.
18. Mrs X used the appeal process. This prompted the Council to carry out a walking assessment of the route between the boarding point and Y’s home in August 2019. The Council described the route as:
• Start from boarding point by public house
• Walk along Road A
• Turn right into Road B
• Finish at Y’s house.
19. The Council found the portion of the route from the boarding point along Road A was suitable and ‘available’ as it had a footway, although the pedestrian needed to cross the road twice.
20. The Council found the whole of Road B between the junction with Road A and Y’s house would not be classed as available if this was a ‘normal walking route assessment’. It was ‘unavailable’ for walking due to ‘no footways and very few step-offs, as well as a narrow railway bridge with very poor forward visibility for both pedestrians and vehicle driver’. As far as I am aware this information was not shared with Mrs X.
21. On appeal the Council found as the total distance to the boarding point was 0.88 miles that under its policy ‘it was clearly parents’ responsibility to get the child/children to the nearest pick up point’ and the nature of the route that would need to be used by pupils and adults accompanying them was irrelevant.
22. The Council therefore advised Mrs X her appeal was unsuccessful at stage one because it was reasonable for Y to walk up to a mile to the boarding point and the suitability of the walking route was not a consideration.
23. At stage two an ‘independent investigating officer’ reached the same finding. The Investigator walked the route with Mrs X and agreed with her concerns about the nature of the route and witnessed cars travelling at 30 to 45 miles per hour. The Investigator said while he understood Mrs X’s concerns the Council had followed its policy that parents were responsible for the journey from home to the boarding point and so he could not uphold the complaint.

Home to school transport

24. Councils have a duty to provide free home to school transport for ‘eligible children’. (Education Act 1996, section 508B)
25. ‘Eligible children’ are children of compulsory school age who:
• Live within statutory walking distance but cannot reasonably be expected to walk to school because of the nature of the route, or because of their special educational needs, disability or a mobility problem; or
• live beyond the ‘statutory walking distance’; or
• receive free school meals, or whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B and Statutory Guidance paragraph 16)
26. The ‘statutory walking distance’ is three miles for a child aged eight and over measured by the shortest route along which a child, accompanied as necessary, may walk safely (Statutory Guidance paragraph 20).
27. Councils must secure ‘suitable home to school travel arrangements, for the purpose of facilitating the child’s attendance at the relevant educational establishment’ and provide these free of charge. (Education Act 1996, s.508B(1))
28. ‘Home to school travel arrangements’ for an eligible child are defined as ‘travel arrangements relating to travel in both directions between the child’s home and the relevant educational establishment in question in relation to that child’. (Education Act 1996, s.508B(3))
29. ‘Travel arrangements’:
• include arrangements made by a parent ‘only if those arrangements are made voluntarily’ (Education Act 1996, s.508B(5)) but,
• ‘do not comprise or include travel arrangements which give rise to additional cost’ (Education Act 1996, s.508B(6))
30. The statutory guidance says in determining whether a child can reasonably be expected to walk for the purposes of ‘unsafe route eligibility’ (when they live within the statutory walking distance) the Council will need to consider a two stage test:
1. whether the child could reasonably be expected to walk if accompanied and, if so
2. whether the child’s parent can reasonably be expected to accompany the child.
31. The guidance continues, “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”
32. The statutory guidance says about ‘suitability of arrangements’ that:
• As a general guide transport arrangements should not require a child to make several changes of public transport resulting in an unreasonably long journey time.
• Consideration should be given to the walking distance required in order to access public transport. The maximum distances will depend ‘on a range of circumstances, including the age of the child, their individual needs and the nature of the routes they are expected to walk to the pick up or set down points and should try to be combined with the transport time when considering the overall duration of a journey’.
• Councils ‘may at their discretion use appropriate pick up points when making travel arrangements. For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study’. (Statutory Guidance paragraph 35)

Analysis

Fault

Unsafe route to boarding point

33. There is no fault in councils having a general expectation parents will accompany children to boarding points provided they consider the factors set out in the statutory guidance. Councils must be willing to consider on a case by case basis if it is ‘reasonable’ for a parent to accompany a child taking into account individual circumstances.
34. The Council’s policy is not in line with the law and statutory guidance. I will explain why by applying the details of Y’s case.
35. Y is an ‘eligible child’ for the purposes of s.508B Education Act 1996 because he attends a qualifying school which is outside the statutory walking distance. The law therefore requires the Council to secure ‘suitable’ and free travel arrangements for Y which do incur any additional costs to his parents.
36. The arrangement of providing contract buses that stop at designated boarding points is lawful. Where the Council has erred is in its assumption that it is only responsible for the portion of the journey from the boarding point to the ‘relevant educational establishment’ and the parent is responsible for the remainder of the journey between the boarding point and home. This is not correct. The law says the travel arrangements for an ‘eligible child’ living outside statutory walking distance extend ‘to travel in both directions between the child’s home and the relevant educational establishment in question in relation to that child’. (Education Act 1996, s.508B(3)). So, the Council is responsible for ensuring that the travel arrangements for the entirety of the journey are ‘suitable’. The Guidance says that for arrangements to be ‘suitable’, they must also be ‘safe and reasonably stress free’. (Statutory Guidance paragraph 35)
37. When the Council received Mrs X’s appeal it assessed the route in the same way as it would when deciding if a child who lived within statutory walking distance was entitled to home to school transport under ‘unsafe route eligibility’. It found that the route between Y’s home and the boarding point was ‘unavailable’. Under the Council’s policy ‘unavailable’ means that if Y’s school had been at the location of the boarding point the Council would have found it was unsafe for him to walk there, even if accompanied by an adult, due to the nature of the route. It would then have provided him with free home to school transport between his home and a school sited at the location of the boarding point.
38. It is illogical for the Council to apply a different approach when it is the boarding point not the school which is accessed by the unsafe route. If the route to the boarding point is unsafe to walk and cannot be made safe even if an adult accompanies Y, then it cannot be a ‘suitable’ travel arrangement.
39. I find it was fault for the Council to decide the portion of the route between Y’s home and the boarding point did not come within its responsibility.

Blanket policy

40. The Council’s handling of this case at first decision and appeal makes clear that it has a blanket policy that all parents are responsible for delivering children to boarding points regardless of their individual circumstances or the safety of the route. This is fault. Councils cannot fetter their discretion in this way and must consider each application on a case by case basis.
41. Even if a Council finds that an unsafe route to a boarding point can be made safe if an adult accompanies the child, then the Council must consider in every case whether it is reasonable for that particular parent to accompany their child. This requires Councils to consider the age of the child, any representations about adverse impact on work or income, or where parents themselves have disabilities and could not reasonably be expected to accompany their children. Councils must provide written reasons explaining their decisions on accompaniment and not rely on blanket policies.

Fault in appeal

42. Government guidance sets out a recommended two-stage appeals process. It says the second stage of the appeals process should be conducted by an independent panel which should consider written and oral representations from the parent. Councils should follow the guidance unless they have very good reasons not to.
43. The Council’s appeal process does not comply with statutory guidance as the second stage is not to a panel but to a single independent investigator. The investigator’s report does not give any information about the person’s experience or role, for example whether they are employed by the Council in a different capacity or are completely independent of the Council.
44. The purpose of an appeal process is for a new decision maker or panel to consider whether they would reach a different decision on the same facts and if so to replace the Council’s original decision for their decision. The Guidance clearly intends for appeal decision makers to consider representations from both sides, including at an oral hearing, and to carry out a balancing exercise between the needs of the parent and the Council.
45. This did not happen in this case, what the Council and independent investigator did was to simply carry out a review of whether the Council’s policy had been followed by the original decision maker. At neither appeal stage did the decision maker consider:
• the law and statutory guidance on school transport, or
• whether they should exercise discretion to depart from the Council’s usual policy due to the individual circumstances of this particular family, or
• whether the Council’s policy was itself flawed and incompatible with the law.

This was fault.

46. The Council has not provided Mrs X with an appeal as intended by the guidance. This is fault.

Injustice

47. Y was entitled to home to school transport because he lived more than three miles from his home. He lives on a road the Council deems unsuitable for walking by adults or children. He has received transport only from a point 0.88 miles away from his home which requires him to use the unsafe route. This has caused Y stress and inconvenience.
48. The main impact has however been on Mr and Mrs X who have to drive Y to and from the boarding point each day. Mrs X told me that sometimes she is able to drop Y at the boarding point on her way to work, but sometimes her husband has to leave for work late to drive Y to the boarding point. At the end of the day Mr X (who is self employed) has to finish work around 2 to 2.30pm to get back in time to meet Y from the bus and drive him home. Mrs X says occasionally when this is not possible a friend will allow Y to wait at their house until Mr or Mrs X can collect him, but Mrs X says she does not wish to impose on her friend too often.
49. Mrs X says that Mr X has lost work hours most days since Y changed schools.
50. Mr and Mrs X have also incurred additional mileage costs taking Y to the boarding point.
51. Mrs X has incurred time and trouble appealing the matter through two stages and bringing the complaint to the Ombudsman.

Agreed action

52. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
53. To remedy the injustice to Mrs X and her family the Council will:
• Before the start of term in September re-route Y’s school bus to a safe pick up point or provide him with alternative free home to school transport to school or the boarding point.
• Within four weeks of my final decision pay Mr and Mrs X £15 per day to acknowledge the financial impact on Mr X’s work and the mileage expenses incurred due to this particular route being unsafe even for an accompanying adult. This will be calculated from the date transport should have been provided until the date new arrangements are in place.
• Pay Y £100 to acknowledge the inconvenience to him of not having suitable stress-free travel arrangements.
• Pay Mrs X £100 to acknowledge her time and trouble pursuing the appeal and complaint.
54. I am concerned that the Council is operating a flawed blanket policy about parental accompaniment to boarding points that fails to consider the safety of routes or individual circumstances. In its response to my draft decision, the Council has accepted its policy requires review and that if the route is unsafe then this must be taken into account when an application is being considered.  It also acknowledged that its policy must allow for reasonable adjustments for specific cases to meet disability equality requirements and allow decision makers to take into account, on a case by case basis, whether it is reasonable for a parent to accompany a child who cannot walk to the boarding point alone.
55. The Council says it will alter its online application form to allow for the recording of more specific details around accessing boarding points and other relevant information to improve its decision making.
56. The Council has agreed to immediately clarify its transport policy as necessary and follow this up by revised guidance for officers involved in implementing the policy.
57. The Council will write to parents of eligible children using boarding points who may be similarly affected by the Council’s failure to consider if parental accompaniment to / from a boarding point is reasonable in their particular case. This could include cases where the route is unsafe, where accompaniment is unsafe due to disability or where accompaniment causes significant or exceptional individual hardship. The Council will review any information received and if it identifies fault and injustice in other cases will try to agree a financial remedy with the family directly, but also advise them of their right of appeal and to complain if they remain dissatisfied.
58. The Council will within three months of my final decision provide a report to the Ombudsman setting out details of cases where families have contacted the Council for a review and a summary of how the Council has remedied any fault found.

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Final decision

59. I have completed my investigation. There was fault by the Council in the way it considered Mrs X’s application and appeal for home to school transport. The Council wrongly adopted a blanket policy that failed to take into account the safety of routes to boarding points or other individual circumstances accessing boarding points. This caused Mrs X and her family injustice over an extended period. The Council also failed to provide Mrs X with an appeal that complied with the statutory guidance. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman