Staffordshire County Council (19 014 232)

Category : Education > School transport

Decision : Upheld

Decision date : 23 Nov 2020

The Ombudsman's final decision:

Summary: Mrs X complains on behalf of Ms M about the Council’s decision to remove all public bus services that run at school times, from Village 1 to Village 2. She said that the walking route to the School is unsafe and the Council has failed to address concerns about the dangers and risk to children when considering her appeal. The Ombudsman finds fault in the Council’s appeal process and recommends a remedy for the injustice.

The complaint

  1. Mrs X complains about the Council’s decision to remove all public bus services that run at school times, from Village 1 to Village 2. Mrs X says that the walking route to the School is unsafe and the Council has failed to address concerns about the dangers and risk to children.
  2. Mrs X also complains on behalf of Ms M, that she received a generic response that was sent to all parents and did not address her concerns about the safety of the walking route.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  4. 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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How I considered this complaint

  1. I discussed the complaint with Ms M and Mrs X and considered the information they provided. I made enquiries of the Council and considered its comments and the documents it provided. I have referred to law and guidance in my statement.
  2. I provided Ms M, Mrs X, and the Council with a copy of my draft decision and invited their comments. I considered all the comments I received before reaching a final decision.

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What I found

The Law, government guidance and council policy

  1. The Education Act 1996 requires local authorities to provide free home to school transport for ‘eligible children’ to attend their ‘qualifying school’. This 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 (SEN) the child may have.
  2. ‘Eligible children’ are defined as:
  • children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16);
  • children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
  • children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk;
  • children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if the school is between two and six miles (if aged 11-16 and there are not three or more suitable nearer schools) or the school is between two and 15 miles and is the nearest school preferred on the grounds of religion or belief (aged 11-16);
  1. The Department for Education has published statutory guidance on this topic (“the Guidance”). The Guidance says that, for a council’s school transport arrangements to be suitable, they must be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. However, the Education Act and the courts have been clear the responsibility for getting a child to school ultimately rests with the parents.
  2. Where a parent wishes to challenge a decision on school transport, the Guidance recommends councils should provide a right of review by a senior officer and then an appeal to an independent appeal panel. Both the review and the appeal decision should set out:
  • the nature of the decision reached;
  • how the review was conducted;
  • what factors were considered;
  • information about other departments and/or agencies consulted as part of the process and
  • the rationale for the decision.
  1. The Guidance says councils should provide transport to the nearest qualifying school. Home to school travel and transport guidance: Statutory guidance for local authorities, Department for Education July 2014 (the Guidance) does not say how councils should measure distance to determine which is the nearest qualifying school.
  2. The Council’s transport policy says it will:
  • provide free travel assistance to the catchment area school (if it is not already the nearest school) for pupils over three miles.
  • offer for sale any spare or “vacant” seats on school buses for pupils not eligible for free travel.

Assessing routes to school

  1. The Government Home to school travel and transport guidance 2014 explains how councils should assess the safety of walking routes. The Guidance says that council should use both modern IT tools (route planners) as well as local knowledge to assess walking routes.
  2. The Guidance says: “The measurement of the statutory walking distances is not necessarily the shortest distance by road. It is measured by the shortest route along which a child, accompanied as necessary, may walk safely. As such, the route measured may include footpaths, bridleways, and other pathways, as well as recognised roads.”
  3. The Statutory Guidance does not specify a method that councils must use to assess route safety.
  4. The Council’s Policy says:

When considering a walking route, it is assumed that the child will be accompanied as the parent feels necessary. Where parent(s) are working at the time their will travel to and from school, it is a parent’s responsibility to make other arrangements for someone to accompany their child as they feel necessary”

Appealing school transport decisions

  1. Statutory Guidance recommends a two-stage appeal process for parents to challenge a decision about:
    • the transport arrangements offered;
    • their child’s eligibility;
    • the distance measurement in relation to statutory walking distances, and
    • the safety of the route.
  1. The first stage is review by a senior officer. The second stage is by an independent appeal panel. Appeal panel members should be independent of the original decision-making process but are not required to be independent of the council. It says its purpose is to “provide a completely impartial second stage, for those cases that are not resolved at the first stage”.
  2. Statutory Guidance says at stage one, representations should be made in writing. At stage two, the independent appeal panel should consider written and verbal representations from both the parent and officers.
  3. At both stages, the Council should send the parent a detailed written explanation of the outcome.
  4. The Council’s Appeal procedure as of May 2018 followed a two-stage process. At stage 1, a senior officer considers the appeal and issues a decision within 20 working days. At stage 2, the appeal is considered by the County Commissioner for Access for Learning followed by a recommendation to the Director for Families and Communities for a final decision. Parents are invited to write to the Council with additional supporting information A decision is made within 40 working days.
  5. At stage 1 and stage 2 the Council will communicate its decision in writing. The decision letter will include:
  • how the review was conducted;
  • information about other departments and/or agencies that were consulted as part of the process
  • what factors were considered
  • the rationale for the decision reached and
  • next steps

Background – what happened

  1. Company 1 held a contract with the Council to operate a local bus service between Village 1 and Village 2. The bus service provided for the whole community, albeit one return journey each day between Village 1 and Village 2 (School A). The contract was let on a “net-cost basis” which meant that Company 1 accrued all “on bus revenues” and therefore determined the pricing of all fares. The terms and condition of the contract allowed for either party to terminate the contract with 13 weeks’ notice. On 12 April 2018 Company 1 notified the Council of its decision to terminate the contract with effect from 13 August 2018.
  2. The local bus service was a service provided in accordance with the Council’s duty under section 63 of the Transport Act 1985. In April 2018 the Council carried out a tender process to procure a replacement bus service. On 12 July 2018 awarded the contract to Company 2.
  3. In June 2018 the Council carried out a separate tender exercise for the provision of home to school transport requirements from Village 3 and Village 1 to Village 2 to School A. This was in accordance with the Council’s statutory duty under the Education Act 1996. On 30 July 2018 the Council awarded contracts for two routes to School A.
  • Company 3: Village 3 to School A via Village 1. This bus had capacity for 70 seats with 32 allocated to pupils entitled under the Council’s statutory duty. Leaving 38 seats available for pupils applying for a vacant seat;
  • Company 4: Village 1 to School A. This bus had capacity for 70 seats of with 46 allocated to pupils entitled under the Council’s statutory duty. Leaving 24 seats available for pupils applying for a vacant seat.
  1. The Council said that both buses had capacity for 70 seats each sufficient, it says, to meet its duty to provide free transport to pupils who met that statutory criteria. Under the Council’s Home to School Transport policy parents have the option to purchase a vacant seat at a flat rate of £624 for the school year. As an exception to the policy the Council offered parents the opportunity to purchase a vacant seat at reduced price of £494 per pupil for the academic year 2018/19.
  2. The Council produced a document responding to frequently asked questions. This document was sent to all parents and made available on the Council’s website.

Walking route

  1. The Council received a number of complaints about the safety of the route and considered these at stage one of the appeal process. It carried out an assessment of the walking route on Wednesday 12 September 2018 at 7:54am. The assessment was carried out by a Senior Transport Co-Ordinator and reviewed by a senior officer.
  2. On 1 October 2018, the Council wrote to parents with the outcome of the assessment. The Council said that it conducted the assessment on a day and at a time that a pupil would walk the route to school. The Council said it had considered the concerns raised by parents about the safety of the route. The Council concluded that the route was available for a student to walk, accompanied as necessary and clarified that students who lived under a three-mile distance were not entitled to receive free transport. The Council reminded parents that they could purchase a vacant seat on either of the two bus services at a discounted price of £494, for the remainder of the 2018/19 school year.
  3. On 16 October 2018 the Council received an appeal against the stage 1 decision. The Council considered the appeal at stage 2 of its process and completed another assessment of the walking route on Monday 26 November 2018 from 7:50am to 8:50am. Following the assessment, the County Commissioner for Access to Learning produced a report which concluded that the route was available for a student to walk, accompanied as necessary.
  4. The report explained that the assessment was undertaken on the basis that individual road users and pedestrians will act with due care and attention. The Council said that, it could not agree to give free home-to-school transport on the basis that drivers may not comply with relevant road regulations and it expected drivers would take care when approaching pedestrians on the footpath and when crossing roads. In commenting on my draft decision Mrs X says the Council also failed to consider the field of vision when assessing the route.
  5. The report detailed the route undertaken and attention was given to the roads where parents had raised particular concerns. The assessment considered the flow of traffic on busy roads and the ability to cross them safely. It concluded that “the road could be crossed safely in both directions without the availability of a controlled pedestrian crossing”. The report identified that stretches of pavement were uneven and in disrepair. The Officer walked in a single file when required for example if the path was narrow. At Lane 1s, the Officer recorded that, whilst there was a short wait, he re-crossed the road seven times in total and "each time there was sufficient visibility and gaps in traffic to cross safely”.
  6. The report responded to concerns received from parents about the assessment undertaken at stage 1 on 12 September 2018. Parents raised concerns about the qualifications of the assessing officer(s). The Council said that the route was assessed by experienced trained officers from its Transport Team with suitable qualifications to undertake the assessment of the walking route.
  7. The report also referred to video and photographic evidence received from parents which raised concerns that drivers had mounted the kerb/pavement of the walking route. At stage 1, Officer’s said that they did not see any large vehicles, HGV or tractors mount the footpath. At stage 2 the Officer noted tyre tracks on sections of the footpath of the walking route. The Council concluded that it was “reasonable to expect drivers would take due care and attention and not to mount the pavement where pedestrians are present”. The report also contained a response to concerns raised about flooding and moral danger to children walking the route, unaccompanied. In commenting on my draft decision Mrs X says in her view the report’s author did not consider the video footage of vehicles mounting the pavement when the field of vision is restricted.
  8. The Council said it had considered the report provided by the Parish Council. It acknowledged that the report raised concerns about the width and condition of footpaths. The Council said that the footpaths were constructed several years ago and in accordance with the standards at the time. It acknowledged that the footpaths may not meet with current standards but said this would not automatically determine that they were unavailable.
  9. On 20 December 2018, the Council wrote to parents with its decision and enclosed a copy of the stage 2 report. The Council said it had considered the information received from parents, residents and an independent assessment of the walking route carried out by the Parish Council. Mrs X says the Parish Council commissioned this independent assessment. The Parish Council did not conduct it because, Mrs X says, the Parish Council wanted to ensure it gained an assessment completely independent of both parties. The Council said it lawfully applied the relevant processes and policy. The Council says the walking route was available for a pupil to walk safely, accompanied as necessary and there were no exceptional reasons why an exception should be made to the policy. Therefore, pupils that lived below the statutory three-mile limit were not entitled to free travel assistance.
  10. In commenting on my draft decision Mrs X says, in her view, the Council failed to consider in line with the law and government guidance the narrow width of the footpath, the wellbeing of children walking close to a busy route; and the air quality close to a busy road. Mrs X says the Council has not set out a vision, objectives or plans to improve accessibility to the school.

Appeal Process

  1. The stage 1 decision letter sent to parents included a copy of the walking route assessment. Parents were advised that they could request a review of the decision and were invited to submit their appeal in writing with additional supporting information.
  2. At stage 2, a further assessment of the walking route was completed, and the findings were compiled into a report. The stage 2 decision letter and accompanying report were sent to parents and explained how the Council considered the representations it received. This included, emails, letters, accident data, photographs, video footage and the report provided the Parish Council. The report and stage 2 decision letter were approved by the Deputy Chief Executive and Director for Families and Communities.

Analysis

  1. It is not the role of the Ombudsman to replace the professional judgment of a suitably trained council officer with my own. Instead, my investigation has considered the process followed by the Council.
  2. Government Guidance sets out a recommended two stage appeal process. It says the second stage of the appeals process should be a review by an independent panel which should consider written and oral representations from the parent. Councils should follow the guidance unless they have very good reason not to. The purpose of an independent panel is to review the decision made at stage one and ensure that road safety requirements are complied with and no child is placed unnecessarily at risk.
  3. The Council’s policy at the time did not comply with the statutory guidance. The stage two review was considered by the County Commissioner for Access for Learning and a final decision was made by the Director for Families and Communities. There was no independent panel. This was fault. Furthermore, Mrs X was wrongly denied the opportunity to make verbal representation. This was further fault. Therefore, I consider there are grounds to question the robustness of the decision made by the Council at Stage 2 of the process.
  4. In response to the Ombudsman the Council acknowledges that there was no independent panel at stage two and that parents were not invited to make verbal representation.
  5. I note that following a recommendation by the Ombudsman on a previous case the Council changed its policy in September 2019. An independent panel considers the appeal at stage 2 and parents are invited to make verbal representation.

Tender Process

  1. Parents expressed concern that the Council had breached the Competition Act 1998, by removing public transport at morning and afternoon school times and forcing parents to pay £624 for transport.
  2. The Council has provided a copy of the procurement documents for the replacement local bus service, which I have considered. The Transport Act 1985 allows County Councils to tender for local bus services that have not been provided commercially. The bus service operating between Village 1 and Village 2 or Village 1 and Village 2 was not commercially provided. The bus service that operated between these routes was, and is, a local bus service. This meant that the Council could specify the service required, including the timetable. The Council is not at fault here and I found no breach of the Competition Act 1988.
  3. Parents could also purchase a vacant for £624 for the school year, discounted by the Council to £494 for 2018/19.

Analysis

  1. I find that the Council considered the potential impact on pupils and parents and took appropriate and reasonable action by contracting extra capacity on both routes. This is good practice.
  2. I understand that parents were concerned about the cost of a vacant seat in comparison to the fare that they were paying with Company 1, which equated to approximately £234 per academic year. This price was determined by Company 1 and not the Council. The Council’s Home to School Transport Policy May 2018 stated that a standard charge of £624 would be made “irrespective of the distance travelled or number of journeys required”. The policy advised parents that “it may be cheaper for you to make your own travel arrangements – please check before applying”.

Having reviewed the Council’s Home to school Transport Policy May 2018, I cannot say it has failed to follow this. The Council’s vacant seat policy is in addition to the statutory requirements and therefore I cannot say the Council failed to properly implement the Guidance. Furthermore, the Council applied discretion and reduced the cost of a vacant seat from £624 to £494 for 2018-2019. This is good practice.

Ms M’s complaint

  1. In addition to the complaints raised and addressed above, Mrs X also complains on behalf of Ms M. Ms M complained to the Council about the safety of the walking route.
  2. Ms M did not request an individual appeal but was part of an action group that was appealing the safety of the walking route. The Council explained, “The dissatisfaction from parents back in 2018 was in relation to both the withdrawal of the public bus service and the availability of the walking to school… whilst a number of parents had not received a refusal of travel assistance it was felt at the time that the most appropriate way for parents to appeal the availability of the walking route was to use the Home to School Transport Appeals process to evidence the review of the route”. The Council accepts that this was fault and was not explained when it responded to the Ombudsman’s enquires about Ms M’s complaint. The fault has caused Ms M confusion and uncertainty about the process.
  3. As I have already identified fault in the way the Council carried out the stage two appeal process, the Council considers it would be appropriate for Ms M to make individual verbal representation to the Council as per the Home to School Transport process as she had already been part of the process previously. I welcome the Council’s proposal.
  4. In its stage 2 response letter dated 20 December 2018, the Council explained that it “aims to be clear, consistent and efficient in its response to public enquiries and therefore, wherever possible, the same (or a similar) answer was given where the same (or similar) question was asked”. I appreciate that Ms M and other parents may have felt that this was impersonal approach by the Council, however given the number of enquires the Council received about the same issues, I am satisfied with the Council’s approach to ensure it maintained consistency in the information it provided.

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Agreed action

  1. 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 if the fault by the Council had not occurred.
  2. I have identified fault in the way the Council carried out the stage two appeals process. The Council agrees to within two months of my final decision:
  1. Apologise to Ms M for the faults I have identified;
  2. Consider Ms M’s appeal about the safety of the walking route and transport issues at stage two of its appeal process. Mrs X should be invited to present her case to the panel;
  3. Ensure that the independent panel members are independent of the original decision-making process and suitably experienced. This should ensure a balance is achieved between meeting the needs of the parents and the local authority, compliance with road and safety requirements and that no child is placed unnecessarily at risk;
  4. Review its home to school transport provision in line with statutory requirements.

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Final decision

  1. I have completed my investigation, finding the Council at fault in its consideration of the home to school transport appeal by Ms M resulting in injustice for which I have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman

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