Summary: Mrs B complains that the Council was wrong to refuse home to school transport for her son, C, to the voluntary-aided Church of England secondary school that he attends. The Ombudsman considers that parts of the Council’s policy are unclear and that the Council should review its policy and the information it provides to parents. We also consider that there were some flaws in the appeals process. However, we do not consider that this affected the Council’s decision that C was not eligible for transport or its decision not to exercise discretion to disapply its policy and provide transport for C.

The complaint

1. Mrs B complains that the Council was wrong to refuse home to school transport for her son, C, to the voluntary-aided Church of England secondary school that he attends and that it should provide transport for him. She considers that the Council has not applied its school transport policy correctly, fairly, or consistently.
2. She also complains that the Council delayed in responding to her request to review its decision, did not provide clear reasons for refusing transport for C or allow her to present her case in person. As a result, she could not properly challenge the appeal panel’s decision to refuse transport .

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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. 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

5. I have considered Mrs B’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses together with the papers from the appeal panel. I have considered the Council’s Home to School Transport Policy and secondary school admissions booklet and the Department for Education’s Home to school travel and transport guidance. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Transport for eligible children to the nearest suitable school

6. The Department for Education issued Home to School Travel and Transport Guidance (statutory guidance) in July 2014. (The Education Act 1996 sections 508 and 509, and part 6 of the Education and Inspections Act 2006)
7. Councils are required to make travel arrangements and provide free transport for “eligible children” of compulsory school age to attend their nearest suitable school. Eligible children are defined in Schedule 35B of the Education Act 1996 and include:
• children living outside “statutory walking distance” from the school (two miles for children aged under eight, three miles for children between eight and 16);
• 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 (aged 11 to 16 and for transport to one of their three nearest qualifying schools); or
• the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.
8. I refer to the above as the statutory criteria.

Discretionary transport

9. Councils can also provide transport on a discretionary basis for children who do not meet the statutory criteria. The statutory guidance states that “it is very much for the individual local authority to decide whether and how to apply this discretion”. Moreover, the guidance recognizes that an authority will need to balance demands against their funding priorities.
10. I refer to the above as the discretionary criteria.

Discretionary Transport - The Council’s policy

11. Under the Council’s policy, it will use its discretionary powers to provide transport for children aged over eight (and where the distance is over three miles) to the nearest voluntary-aided or foundation school of the relevant religion / faith. If no place is available at the nearest voluntary-aided or foundation school, the Council will not provide transport unless the statutory low-income criteria apply.
12. The Council measures home-to-school distances by the shortest walking distance along which the child, accompanied as necessary, may walk with reasonable safety. The walking distance is measured from the home gate or drive nearest the school to the nearest available school gate. The Council determines the route and this may include footpaths, bridleways, other pathways, and recognised roads.

Publication of general arrangements and policies

13. The statutory guidance requires councils to publish their general arrangements and policies for home to school travel and transport for children. It says that this information should be clear and easy to understand.

What happened

14. Mrs B and her family live near the edge of the Council’s area, which is divided by the River Mersey. Mrs B’s son, C, was due to transfer to secondary school in September 2019. There is no secondary school within three miles of their home.
15. Most secondary schools in the nearest town are oversubscribed, so Mrs B says that local parents consider that there is no point applying to those schools. However, school places are available in the town on the other side of the estuary.
16. Mrs B and her family attend their local church and were keen for C to attend a Church of England (CofE) school. They applied for a place for C at a CofE school around 8.6 miles from their home and located in another council area. They put another nearer CofE school in that same council area as their second preference. They did not express a preference for any non-faith schools, and there are serval CofE schools closer to their home. C was awarded a place at his first preference school.
17. In July 2019, Mrs B applied for home to school transport for C. Before submitting the application form, she contacted the Council and said, “I am unable to tick any of the eligibility criteria on the Form but I do not think that necessarily means that we are not entitled to assistance”. Her view, based on her reading of the statutory guidance, was that C should be entitled to transport regardless of the school chosen because there was no school within three miles.
18. The Council explained that C would be eligible for a bus pass to the school in the nearest town as it was over three miles away. It also sent her an information leaflet on school transport and referred her to section five (in the event that her application was to a religious school). This section explains that the Council will use its discretionary powers to provide transport only to the nearest school of the relevant faith. It will not provide transport to any further school even if the closest school is unavailable unless the statutory low-income criteria apply.
19. Mrs B says the officer advised her to fill in the form without ticking any of the boxes. The Council considered her application and wrote to her at the end of July 2019. It refused transport for C as he was not attending the nearest qualifying school, though it did not specify the school.
20. In early August, Mrs B wrote to the Council. She raised a series of concerns and asked the Council to review its decision and award transport. She contacted the Council again in mid-September as she had received no response. The Council responded shortly after. It explained that it was required to consider travel assistance to the nearest qualifying school provided that the chosen educational setting (i.e. CofE school) was in excess of three miles from her home address. C’s school was over three miles away, but it was not the nearest CofE school, so he was not entitled to transport. The Council again did not name the school.
21. In its response to Mrs B’s first-stage appeal, the Council advised her that she could appeal to a panel comprising the Operational Director – Education, Inclusion & Provision (Operational Director), and the Portfolio Holder for Children and Young People.
22. Mrs B complained that the Council had not answered her questions fully and asked to escalate her appeal. The Council considered her appeal under the second stage of its procedures.
23. The notes of the panel’s decision show that it considered each of the points that Mrs B had raised but did not consider that C met any of the eligibility criteria to be offered transport. It explained in its decision that the nearest school offering a CofE education was a joint-church Catholic/CofE voluntary-aided school in the Council’s area, located in the town on the other side of the estuary. According to the Council’s route measurement, this school was around 6.7 miles from Mrs B’s home.
24. The panel also noted Mrs B’s desire for C to attend a CofE school but did not consider that Mrs B had provided any exceptional reasons why the Council should exercise its discretion to depart from its usual policy.

Analysis

The Council’s policy, information leaflet and application form

25. The Ombudsman considers that it is important that policies and procedures are both clear and consistently applied so that, when applying for schools, parents may make informed choices about eligibility for school transport. In the Ombudsman’s Focus Report on School Transport published in March 2017, we identified the need, in order to avoid findings of fault, for Councils to, “ensure information about how to find out which school is the nearest for school transport is clear and accessible and that it may be different to their catchment area school for admissions”.
26. The Council’s policy explains that transport will be provided to the nearest qualifying school with places available. The locations of schools in the Council’s area are shown on a map in the School Admissions Booklet and on the Council’s website. The School Admissions Booklet also contains information on which schools were oversubscribed the previous year, and under what criterion the last place was offered.
27. However, I consider that there are parts of the policy which are not “clear and easy to understand”:
• Applicants are invited to contact the Council if they have questions, but there is no clear advice or mechanism provided in the Council’s policy, information leaflet or on its website as to how to determine the nearest qualifying schools.
• The Council’s policy and information leaflet do not make it clear to parents that the nearest suitable qualifying school with places available and for which transport may be provided may be out of borough.
• The Council’s policy and information leaflet do not explain under what circumstances it will provide transport if the nearest qualifying school has no available places, or how preferences may affect transport eligibility.
28. I do not consider that either the Council’s policy or information leaflet are clear in this regard, and that is fault.
29. Furthermore, the application form for assisted school transport asks parents to tick the applicable boxes which set out eligibility criteria, However, the boxes do show that parents may apply on the basis of either:
• the nearest qualifying school (where the low-income criterion does not apply);
• the nearest qualifying school on grounds of religion or belief (where the low-income criterion does not apply); or
• the nearest qualifying school on the basis of route safety.
30. I do not consider that the application form makes it sufficiently clear to parents on what basis they may apply for transport. That is fault. This might discourage some eligible parents for applying for transport.

The Council’s appeals process

31. The statutory guidance recommends that local authorities adopt a two-stage appeal process with the first stage being a review by a senior officer and the second stage being a review by an independent appeal panel, which will consider both written and verbal representations.
32. The Council’s Executive Board approved its revised policy in April 2017. The Council has a two-stage appeal process with a senior officer as the decision-maker for the first stage and an independent appeal panel for the second stage. However, there is no provision for parents to present their case in person.
33. The Council notes the “recommendation” contained within the statutory guidance regarding the consideration of oral presentations at appeals but, in discussion at the time of policy determination with other (regional) councils, it did not adopt that “recommendation”. It says that if the “recommendation” were to change to a “must” then it would adopt that approach but, as it stands, its view is that it adheres to all statutorily required elements of the DfE guidance.
34. The statutory guidance says that parents should be able to present their case and there are good reasons for this including: transparency; natural justice and the opportunity for all parties to ask questions.
35. The status of the guidance is a material consideration. It is statutory guidance, not simply an explanatory document or informal advice. So, it has a significant status and councils have a duty to have regard to it when formulating their policy. It is open to councils to depart from statutory guidance, but the courts have said they can do so only if they have cogent reasons for doing so.
36. The Council has confirmed that there was no reference to this element of the statutory guidance regarding appeals in any papers to the Executive Board when the revised policy was adopted.
37. Accordingly, the Council has provided no evidence to demonstrate that there has been a balancing exercise to weigh the loss of the public’s right to make oral representations against any perceived benefits in the current process. That is fault. This omission could clearly cause an injustice to some parents who might not be able to articulate their case as clearly in writing as they might in oral evidence to the panel.
38. The Council should review its policy and ensure that it properly considers whether there are sufficient grounds for it to depart from the recommendations set out in the statutory guidance.

The Council’s response to Mrs B’s review request and appeal

39. Mrs B complains that the Council delayed in responding to her request to review its decision and did not answer her questions properly at the first stage appeal.
40. There was around two weeks’ delay beyond the 20 working-day target in the Council’s response to Mrs B’s first stage appeal. This was fault and I appreciate that this was frustrating for Mrs B. However, this had no bearing on C’s eligibility for transport, so I do not consider that this warrants further action.
41. I note that the Council did not answer all Mrs B’s questions in her first stage appeal. Instead, the officer explained that transport had been refused because the chosen faith school was not the nearest qualifying school. The officer noted the personal circumstances that Mrs B had put forward and her desire for C to attend a faith school but considered that the policy had been properly applied.
42. The Council might have provided a more detailed response at the first stage of the appeal process, but the officer’s task was primarily to explain the basis for the decision. That said, the Council should have told Mrs B at this stage (if not earlier) which school it considered to be the nearest school.
43. The Council’s completed the second stage appeal within its timescales. I consider that, overall, the Council assessed and responded appropriately in its decision letter to the points that Mrs B had raised. However, as set out above, there was fault in not allowing an oral appeal.

Was C entitled to transport under the statutory criteria?

44. Mrs B said in her appeal that the Council had a duty to provide transport for all pupils over eight if the home to school distance was over three miles. She has explained that an officer told her that transport would be provided to the nearest Halton school if the distance was over three miles.
45. The panel said that the officer’s statement would be correct if Mrs B had applied for a place at the school, it was over three miles away, was the nearest qualifying school and C had been offered a place. However, it said that this was not relevant to Mrs B’s application as she had only applied to CofE schools.
46. The nearest qualifying school was in fact a non-faith school in the neighbouring borough. However, this was not in the list of schools presented to the panel and this suggests that not all relevant schools were taken into consideration when considering Mrs B’s appeal. This was fault.
47. However, the panel was correct to say that this was not relevant to Mrs B’s application, as Mrs B had not applied for a place at the nearest qualifying school with places available. C was also ineligible under the low-income criterion, as the family do not meet the free school meals or working tax credit criteria. So, there was no entitlement under the statutory criteria.

Was C entitled to transport under the discretionary criteria?

48. Mrs B has explained that the statutory guidance says, “wherever possible, local authorities “should ensure that transport arrangements support the religious or philosophical preference parents express”. She considers that the Council has not considered exercising discretion.
49. The Council does exercise discretion within its policy by providing transport to the nearest appropriate faith school (but only to the nearest faith school).
50. However, the panel considered that C was not eligible for transport to his present school under this criterion because the nearest CofE school is the joint-church school on the other side of the estuary.
51. The panel was wrong to refer to the joint-church school on the other side of the estuary as the nearest faith school. There is a joint-church Catholic/CofE school in the same borough as C’s school which is closer to C’s home, and at which places were available. Moreover, there are two CofE schools in the same borough as C’s school which are nearer than C’s school. Although this was not brought to the panel’s attention, it is quite clear therefore that C’s current school is not the nearest CofE school. The panel was correct in concluding that he was not eligible for transport to his current school.
52. I have however gone on to consider whether the misleading information provided to the panel, the lack of clarity in its policy and publications and the absence of an oral hearing are likely to have affected the outcome of Mrs B’s appeal.

Did the Council consider whether there were exceptional circumstances?

Nearest schools oversubscribed

53. Mrs B did not apply for a place for C at any of the schools in the nearest town. She said in her written appeal that the school the Council regarded as the nearest school was oversubscribed and that C would not have got a school place in the nearest town. She also says that, had she been able to present her case in person, she could have explained to the panel that an independent school admissions appeal panel had offered places to children in the nearest town, because schools across the estuary were not readily accessible. She considers that the panel might have upheld her appeal had she been able to put this forward. Given the difficulty of getting places at the nearest schools, she feels that the Council should review its policy.
54. The panel considered Mrs B’s concerns that C would not have got a place at a nearer non-faith school but understood that places were available at nearer schools. In this regard, I note that all applicants to the voluntary-aided Catholic school in the nearest town, which would generally be viewed as a qualifying school, were offered places. So, the panel was correct to say that there were school places available in the nearest town.
55. The panel made no reference to the nearest school, which is a non-faith school in the neighbouring borough with places available. This was fault. However, I do not consider that this would have affected its decision whether to exercise discretion. Had the panel been aware of this, this would merely have confirmed that there were nearer schools with places available for which Mrs B could have applied.
56. Since the panel decided not to exercise discretion on the correct assumption that there were places available at a school in the nearest town, it is not for the Ombudsman to question its decision not to exercise discretion to offer transport.

Nearest faith school inaccessible

57. Mrs B was not told which school the Council considered to be the nearest faith school. She says that, had the Council confirmed this, she could have explained to the panel that the bridge across the estuary was closed and the walking route was unavailable. She could also have explained that local bus services would not get C to that school in time for the start of the school day.
58. However, even if this had been raised and been considered relevant, I see no grounds to conclude that this would have affected the decision to refuse transport. Although this was not brought to the panel’s attention, there are two CofE schools and a joint-church Catholic/CofE school in the same borough as C’s school which are all closer to C’s home than C’s school.
59. Mrs B says that, had she been able to attend the appeal hearing, she could have explained that one of the schools (which was their second preference) was single sex and that she wanted her son, as an only child, to attend a mixed school. She says that she could also have explained that there was little difference between the distance to the two schools.
60. There was fault in that the panel was not made aware of the nearer faith schools and Mrs B did not have the chance to put her comments to the panel in person. But there were several faith schools closer to Mrs B’s home, one of which is a mixed school just over half the distance than to C’s current school and where places were available. So, had the panel been given details of the nearest CofE schools and had Mrs B been able to present her case in person, I see no grounds to conclude that the panel would have changed its view not to exercise decision.
61. Diocese - Mrs B commented in her appeal that the joint-church school is in a different diocese. However, the panel correctly concluded that this had no bearing on the eligibility for transport under the Council’s policy.

Was the Council’s decision to refuse transport inconsistent?

62. Mrs B suggested that the Council was treating her son differently from another child in the same road for whom she understood it was providing transport to the same school.
63. The panel considered Mrs B’s comments about transport for the other child and has provided comments to the Ombudsman. I cannot comment on the details of this case as this is third-party information, but I am satisfied that C has not been treated in an unfair manner in this regard.

Is there evidence of bias in the Council’s decision?

64. Mrs B says she was previously unaware of the exact composition of the second stage appeal panel. She considers that, due to prior dealings between herself and the Operational Director the year before, the Operational Director should have recused herself from the appeal panel.
65. The Council said in its response to Mrs B’s first stage appeal that the Operational Director would be part of the appeal panel. So, there was no fault here.
66. As to whether there were grounds for the Operational Director to have recused herself from the appeal, that was for the officer to decide.
67. Although there were flaws in the way the appeal was conducted, I see nothing to suggest that there was bias in the decision-making process. It is however open to Mrs B to complain to the Council if she considers that there has been a breach of the Officer’s Code of Conduct.

Agreed action

68. The Council has agreed that, within three months of the final decision date on this complaint, it will:
• review its policy (and information leaflet) so that parents can understand:
• that the nearest suitable school with places available may be out of borough, and how the Council applies it policy in respect of in and out of borough schools;
• how to determine the nearest qualifying schools for school transport purposes;
• under what circumstances it will provide transport if the nearest school has no available places, and how preferences may affect transport eligibility.
• review its application form to ensure that this sets out with sufficient clarity the basis on which parents may apply for transport;
• review its second stage appeals process and ensure that it properly considers whether there are sufficient grounds for it to depart from the recommendations set out in the statutory guidance;
• review the content of its decision letters to ensure that they meet the standards set out in the statutory guidance in terms of clarity and detail;
• take steps to ensure that, when considering appeals, all relevant schools are taken into consideration.

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Final decision

69. I have closed my investigation into Mrs B’s complaint. Although there has been fault on the part of the Council, I do not consider that this affected its decision that C was not entitled to transport and not to exercise discretion to provide transport.

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Investigator's decision on behalf of the Ombudsman