Summary: Ms X complained that the Council failed to consider her application and appeal for home to school transport for her children properly. We do not find fault in the way the Council decided Ms X’s case. But we consider the Council’s current school transport policy is flawed in that it does not allow for people who would be disadvantaged by not being able to present an appeal through verbal representations to be able to do so. The Council is already reviewing its processes to address this issue. It has agreed to tell the Ombudsman the outcome and amend its policy.

The complaint

1. Ms X complained that the Council failed to consider her application and appeal for home to school transport for her children properly. As a result she has to pay for their transport and she says this is putting her in financial hardship.

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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 discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport and the Ombudsman’s published report on another complaint, reference 19008896. 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

Home to school transport

5. Councils must provide free home to school transport for eligible children of compulsory school age to qualifying schools.
6. Eligible children include those who:
• cannot walk to school because of their special educational needs, disability or a mobility problem;
• live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above); or
• receive free school meals, or whose parents receive the maximum Working Tax Credit, for transport to one of the three nearest schools up to a distance of six miles.
7. The qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.

Statutory guidance on appeals

8. Statutory guidance ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’) recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support:

• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.

9. The Guidance says a parent can challenge a decision on the basis of entitlement, distance measurement, route safety and consideration of exceptional circumstances. The parent can challenge the officer’s decision and request a review by an appeal panel.
10. The Guidance says the independent appeal panel should consider “written and verbal representations from both the parent and officers involved in the case”. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.
11. The Guidance says, “Previous guidance made clear that local authorities should have in place and publish their appeals procedures but left it to the individual authority to determine how this should operate in practice. We are now recommending that local authorities adopt the appeals process set out below… The intention is to ensure a consistent approach across all local authorities, and to provide a completely impartial second stage, for those cases that are not resolved at the first stage”.

Council policy on appeals

12. The Council’s ‘School Transport Policy’ provides for a two-stage appeal process as follows:
• Stage 1: review by a senior officer
• Stage 2: appeal to the Discretionary Transport Appeal Panel made up of three local councillors. The applicant completes a form and provides written reasons for the appeal and any evidence that explains the situation, like a letter from their GP or social worker. If the appeal is due to financial hardship, they must complete the financial statement.
13. The policy says the Appeal Panel will review the documents and decide if the reasons are exceptional. “Parents cannot appear in person and the Panel’s decision is final”.

Ombudsman’s report

14. The Ombudsman issued a published report 19008896 in August 2020 which found fault with the council in that case because:
• its school transport appeals process did not give parents an opportunity to make oral representations to the appeal panel, as recommended in the Guidance; and
• the council had not provided sufficiently good and cogent reasons for departing from the Guidance.

What happened

15. Ms X has two children, G and H. She is a single parent on a low income. The family moved home in February 2019 when G was in secondary school and H was in Year 6, due to start secondary school in September 2019. Ms X says before she moved, she looked at local schools and applied for places at School 1, the nearest secondary school to her new address. She says her children were not offered places there. The Council says it has no record of Ms X applying to School 1 for places for either of her children.
16. On 13 January 2019 the Council received an application from Ms X for a place for her older child, G, at School 2. She said she needed a place from February 2019 as she was moving to the area. She gave School 2 as her sole preference. The application was successful and G was offered a place.
17. On 18 January 2019 the Council received an application from Ms X for a place for H at a local primary school and for a secondary transfer for him to School 2.
18. At the end of January 2019 Ms X submitted a further application for a secondary school place for H. She gave School 2 as her first and only preference. She said she felt this would be the best school for H as he would get support from his brother who would be attending School 2.
19. At the end of January Ms X wrote to the Council to ask about school transport for G. The Council replied that he did not qualify as he was not attending his nearest suitable school. School 1 was closer to their home than School 2.
20. H started at School 2 in September 2019. The Council provided him with a free bus pass for home to school travel.
21. Ms X therefore contacted the Council to ask about free transport for G. The Council looked into it and found it had made a mistake in issuing the bus pass to H. It told her it would now have to cancel it.
22. Ms X then applied for transport on low income grounds. The Council refused the application. It said she did not qualify because she was not on maximum Working Tax Credit, and School 2, her second closest school, was more than six miles away.
23. Ms X appealed in October. The Council says there was no stage 1 review but the case went straight to the Discretionary Transport Appeal Panel in mid-November 2019. Ms X completed the financial information form, giving details of her income and outgoings.
24. The appeal was unsuccessful. The Panel wrote to Ms X with its decision. It said her children did not qualify for free transport under the Council’s policy and its legal duties. This was because it was her choice to send them to School 2 when they could have received a suitable education at School 1, which is nearer to her home. It explained it is part of the Council’s policy to withdraw transport offered in error. It had considered the financial information she provided but decided her circumstances did not amount to exceptional family hardship, as the monthly surplus appeared to cover the cost of school travel.

Analysis

Decision on Ms X’s application

25. Based on the evidence I have seen I do not consider there was fault in the way the Council reached its decision on Ms X’s application and appeal for school transport. Her children would not be eligible for free transport under the law or the Council’s policy if they are not attending the nearest suitable school with places available. Ms X says she applied for places at School 1 and was refused. She has not provided any evidence to support this statement. On the other hand the Council has provided evidence that she did not apply for places at School 1. Ms X has had an opportunity to provide further evidence showing she applied unsuccessfully to School 1 but has not done so. On balance, then, I cannot say the Council was at fault in finding the children were not attending their nearest suitable school.
26. Although Ms X is on a low income, she did not meet the particular criteria needed to qualify on those grounds under the law and policy. She did not provide evidence that she was on Maximum Working Tax Credit and School 2 is too far from her home.
27. The Appeal Panel then considered whether to use its discretion to award transport outside of the policy because of financial hardship. I am satisfied that the Panel considered the evidence Ms X provided about her financial circumstances properly and explained its reasons. So I cannot criticise the decision it reached, however much Ms X disagrees with it.

Appeal process

28. As part of my enquiries I asked the Council to explain why it had decided to use an appeal system that does not give parents an opportunity to present their case in person, as recommended by the statutory Guidance. In line with the Ombudsman’s report 19008896 I asked the Council why it had departed from the Guidance.
29. The Council’s response was that following the Ombudsman’s report it had sought advice from Leading Counsel. According to the legal advice it received it said it did not consider its appeal process represented a departure from the Guidance. The legal advice was that the Guidance says the opportunity for verbal representations is recommended, not compulsory, and says “the specifics” of the process “will need to be decided by local authorities”. So its interpretation of the Guidance is that it simply allows for the possibility of making verbal representations and leaves it to the discretion of local authorities whether to do so and in what circumstances.
30. However the Council says it accepts there may be exceptional cases where parents may be significantly disadvantaged in making their appeal if they cannot make verbal representations. In those situations the Council says it will decide on the circumstances of the individual case whether it would be a reasonable adjustment for the parents to attend the appeal panel in person or through a remote hearing. The Council says it is currently reviewing its processes for identifying those parents and looking at the options for enabling them to present their case verbally.
31. I cannot say the Council is at fault for following legal advice it received. However I consider there is fault in the current School Transport Policy in having no provision for reasonable adjustments for parents or carers who may have difficulty pursuing their appeal through written information only. While we welcome the Council’s acceptance that there may be cases where parents would be disadvantaged in this way, this should be reflected in its policy. Parents should be able to readily understand there is discretion for verbal representations to be made in some circumstances.
32. Ms X has not said she had any difficulty in dealing with the appeal in writing. Also my view is that the Appeal Panel was not at fault in the way it reached its decision. So I do not have evidence to suggest that Ms X was disadvantaged by not being able to present her case in person.

Agreed action

33. We welcome the Council’s review of its appeals process in order to ensure parents who would be disadvantaged by not being able to make verbal representations at stage 2 are given the opportunity to do so.
34. The Council has agreed to tell the Ombudsman the outcome of the review and amend its School Transport Policy accordingly.

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Final decision

35. I find that the Council was not at fault in the way it decided Ms X’s application for school transport. I do not find the Council at fault for following legal advice about the format of its stage 2 transport appeal hearings. But I consider its school transport policy is flawed as it does not provide for reasonable adjustments for people who may need the chance to make verbal representations to enable them to pursue their appeal. The Council is reviewing its processes and has agreed to amend its policy and tell the Ombudsman the outcome. I am satisfied with the action the Council is taking and so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman