Summary: Mr X complained about the Council’s decision not to award his daughter home to school transport. The Ombudsman finds the Council was at fault in how it considered the information at the appeal panel. The Council has agreed to hold a further appeal to remedy any injustice caused.

The complaint

1. Mr X complained about the Council’s decision not to award his daughter home to school transport. He believes the Council has discriminated against his daughter, because she was too young for home to school transport when they first applied. Mr X said the Council’s decision could potentially lead to him having to stop work so he can collect his children from school.

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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 read the appeal documentation including a supporting statement by Mr and Mrs X’s social worker, and the Clerk’s minutes.
5. Mr 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

6. Councils have a duty to provide free home to school transport for eligible children to qualifying schools.
7. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or mobility problem; or
• live beyond the statutory walking distance; or 
• receive free school meals, or whose parents receive the maximum Working Tax Credit.
8. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety.
9. The nearest 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.
10. Councils also have the power to provide discretionary funding for home to school transport for children who are not eligible.
11. The Government has set out a recommended two stage review and appeals process for parents who wish to challenge a decision about their child’s eligibility for travel support:
• Stage one: Review by a senior officer.

• Stage two: Review by an independent appeal panel.

12. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council. The Council follows the recommended two-stage process.

The Council’s policy

13. The Council provides home to school transport for children aged four upwards. For children of pre-school age, the Council provides passengers assistants when it transports them to school.
14. The Council follows the recommended two stage appeals process. It provides discretionary funding in exceptional circumstances and considers those on a case by case basis.

Background

15. Mr X and Mrs X have two children Y and Z. Both are primary school age. They live 0.3 miles away from School A, and 2 miles away from School B.
16. Z is the eldest child. He goes to School B because there was no space available at School A when they moved to the area. The Council provides a taxi to transport Z to school.
17. Mr and Mrs X applied for Y to go to reception at School B. They applied for home to school transport. Mr and Mrs X said the Council turned down that request for transport because Y was three years old and the Council did not provide transport until age four.
18. Mr and Mrs X then applied for Y to go to their nearest school, School A. However, they said they turned that down on the advice of School B and children’s social care who were supporting the family.
19. Mr and Mrs X made a further application for Y at School B. They also applied for home to school transport, however the Council refused, because she was not attending her nearest available school.
20. Mr X appealed the Council’s decision. The social worker working with the family provided a written statement in support of the appeal. That said:
• Mrs X could not take Y to School A (the closer school) because Z’s taxi would collect and return him at the same time as Mrs X would need to take Y to the different school.
• Z could not be left unsupervised so Mrs X could not leave him whilst she took Y to school A.
• If Y had to go to School A, Z would also have to change school. There were concerns about Z having to change school placement.
21. The social workers report did not explain why children’s social care were working with the family, what the family’s needs were and why a change of placement would be so damaging for Z.
22. Mr X, the headteacher of School B and the family support worker attended the appeal. The headteacher explained that if Y were to go to School A, that would result in Z moving. They said that would be destabilising for the whole family.
23. The panel were told that Y could not go in the taxi with Z because she would need a passenger assistant at an extra cost of £20 a day. Mrs X could not act as the passenger assistant because the taxi also collected other children and was not big enough. An additional vehicle would cost the Council £50 a day.
24. Mr X said he worked from 10am until early evening. He said that he could help take Y to School B in the morning but was not available in the afternoon.
25. The appeal panel upheld the Council’s decision not to provide transport. In the decision letter it said:
• Y’s attendance at school B was parental preference;
• there had been no fault in how the Council had applied its policy; and
• Y did not qualify under exceptional circumstances because of the family’s situation.
26. Since the appeal, Mr X tells me that the Council has allowed Y to share a taxi to school with Z and that they have signed to say they are happy for her not to be accompanied by a passenger assistant. As Y is not eligible for home to school transport, School B is currently paying the Council for this transport. Mr X said School B cannot pay for the transport long-term and that would result in the children either changing schools, or him having to leave his job.

My findings

27. The Ombudsman is not an appeal body and we cannot criticise a decision which is properly made or intervene to substitute an alternative view. I have examined the appeal papers and notes taken by the Clerk during the appeal hearing.
28. The Clerk’s notes show the panel:
• Were unclear why Mrs X could not walk Y to School A, and question whether they should have asked about that in the hearing. The social worker’s report explained why Mrs X was unable to take Y to School A, therefore I am not confident the panel read this, or if they had, properly considered the information it contained.
• Discussed children’s social care funding home to school transport for Y, with a panel member stating, “they have a budget”. There was no information presented to the panel that children social care had a budget to fund Y’s home to school transport.
• Said they should “stick to policy” as “a solution will be found”. The purpose of the panel is for the Council to consider using its discretion to go outside of its policy. The panel did not fully discuss diverting from policy. Nor did the panel offer recommendations as to the “solution” to resolve the transport difficulties.
• Speculated that if the Council provided home to school transport for Y, it would have to pay for another vehicle to transport Y until she left primary school. That was incorrect. The policy states a passenger assistant is only required for children of pre-school age. The Council has also allowed Y to travel without a passenger assistant with agreement from Mr and Mrs X.
29. Given the above, I am not confident the panel fully considered all the facts of the case and did not seek additional information where needed as part of their discussions. Therefore, I am of the opinion there was fault in how the Council made its decision.

Agreed action

30. Within two months of my final decision, the Council has agreed to arrange another appeal with a different panel to consider Y’s home to school transport.

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Final decision

31. The Council’s home to school transport appeal panel was at fault in how it considered Mr X’s appeal. The Council has agreed to arrange a new appeal with a different panel to remedy any injustice caused therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman