Summary: Mr X complains the Council has failed to properly consider his application and appeal for free school transport for his son. As result, his son has been denied access to free transport. The Council’s failure to comply with the statutory guidance on home to school transport without good reasons for departing from it amounts to fault. This fault has caused Mr X an injustice.

The complaint

1. The Complainant, whom I shall refer to as Mr X complains the Council has failed to properly consider his application and appeal for free school transport for his son. As result, his son has been denied access to free transport.

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The Ombudsman’s role and powers

2. 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)
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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• 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

The Education Act 1996

6. The Education Act 1996 says councils must provide free home to school transport for eligible children of statutory school age 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 a 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 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.

Government guidance

9. The Government issued statutory guidance in 2014, 'Home-to-school travel and transport statutory guidance' ('the guidance') which 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.
10. The guidance says a parent can challenge a decision on the home to school travel application 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.
11. 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.
12. 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".

What happened here

13. Mr X applied for home to school transport for his son to attend School 1. The Council responded the same day refusing to provide assistance. It advised Mr X his son did not qualify for travel assistance as when he choose School 1 there were schools closer to his home address that would have had a place. The Council advised that where parents choose a school further away from their home than the nearest appropriate school available, they will be responsible for transport costs.
14. Mr X appealed against this decision on the basis his son had a diagnosed condition which required him to travel to school under the supervision of his older sibling. The Council states it contacted the special educational needs (SEN) department and the Child and Adolescent Mental Health Service (CAMHS) to confirm whether they had any records of Mr X’s son’s needs. The SEN department had no records, and CAHMS had no recent records relating to Mr X’s son.
15. The Council has a two-stage appeal process. At stage 1 a senior officer reviews the decision. The officer reviewed the information Mr X, the SEN Department, and CAMHS had provided and upheld the decision to refuse travel assistance.
16. As Mr X remained unhappy, he asked for his appeal to be considered further. The Council states that due to an administrative error, it did not deal with the appeal within the 20 working days set out in its policy. An independent appeal panel reviewed the decision at stage 2 in mid-December 2019. The Council’s policy does not allow for verbal representations to the appeal panel. The panel considered Mr X’s written submissions and was satisfied officers had dealt with his request for free travel correctly.

Analysis

17. As recommended by the guidance, the Council has a two-stage appeal process, with a senior officer as the decision maker for stage 1 and an independent appeal panel for stage 2. However, the Council’s process requires parents to make written representations at both stages and does not allow them the opportunity to attend the panel hearing and make verbal representations.
18. The Council’s process does not therefore meet the requirements set out in the guidance which states the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case.
19. As the guidance is statutory guidance rather than an explanatory document or informal advice, 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.
20. I would expect the Council to follow statutory guidance unless it has good reason not to. Any departure from the guidance should give parents at least the same opportunities to present their case. The Council states its current home to school/ college and adult learner transport policy was approved by its legal department and Members in 2019. It has not offered any explanation for its decision to depart from the statutory guidance.
21. The failure to comply with the statutory guidance without good reasons for departing from it amounts to fault. This fault has denied Mr X the opportunity to attend the panel hearing and make verbal representations for the panel to consider.
22. Having identified fault, I must consider whether this has caused Mr X a significant injustice. Mr X has suffered the uncertainty of not knowing whether his verbal arguments could have made a difference to the outcome of his appeal. This fault also has the potential to cause injustice to other parents.

Agreed action

23. The Council has agreed to:
• apologise to Mr X;
• change its home school transport appeal procedure to ensure it meets the requirements of the statutory guidance; and
• offer Mr X a fresh appeal with a new panel, which should include the opportunity to attend the panel meeting and make verbal representations.
24. The Council should take this action within two months of the final decision on this complaint.

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Final decision

25. The Council’s failure to comply with the statutory guidance on home to school transport, without good reasons for departing from it, amounts to fault. This fault has caused Mr X an injustice.

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Investigator's decision on behalf of the Ombudsman