Summary: Mr X complained about the way the Council dealt with his appeal for school transport for his son. The Council was at fault as its appeals process did not allow for parents to put their case in person or by telephone at the second stage. The Council has amended its policy to allow for this since it dealt with Mr X’s appeal. The Council has agreed to review its decision at stage two under the amended policy and give Mr X the opportunity to make oral representations.

The complaint

1. Mr X complained that the Council did not consider his family circumstances fully when deciding his appeal for school transport for his son. He said he could not afford to pay the cost of transport and does not know how he will get his son to school.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
3. 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 discussed the complaint with Mr X and considered the information he provided. I considered the Council’s response to my enquiries. I considered relevant law, policy and guidance on home to school transport and the Ombudsman’s published report on another complaint, reference 19008896. 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

Home to school transport

6. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. (Education Act 1996, 508B(1) and Schedule 35B)
7. Eligible children include those who:
• live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above);
• 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.
8. 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.
9. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

Statutory guidance on appeals

10. There is statutory Guidance ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’), issued in July 2014. Councils must take account of the Guidance when setting their transport policies. 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.
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 should be independent of the original decision-making process but do not have to be independent of the council. They should be “suitably experienced”, at the council’s discretion.
12. The stage 2 decision notice should set out the decision, the information and factors considered, and the rationale for the decision. It should also include information about parents’ right to contact the Ombudsman if they consider there were flaws in the way the council considered their appeal.
13. The 2014 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

14. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport under the legal criteria.
15. It says unless the low income criteria are met, transport will not be provided to a school if:
• there is any nearer school to the home for which a parent did not apply on the original admission application
• there is a nearer available school which was listed as a lower preference on the original admission application
• the parent has rejected an offer of a place at any nearer school.
16. It also allows for the Council to award transport where it considers there are exceptional circumstances. It must be satisfied that the parents have demonstrated there are social, medical, financial or personal reasons why they cannot take the child to school themselves.
17. The Council has a two-stage transport appeals system as follows:
• Stage 1 - consideration by an officer more senior than the previous decision maker. This is a Service Manager in the admission and education awards section.
• Stage 2 - a full and final decision made by an officer more senior than the officer that considered the first stage appeal. This is the Head of Statutory and Regulated Customer Services.
18. The policy also includes another process for parents to challenge decisions about the safety of a walking route. This involves an inspection of the route using national assessment guidelines and the opportunity to appeal to a Member Appeals Panel.
19. In April 2020 the Council amended its policy to include the following:

“Where a parent feels he or she is unable to fully and clearly make their case in writing at the second stage of appeal, they may request a telephone or in person appointment with the second stage decision maker to explain their case orally.”

“In all circumstances, there will still need to be a written appeal submitted by the parent (or their representative) as their grounds for reconsideration at the second stage of appeal.”

What happened

20. Mr X has a son, Y, who lives with him. He is separated from Y’s mother who is unable to care for Y and has a history of abusive behaviour. Children’s Social Care were involved with the family for several years. Mr X obtained a place for his son from September 2019 at a school over six miles from his home, School 1. He rejected the offer of a place at a school closer to him and did not apply to other schools closer to home. This was because he wanted Y to attend a school outside his local area to reduce the risk of his mother coming to the school.
21. Mr X applied to the Council for help with transport to School 1. The Council rejected his application because Y was not attending his nearest suitable school.
22. Mr X went through the two stages of appeal. He argued that there were exceptional family circumstances which would justify the Council awarding free transport. Also he said as a single parent on a low income he could not afford the cost of home to school travel for his son.
23. The appeals were unsuccessful. The Council’s final decision on 17 December 2019 was that Y did not qualify for free transport under its policy as Mr X had not applied for available places at nearer suitable schools. He could not qualify on low income grounds as School 1 was more than six miles from home. The Council did not consider Mr X’s circumstances exceptional as it said any school, along with the responsible parent and other agencies, would have to take steps to manage the concerns about the mother’s behaviour.
24. Mr X complained to the Ombudsman as he felt the Council had not taken proper account of his family circumstances. He also referred to his financial difficulties and the cost of providing transport for Y to school.
25. In September 2020 School 1 decided to pay for a bus pass for Y out of its own funds as it said it wanted to ensure Y attended school. Mr X understands this offer is for the autumn term only. He does not know if it will continue in the new year.

Analysis – was there fault causing injustice?

School transport appeals process

26. The Guidance recommends local authorities adopt a two-stage appeal process with stage 1 being a review by a senior officer and stage 2 being a review by an independent appeal panel.
27. The Council has a two-stage process, but the second stage is a review by an officer more senior than the stage 1 decision-maker, rather than an independent appeal panel. The process therefore departs from the system recommended in the statutory Guidance.
28. At the time of Mr X’s appeal the Council’s system also departed from the Guidance in another way, by not giving appellants any opportunity to make verbal representations.
29. The Ombudsman issued a published Report, reference 19008896, in August 2020 which found fault with the council in that case because:
• its school transport appeals process did not comply with the system recommended in the statutory Guidance; and
• the council had not provided adequate reasons for departing from the Guidance.
30. In the Report the Ombudsman set out his views as follows.
• Statutory guidance has 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 clear and cogent reasons for doing so.
• We would expect a 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. Omitting the right to make oral representations from the appeals process could cause an injustice to some parents who might not be able, for whatever reason, to articulate their case as clearly in writing as they might in oral evidence to a panel.
31. In that case the second stage of appeal was an independent appeal panel but the parent could not attend the panel to present their case. The Ombudsman did not consider the council had provided satisfactory reasons for not following the Guidance. He did not find cost-savings and speed of decision-making to be a sufficient reason to remove an important right of representation for the public in an appeal process. There was no evidence to demonstrate the council had carried out a balancing exercise to weigh the loss of the public’s right to make verbal representations against the perceived gains in efficiency.
32. In this investigation I asked the Council to explain how and why it had decided to adopt an appeal process that did not include an appeal panel at stage 2. I also asked it to provide details of cases where it had overturned decisions at stage two and allowed the parents’ appeal. This was to try to establish if it appeared the alternative stage 2 appeal system it had adopted was operating fairly.
33. The Council provided details of how it considered its appeals process in response to the amended Guidance in 2014. The paper set out its reasoning for not adopting the recommended appeal process involving an independent appeal panel at stage 2. It referred to several factors including that:
• The Guidance says the proposed appeals system is recommended but not compulsory.
• There is no specific legal framework requiring independent appeal panels for school transport appeals unlike for school admission appeals, which are established by law with a binding appeals code.
• Local authorities cannot therefore delegate their decision to an outside body.
• Its two-stage officer review process allows the decision to be considered by two subject matter experts each independent of the previous decision-maker, and not involved in the previous decisions.
• The policy itself allows the Council to consider exceptional and extenuating circumstances.
• Its policy has shorter timescales than in the recommended process allowing for quicker decision-making.
• The policy allows for decisions about safety of the walking route to go through a separate two-stage process with a member panel at stage 2.
34. The Ombudsman has considered the Council’s appeals process in a number of investigations since then and did not find fault.
35. However in 2020 the current Ombudsman took the view that the Council’s process would not be satisfactory without an opportunity for parents to make oral representations. Following correspondence with the Council on another complaint, the Council agreed to review the process. This resulted in the amendment to the policy introduced in April 2020 (referred to in paragraph 19 above) allowing appellants to ask for the chance to explain their case by telephone or in person at stage 2.
36. The Ombudsman has reviewed the information and explanations the Council has provided again. He considers the Council has provided sufficiently clear and cogent reasons for departing from the Guidance. We have also considered the information provided about successful stage 2 appeals. Although it was a small sample, the Ombudsman is satisfied there is sufficient evidence to indicate that despite stage 2 being a single officer review, it does give opportunities for decisions to be changed. The Council does not appear to be fettering its discretion. In other words there is evidence it is considering the individual circumstances of each case when making a decision at stage 2, rather than applying a blanket policy. We therefore consider that the Council is not at fault in departing from the Guidance by having a senior officer review rather than an appeal panel at the second stage.
37. However the opportunity to make oral representations was not available to Mr X when the Council considered his appeal. In line with Ombudsman’s Report 19008896, my view is this was fault by the Council. Mr X says he would have taken the opportunity if the Council had offered it to him. I do not know if this would have made a difference to the decision. But given he was arguing he had exceptional circumstances, and so the decision was based on discretion, there will always be some doubt about this. This uncertainty represents an injustice to Mr X.
38. I also note that the Council’s decisions at stage 2 do not routinely refer to the right to contact the Ombudsman. This is fault because the Guidance recommends that as part of the appeal process, councils make it clear there is a right of complaint to the Ombudsman.

Agreed action

39. The Council has agreed that it will take the following action within one month of the final decision on this complaint.
40. It will review its decision at stage two and offer Mr X the opportunity to speak to the second stage decision-maker by telephone or in person. He will also be able to send in further written information. Under the current COVID-19 restrictions any in-person appointment is likely to take place remotely.
41. If the appeal is upheld and the decision is based on the same circumstances that applied at the time of the original stage 2 decision on 17 December 2019, the Council should reimburse Mr X’s costs in providing home to school transport for his son since then. If any favourable decision is based on a change of circumstances, the award should be backdated to the date of the change. Any decision about transport going forward will have to take account of when the provision from Y’s school ends.
42. The Council has also agreed that within three months it will review its stage 2 response letters and include information about the right to contact the Ombudsman.

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Final decision

43. I find that the Council was at fault in failing to offer Mr X an opportunity to make oral representations at his stage 2 appeal. I am satisfied with the action the Council has agreed to take to remedy the injustice to Mr X and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman