Summary: The Ombudsman cannot intervene in an appeal panel’s decision not to award school transport as there was no fault in the way this decision was made.

The complaint

1. Ms X complains about the Council and an appeal panel’s decision not to award school transport support to her son. Ms X also complains that:
• The Council delayed in assessing a walking route to the bus pick up point
• When the Council put in place a bespoke bus-stop the drivers were not consistent in using it
• Her son would have been entitled to free transport to his nearest school but the Council will not contribute to the cost of getting to the parental choice of school even though there is no extra cost to the Council
• The Council failed to take account of exceptional circumstances of her son and the family
• There is inconsistency about how parental preference for school transport is treated depending on where a pupil lives as in some areas parents have a choice of two schools.

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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 or appeal panel’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 have considered information provided by Ms X and the Council including the transport application, decision letters and the Council’s home to school transport policy.
5. I have considered relevant law and guidance:
• The Education Act 1996 (‘The Act’)
• Home to School Travel and Transport statutory guidance (‘The Guidance’)
6. I have also spoken to Ms X by telephone.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

What I found

Law and statutory guidance

8. Sections 508B and 508C of the Education Act 1996 require local authorities to ensure that suitable transport arrangements are made, where necessary, to facilitate a child’s attendance at school.
9. The categories of children who are ‘eligible’ under s.508B are:
• Those who live outside the statutory walking distance to their nearest suitable school which has places available
• Those who have additional needs or a disability that prevents them from being able to walk to school
• Those where there is no safe walking route to the nearest suitable school.
10. There are also additional entitlements for children entitled to free school meals or whose parents receive working tax credit.
11. Section 508C of the Act provides Councils with discretionary powers to go beyond their statutory duties and provide transport or provide full or part funding of travel expenses to children who are not entitled to free transport under s.508B.
12. The statutory guidance says ‘it is very much for the individual local authority to decide whether and how to apply this discretion as they are best placed to determine local needs and circumstances’. The guidance acknowledges Councils will have to balance requests for support against their budget priorities.
13. The guidance recommends a two-stage appeal process:
• A review by a senior officer
• A review by an independent appeal panel.

Council’s policy

14. The Council’s policy says it provides help to secondary pupils who attend either:
• The nearest secondary school to their home address

or

• The nearest secondary school agreed by the Council to serve their home address (that is resident in the designated transport area for the school

and

• Whose home to school walking distance is three miles or more.

Factual background

15. Ms X lives in a rural area and her son is eligible for free transport to his nearest school on the grounds of distance.
16. Ms X’s son does not attend his nearest school as Ms X chose for him to attend a further away school.
17. Ms X had previously applied and appealed for transport for another child and so expected her application would be refused at first instance on the grounds that her son was not attending his nearest school. Ms X asked for her case to go directly to the Senior Officer Review (SOR) stage (first stage appeal). The SOR is a panel of senior managers. The Council agreed.
18. Ms X says a pass for the school bus that serves their nearest designated school costs a similar amount to a bus pass for her son’s choice of school. Ms X wanted the Council to contribute the same amount it would have to pay if he attended the nearest school. Ms X put forward financial and family reasons why the Council should make an exception for her son.
19. At the time of the application Ms X raised concerns that the walking route to the stop to access buses to any school was unsafe and if her son had attended the nearest suitable school the Council would have had to provide a taxi door to door.
20. The Council said as Ms X had not chosen the nearest suitable school, they were not eligible for support, and transport to a further away school became the family’s responsibility. The Council told me there was therefore no requirement for it to assess the walking route to determine whether assistance to the nearest school was required. There were also no other children that needed to use this route.
21. The Council says the SOR panel did want information about the route and deferred a decision until the route was assessed so that it could consider all Ms X’s arguments.
22. The Council says it received Ms X’s request for SOR on 24 June 2019 and the assessment of the route was conducted on 4 July so there was no delay.
23. The Council deemed the route from the family home to the bus-stop was unsafe to walk even if accompanied. The Council considered options to provide a safe route but decided these were prohibitively expensive.
24. The Council sent Ms X its decision following the SOR on 2 August. It explained it had considered the request for discretionary transport and considered whether the circumstances were so exceptional as to merit departing from the usual policy that families are responsible for transport costs when they choose not to attend the nearest suitable school. It had decided not to provide transport as there were closer schools to the family home.
25. Ms X appealed to stage two, a panel of Members. The hearing was arranged for October 2019. In August 2019, before the stage two hearing, the Council liaised with the bus company Ms X’s son needed to use to go to his preferred school. The bus company said it would collect and drop Ms X’s son from outside his home.
26. On 18 October 2019, the panel of Members also declined transport assistance. The decision letter shows the panel considered all the information provided by the family about the family’s particular circumstances and the reasons why Ms X considered the further away school was more suitable. The panel found insufficient extenuating circumstances to depart from the Council’s usual policy. The decision letter said the Panel had noted a bespoke bus-stop had been created at the family home address. The Panel said this should continue for both school journeys and it had requested the Transport team ensure this arrangement continued.
27. Ms X told me the drivers were not consistent at remembering to stop at their home. In response to my enquiries the Council told me that it had negotiated with the bus company that took Ms X’s son to his preferred school and the contractor agreed to stop outside Ms X’s home and offered to place a ’flag’ at the pick-up point. The Council says Ms X declined the ‘flag’. Ms X disputes this. The Council says the bus company is not contractually bound to stop at Ms X’s home and as such the Council could not ‘insist’, but it has reminded the bus company of the agreement to do so.
28. Ms X told me pupils in a nearby village could get free transport to two schools and she considered parents in different areas were not being given the same opportunity to choose a school and still receive transport, which she felt was unfair. The Council told me that this only applies where a student lives near to the County border and prefers to attend a school in the neighbouring authority and that school is closer to their home than the nearest in-County school. The Council says in this scenario, provided the out of area school is also more than three miles from the pupil’s home, they would be eligible to transport assistance to that school as well as the nearest suitable in-County school.

Analysis

29. Ms X was aware that her son would not be entitled to free home to school transport under s.508B Education Act, and the Council’s policy, if he did not attend the nearest suitable school. Ms X however considered that there were particular reasons why her son should attend a further away school. Ms X made detailed representations about this and also provided financial information about the family income and pointed out to the Council that the financial outlay to the Council of choosing a further away school was comparable to the cost if they had chosen the nearest school.
30. The Council’s policy was only to fund transport to the nearest suitable school. If a pupil attended a school that was not the nearest, then its view was that the family then became financially responsible for transport. This policy is in line with the Act and the Guidance.
31. The Council had discretion to pay all or some of the transport costs under s.508C if it considered it necessary to facilitate attendance at school.
32. Section 34(3) of the Local Government Act 1974 says that the Ombudsman does not have jurisdiction to question the merits of decisions taken without maladministration. This means that if there is no fault in the process, then we cannot question the judgment a Council or appeal panel reaches about the evidence it hears, even if we may have reached a different decision on the same facts.
33. There is no evidence of fault in the way the Council and appeal panel made the decision to decline transport. The documents show Ms X’s arguments were considered but the Council and panel were not persuaded that Ms X’s son could not attend the nearest suitable school or that the family’s circumstances were so exceptional that it should depart from the usual policy. This was a decision the Council and appeal panel were entitled to reach.
34. The Council has explained why parents who live very close to the border may have two designated schools for transport when the out of area school is nearer to the family home than the in-county one. There is nothing in the Act or Code which prevents an area having more than one designated or qualifying school for school transport purposes.
35. While the stage two appeal panel declined to provide transport assistance, in its decision letter it said the bespoke bus-stop at the family address should continue for both the school journeys and it asked the Council to ensure this arrangement continued.
36. The Council told me that it has asked the bus company to stop at Ms X’s house but has no authority to ‘insist’ as it has not contracted the school transport on Ms X’s son’s behalf. The Council told me in response to my draft decision the appeal panel did not mention its views about the temporary bus-stop during the hearing so it could not explain that it had no power to ensure the bus company used the stop given it was not responsible for contracting Ms X’s son’s transport.
37. Ms X told me in response to my draft decision that she is concerned the arrangement relies on ‘goodwill’ and that the information the Council could not insist on the bus stopping was not available to the panel. Ms X considers this merits a fresh hearing. Ms X also has safety concerns that it is not obvious to other drivers the bus will be stopping outside their home and this could lead to an accident.
38. The Council told me it remains willing to provide a temporary bus-stop sign at the family’s address and has ordered one. The Council requests that Ms X confirm in writing exactly where she would like the temporary bus stop to be erected.
39. The existence of the bespoke bus-stop was a matter the appeal panel considered and it is possible the panel may have reached a different decision if it had known that the Council had no power to insist school buses use the stop. As the panel did not raise questions on this at the hearing it was not fault that the Council did not explain the position.
40. I am not persuaded a fresh appeal is merited at this point. The Council intervened with the bus company when problems arose. Although the responsibility for travel arrangements lay with the family, the Council took the same action it would have had it arranged the transport itself. There is insufficient evidence the arrangement has been unreliable since the Council’s intervention. The use of a temporary bus-stop sign should also assist in prompting drivers to stop as well as alerting other drivers of the risks at this location.
41. Were the situation to change such that the bus was not reliably stopping, I consider it would be reasonable at that point to ask an appeal panel to review the matter to see whether this fact would alter its decision.

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Investigator's decision on behalf of the Ombudsman