Kent County Council (19 018 937)

Category : Education > School transport

Decision : Upheld

Decision date : 22 Oct 2020

The Ombudsman's final decision:

Summary: Mr X complains about the Council’s decision to refuse transport assistance to his two children, causing him to incur costs and causing his children distress. The Ombudsman finds no fault in the decision making process but finds the Council did not provide clear information in its policy and did not promptly inform Mr X of his right to appeal, causing injustice. The Ombudsman recommends the Council provides an apology, makes a payment and acts to prevent recurrence.

The complaint

  1. Mr X complains about the Council’s decision to refuse transport assistance to his two children, causing him to incur costs and causing his children distress.

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The Ombudsman’s role and powers

  1. 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)
  2. 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. 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.
  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

  1. I spoke to Mr X and I reviewed documents provided by Mr X and the Council. I gave Mr X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Statutory guidance on school transport

  1. The Department for Education publishes guidance on school transport that councils must follow.
  2. Councils must provide free school transport to the nearest school with places available for:
    • children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
    • children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem
    • children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk
    • children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit in certain cases.
  3. The “nearest suitable school” is the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child, and any Special Educational Needs that the child may have.
  4. It is up to each council how they decide on the “nearest” suitable school. A council may use different methods to measure the safe walking route and to decide the nearest suitable school. A council may decide the nearest suitable school in the same way it does for admission purposes (for example by straight line or shortest road route).
  5. Local authorities must publish general arrangements and policies in respect of home to school travel and transport for children of compulsory school age. This information should be clear, easy to understand and provide full information on the travel and transport arrangements. It should explain both statutory transport provision, and that provided on a discretionary basis.

Council policy on school transport

  1. The Council’s Home to School Transport Guidance 2019/20 applies in this case.
  2. I note the Council will provide free transport to children where their “nearest suitable school” is outside the statutory walking distance.
  3. It explains the nearest suitable school may not always be the school of your choice. It will not take into account preferences for types of school, for example a single-sex, sports college or grammar school.
  4. It will initially identify your nearest appropriate school via the shortest available route. Route assessments may take into account public footpaths, bridleways, other footpaths as well as recognised roads where they are available. Where the distance to a school is over 6 miles, vehicular road routes may be favoured regardless of where there may be shorter walking routes.
  5. This initial assessment will not consider whether the chosen route is of a hazardous nature as there is no expectation that children will necessarily use this route. This stage simply establishes which school is the closest school to your home.
  6. It measures all distances between children’s homes and schools using Kent County Council’s own software and not any other internet measuring device. In this way, it assesses all children consistently.
  7. There is a two stage appeal process. Stage 1 is an officer review of the original decision. At this stage it will usually only overturn a decision if there is new evidence that affects the decision; there has been a mistake or; a parent can evidence a shorter route overlooked by its mapping system. Stage 2 is an appeal to an Appeal Panel. The Panel will decide if the Council applied the policy correctly. If so, it will then look at the specific circumstances to determine whether they are sufficiently strong to enable them to use their discretion to make an exception to the policy.
  8. There is no further right of appeal. If a person remains unhappy they can complain to the Ombudsman.
  9. Parents can only apply for transport assistance for the same child again if certain conditions apply. This includes if they can demonstrate a significant and material change in circumstances since the Council decided the previous appeal.

What happened

  1. Mr X applied for transport assistance for his two children to attend School A.
  2. In June 2019 the Council refused because School A was not the nearest school. School B was nearer. I note the Council referred Mr X to its review process.
  3. Mr X challenged the Council’s decision. He said School A was the nearest when following the safest walking route. He noted a parent had argued this successfully in the past.
  4. The Council told Mr X its decision remained the same. It now used an updated and more accurate measuring tool so some people who may have got transport in the past would now perhaps not. It first looked at the nearest school. Only when it had established the nearest school did it consider the safety of the route. I note the Council did not refer Mr X to its appeals process.
  5. Mr X continued to correspond with the Council in July. He expressed surprise at the Council’s response as his neighbour had recently got free a bus pass for their child. He sent further information for the Council to consider, namely that School B requires improvement and cannot meet his children’s educational needs. And he is unable to collect his children after school due to work. Mr X also provided other documents raising queries about the safety of the walking route.
  6. The Council provided a further response in August. It explained a grammar school was parental choice. Mr X had provided evidence from a third party who found another route to School A, reducing the distance. However, it had since updated its software and found a closer route to School B. It updates its mapping information annually. It acknowledged he had to get to work but it could not provide transport assistance on that basis. I note the Council did not refer Mr X to its appeals process.
  7. Mr X asked the Council for details of the new route to School B and details of its mapping system. He also wanted general information about successful applications by neighbours.
  8. Mr X chased a response on 13 September. He added there was no safe walking route to School A and so the Council should provide a free bus pass.
  9. The Council replied on 25 September. It apologised for overlooking his previous emails. It provided a map of the shorter route to School B and said it now had a more accurate mapping system. It told Mr X he could appeal if he wished.
  10. Mr X appealed in December 2019. He said another family’s appeal had just succeeded on the basis the difference in the distances to School A and School B were within a 0.1 mile tolerance. They lived close to that family and wanted to appeal on the same basis. He enclosed a copy of their appeal presentation to support his case.
  11. The appeal hearing was due to take place on 22 January 2020. On 20 January Mr X gave the Council additional information to show there was a shorter walking route to School A.
  12. In response to enquiries the Council explained it did not have enough time to respond to Mr X before the appeal hearing. The Council says, on 22 January, prior to the hearing, the clerk asked Mr X if he wanted to adjourn to allow time to consider the Council’s response but he declined.
  13. The Council has provided a copy of the minutes of the appeal hearing. This refers to the additional information provided by Mr X. It says the presenting officer now had a response and the clerk told Mr X that if they needed an adjournment they should ask for one.
  14. The minutes show the Council explained why it did not provide transport with reference to its policy. It explained another family’s appeal was successful due to parental circumstances, not because of an error in its policy or the route. The Council had looked at the new route Mr X put forward on 20 January but had found another route to School B that was closer. Mr X also presented his grounds for appeal, with reference to the other family’s appeal. I note Mr X did not ask for an adjournment to review the new route found by the Council.
  15. The Panel considered all the information. They found the Council applied its policy correctly. A majority of 4:1 considered they should not make an exception in this case.
  16. The Council sent Mr X the written outcome of his appeal on 23 January. It explained it considers each appeal on its own merits. The other case mentioned by Mr X was upheld due to parental circumstances. The Panel found School A was not the nearest school and the Council had applied its policy correctly. It considered his circumstances and decided they were not sufficient to make an exception. There was no evidence School B could not meet his children’s needs. The decision to send them to School A was parental choice. It had assessed the routes between home and school in line with its policy. If he remained unhappy he could contact the Ombudsman.
  17. Mr X then complained to the Ombudsman. In summary he said:
    • The Council’s decision making appeared inconsistent between families.
    • The Council’s policy is contrary to the law and government guidance.
    • The IT software used by the Council to measure the distance between home and school is inadequate.
    • The Council provided new information during the appeal; that it had now measured the route to School A using the route suggested by him, but he had not seen this new measurement. It had also taken a new measurement to School B and measured from a new entrance.
    • The Appeal Panel seemed disinterested.
    • A neighbouring family were successful on appeal and so they should be too.
    • He was unhappy about the designated points the Council chooses to measure from.
    • He was unhappy the Panel asked personal information, including about the number of children and number of cars owned, as he felt this was not relevant and could result in bias.
    • The Council promotes grammar schools but does not take a grammar education into account in deciding the nearest suitable school.
    • When the Council measures home to school distance it included routes that are unsafe to walk.
    • There is no cost to the Council in providing a free bus pass as there are empty seats on the bus currently.
  18. In response to enquiries the Council said if parents contact us we advise, that although parents are not able to access our mapping software online, they can contact us by email and we will tell them which is the nearest appropriate school.
  19. When parents use the Council’s website to search for local schools there is a paragraph which explains: “the measuring systems used for school admissions and school transport are different, and take specific address point data from the National Land and Property Gazetteer when assessing home to school measurements. For more information contact the Fair Access Team on 03000 412121.”
  20. The Council also provided a copy of the appeal minutes taken on the related case, as referred by Mr X. I note three Panel members heard that case, whereas five heard Mr X’s case. Two of the Panel members sat on both cases.
  21. In comments on my draft decision the Council said its letter of 17 June 2019 referred to its review process and to its website which provides information on appeals. A parental guide provided at the point of application also referred to the review and appeals process.
  22. The Council also confirmed its latest transport guidance informed parents its maps updated annually. And it would ensure additional updates were made to inform parents it could provide transport distances upon request.

Findings

  1. It is up to the Council to decide how it will measure the nearest school, including the designated points to measure from. It does not need to consider the safety of the route at this stage and it is entitled to use its chosen mapping system. I find no fault in this regard.
  2. However, the Council should provide clear information to parents. The Council uses internal mapping software that is not available to parents. While it informs parents to contact it during the school admissions process it does not provide these contact details in its home to school transport guidance or otherwise tell parents how they can find their nearest school for transport purposes. I find this amounts to fault. Mr X would have been uncertain whether his children were eligible for school transport as a result. Other parents may also suffer uncertainty.
  3. I find the Council’s policy is otherwise in line with the law and statutory guidance.
  4. Mr X provided new information shortly before the appeal hearing and the Council provided its response during the appeal hearing. This was new information, however the evidence shows the Council offered Mr X an adjournment to give him time to consider this. I also note Mr X could have questioned this evidence during the appeal or at least highlighted any concerns to the Appeal Panel if he wished. In the circumstances, I do not find the Council at fault.
  5. Mr X says the Council has still not provided him with a copy of this new information however I have not seen any evidence he asked the Council for this and it refused. I therefore find no fault.
  6. I would expect the Appeal Panel to ask questions about a family’s circumstance to ensure it has relevant information in deciding whether to exercise discretion. I do not find fault in this regard.
  7. I have reviewed the minutes taken on a related case, as referred by Mr X. I note the Panel found the Council applied its policy correctly in that case. It did exercise discretion to allow transport but this was not due to complaints about the mapping software or an allowed tolerance in measurements. However, the Panel members, by a majority of 2:1, decided in the circumstances, to use their discretion to make an exception.
  8. On Mr X’s case, the Panel also found the Council applied its policy correctly. His children did not attend their nearest school. The Panel took account of the information available and decided whether to make an exception. I note this is a matter of judgement for each Panel member, though I would expect individual Panel members to reach a consistent decision on similar cases. The majority of Panel members decided not to make an exception on Mr X’s case. However, I note the two Panel members that sat on both cases were consistent in their views. I find no fault in the Panel’s decision making process.
  9. I acknowledge the Council provides information on its appeals process in various places. However, I consider it should also refer complainants to the appeals process at the appropriate stage of correspondence. The Council did not inform Mr X he could ask for an appeal at the relevant stage. This amounts to fault. As a result, Mr X spent longer than necessary engaged in correspondence with the Council, putting him to time and trouble.

Agreed action

  1. To remedy the injustice set out above, I recommend the Council take the following actions:
  2. Within one month:
    • Provide Mr X with a written apology for not progressing to an appeal sooner.
    • Pay Mr X £100 for time and trouble.
  3. Within three months:
    • Amend its standard letters to ensure it refers a person to the appeals process, should they remain unhappy with the review outcome.
    • Amend its home to school transport guidance to inform parents they can contact the Council to find their nearest school and warn the mapping system updates annually which could change the nearest school from year to year.
  4. The Council has accepted my recommendations.

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Final decision

  1. I find the Council at fault because it did not provide clear information in its policy and did not progress Mr X’s complaints in line with its policy. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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