Essex County Council (20 001 298)

Category : Education > School transport

Decision : Upheld

Decision date : 01 Feb 2021

The Ombudsman's final decision:

Summary: Mrs X complained about the way the Council dealt with her application and appeal for home to school transport for her daughter. The Council was not at fault in how it reached its decision, but it did not provide her with all the information she asked for. It has apologised for this oversight. The Council has agreed to review the information it provides when home to school distance is an issue in an appeal.

The complaint

  1. Mrs X complained that in dealing with her application and appeal for school transport for her daughter to attend secondary school, the Council:
      1. failed to provide information she asked for about the home to school route which she needed for her appeal; and
      2. unfairly awarded free transport to the same school her daughter attends to other families living close to her, while refusing her application.

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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 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)
  2. 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)

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How I considered this complaint

  1. I discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law and policy on home to school transport. Mrs 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

  1. 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)
  2. 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).
  3. 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.

Council policy

  1. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport.
  2. It says unless the low income criteria are met (not relevant to this complaint), 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; or
    • the parent has rejected an offer of a place at any nearer school.
  3. Under its policy the Council measures the “shortest road route” to calculate distances to establish which is the nearest school to a child’s home address. It does so using a Geographical Information System (GIS). The policy says:
    • “The GIS measures the distance using the Ordnance Survey Highways road network data which is the base data for many online mapping and routing applications. The route measured will start at the point on the road network that is closest to the Ordnance Survey address point of the pupil’s home, and will end at the point on the road network closest to the address point of the school.”
    • Any parent who wants to find out which school the Council considers to be their nearest school for transport purposes should contact the Council by email or telephone. They should give the child’s name and address and ask what the Council considers to be the nearest school for transport purposes to that address. It gives the contact details.
    • “The measurements produced by the Council’s GIS are the definitive distance calculations that the Council will use to determine transport eligibility.”
  4. The Council has a two-stage appeals process for parents who wish to challenge a home to school transport decision.
    • Stage 1 - consideration by an officer more senior than the previous decision maker.
    • Stage 2 - a full and final decision made by an officer more senior than the officer that considered the first stage appeal.
  5. Where a parent feels unable to make their case fully and clearly in writing at the second stage of appeal, they may ask for a telephone or in person appointment with the second stage decision-maker to explain their case orally. This is in addition to their written appeal.

What happened

  1. Mrs X has a daughter, Y, who was due to transfer to secondary school in September 2020. Mrs X successfully applied for a place for Y at her catchment school, School 1, which is over three miles away from her home. School 1 was her only choice.
  2. Mrs X applied to the Council for free home to school transport. The Council rejected the application on the grounds that School 1 was not the nearest secondary school to her home. It said the nearest school was School 2, which is 0.08 miles closer.
  3. In May 2020 Mrs X appealed against the decision. She said:
    • The primary school her daughter attended was a feeder school for School 1 and was her catchment school, which she said suggested School 1 was her nearest secondary school.
    • Three other websites using GIS systems had measured School 1 as her nearest secondary school, and she enclosed the details and maps of the routes.
    • The Council was being unfair and inconsistent as other families living close to her were receiving free transport for their children to School 1.
    • If her appeal was unsuccessful she wanted the Council to provide her with “details of the GIS system you are using to determine your decision” under the Freedom of Information Act 2000.
  4. The Council did not uphold Mrs X’s appeal at stage 1. It responded as follows.
    • It set out the relevant legal qualifying conditions for free home to school transport and quoted and explained its policy on measuring the route using its GIS system.
    • It explained that the decision on whether a school was the closest under its policy did not take account of ‘catchment’ or ‘feeder’ schools and that its published information contained advice on how to find out which school the Council considers to be the nearest for transport purposes. Also, during the school application process there are messages warning parents not to assume their preferred school will result in entitlement to transport, as well as links to the transport policy.
    • It confirmed that using its own GIS system School 2 was the nearest secondary school to her home. It said it could not comment on or verify the methodology other organisations used and it must consider applications consistently in line with its policy.
    • It said it assessed each application individually, and whether other children qualified was not directly relevant to her own application.
  5. Mrs X wrote back to the Council asking to take her appeal to stage 2.
    • She felt the Council had not provided all the information she asked for under the Freedom of Information Act. She said the other websites she had used to check the routes to the two schools used similar methods to the Council’s but produced different results. All of them showed School 1 as the nearest school. She provided copies of the route maps with measurements. She said the Council had not given the name of its GIS system or provided any maps or recommended routes so she could make a fair comparison. So she asked for “this route information and relevant maps etc be provided under the Freedom of Information Act 2000”.
    • She referred to the addresses of two other families where the Council had provided transport and said the only criteria in these cases was distance. She provided details of the distances from her home to these other families’ homes and said the Council was treating her unfairly.
  6. The Council did not uphold the appeal at stage 2. Its response in mid-June 2020 was as follows.
    • It explained that for transport purposes Y’s nearest available school was School 2. It said School 2 was undersubscribed and so Y would have obtained a place there if she had applied. That meant she was not eligible for free transport to School 1.
    • It accepted the information she had provided from different online measuring tools showed School 1 as closer. But it confirmed again that the Council uses its own GIS system and repeated how that worked. It reminded her that its policy states that this system produced the “definitive distance calculations” the Council uses to make decisions on who is eligible for free transport.
    • In response to her request for information about the distances calculated in her case the Council provided a screenshot of the distances its system measured to several schools, but it did not provide maps of the routes.
    • It said it could not comment on reasons why other families may be receiving transport because of data protection rules. But it said the Council only provides transport where the child qualifies under the policy or as the result of a successful appeal, based on the individual circumstances of the case.
    • It said this was the end of the appeal process and there was no further right of appeal.
  7. On 6 July Mrs X made a further request to the Council under the Freedom of Information Act for details and maps of the routes to the two schools. The Council responded to the request on 24 July, providing copies of the route maps and measurements to Schools 1 and 2.
  8. In the meantime Mrs X complained to the Ombudsman. Once she received details of the two routes the Council had measured she understood the reasons for its decision. However she said she felt she should have received this information earlier as this would have helped her in her appeal. Everything she had seen up till then showed School 1 as nearer and she wanted to know which route the Council was using. She said she had asked for it at each stage of the appeal process but had not received it until after the process was finished.

Analysis – was there fault causing injustice?

  1. The Council has now provided details of the routes and distance calculations to School 1 and School 2. This shows that according to its GIS system School 2 is nearer to Mrs X’s home. The Council is not at fault in relying on the measurement system it refers to in its policy. It has to apply the same system to all applicants and it provides information to parents about how to find out which is the nearest school for transport purposes.
  2. The Council has decided that as Mrs X did not apply for a place for Y at School 2 when there would have been a place available, Y is not attending her nearest available suitable school and so does not qualify for free home to school transport. In reaching this decision the Council has followed the law and its policy and it has explained the reasons for its decision in detail at each stage of the appeal. I do not find fault in the way the Council reached its decision and so I cannot question the decision itself.
  3. Mrs X complained that the Council did not provide her with the information she asked for to help her understand the decision and make her appeal until it was too late. She says she asked for details and maps of the route at both stages of the appeal. However the evidence shows that in her first stage appeal Mrs X did not specifically ask for this information. She asked for details of the GIS system it used, which the Council then provided in its stage 1 response. Mrs X may have intended her request to cover the map and details of the route. But as this was not explicitly stated I cannot say the Council ignored her request.
  4. Mrs X clearly asked for route maps in her second stage appeal and the Council failed to provide them. In response to our enquiries the Council said this was an unintentional oversight. It has apologised for this and says it has reminded the officer concerned of the need to address all points raised in an appeal and provide all the information asked for where it is available. If Mrs X had received the information earlier she says she would have understood the decision and might not have pursued her appeal further. In my view it would help parents if the Council provided route maps and details as well as the overall distance measurement when a dispute about distance is a key point in their appeal.
  5. In response to our enquiries the Council also checked its records and found one child in Y’s year group who lives close to her and receives home to school transport to School 1. It says this is because according to its GIS system the home to school distance was the same for this child to both schools. In those circumstances it decided it was appropriate to award transport. In Mrs X’s case there is only a small difference in the distance to each school, but they are not equidistant. So the circumstances are different and I could not say the Council was acting in an inconsistent or unfair way in Mrs X’s case.
  6. I note that the Council’s decisions at stage 2 do not routinely refer to the right to contact the Ombudsman. Government guidance ‘Home-to-school travel and transport statutory guidance’ recommends that as part of the appeal process councils make it clear there is a right of complaint to the Ombudsman. However I do not need to recommend any action on this point as the Council is already addressing it in response to recommendations on another complaint.

Agreed action

  1. The Council has agreed that within one month of the decision on this complaint it will:
    • write to Mrs X directly to apologise for its oversight in failing to send her the route maps as requested; and
    • review its processes and consider providing appellants with details and maps of the routes in question, as well as the overall distance measurements, as a matter of course where the home to school distance is an issue in dispute in the appeal. Unless there is good reason not to provide this information I recommend it should do so. The Council should tell the Ombudsman the outcome of this review.

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Final decision

  1. I find that the Council was not at fault in how it reached its decision on Mrs X’s application and appeal for home to school transport. But it did not provide all the information she needed to understand the decision. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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