Essex County Council (20 001 987)

Category : Education > School transport

Decision : Upheld

Decision date : 04 Feb 2021

The Ombudsman's final decision:

Summary: Miss X complained about the way the Council dealt with her application and appeal for home to school transport for her son and that the Council’s appeals system did not follow national guidance. We find that the appeal system was flawed at the time the Council considered Miss X’s appeal, but this is unlikely to have affected the decision. There were gaps in the information provided to Miss X that would have helped her in her appeal. The Council has agreed to review the information it provides.

The complaint

  1. Miss X complained that:
      1. the Council failed to consider her application and appeal for home to school transport for her son properly; and that
      2. the Council's appeals system does not follow national guidance as it does not provide for an independent appeal panel.
  2. As a result she says she has to pay for her son’s transport to and from school.

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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 Miss X and considered:
    • the information she provided
    • the information the Council provided in response to my enquiries
    • relevant law and policy on home to school transport
    • the Ombudsman’s published report on another complaint, reference 19008896.
  2. Miss 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);
    • live within walking distance of the school but who cannot to walk to school because the route is unsafe;
    • 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.
  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.
  4. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

Statutory guidance on appeals

  1. 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.
  2. 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.
  3. 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.
  4. 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

  1. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport under the legal criteria.
  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. 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.

Council’s appeals process

  1. 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.
  2. 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.
  3. 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

  1. Miss X has a son, Y, who was due to transfer to secondary school in September 2019. Miss X successfully applied for a place for him at School 1. She then applied for free home to school transport.
  2. At the end of May 2019 the Council rejected her application for transport, saying Y was not attending his nearest available school. The letter referred her to the information on the Council website about school transport.
  3. In early June Miss X asked the Council which school it considered was the nearest secondary school to her home. After receiving the Council’s reply that the nearest secondary school was School 2, she called the Council to find out how to appeal. She then appealed by email as follows.
    • She asked for details of the method the Council uses to calculate walking distances and how it decided the travel distance in her case.
    • She said although the Council’s policy was to use its own system for calculating distances she did not know how it did this and so had made her own enquiries using online measuring tools. She said this showed Schools 1 and 2 were exactly the same distance from her home address on foot. Also she said School 1 was her catchment school.
    • She complained about the lack of information in the decision letter about the appeals process.
  4. The Council responded to Miss X’s appeal at stage 1.
    • It said Y did not meet the qualifying conditions because he was not attending his nearest school. School 2 was the nearest school and she had not applied for a place for Y there. It was not relevant that School 1 was the catchment school as this did not give entitlement under the law or the Council’s policy.
    • It said it could not send her the GIS system the Council uses as it was not publicly available, but it confirmed the distances it produced. It acknowledged that Miss X had made her own checks using publicly available websites but said the Council made it clear in its policy it used its own method and it had to use the same method for all applicants.
    • It noted 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 admission 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.
    • Regarding information about the appeals process, it said this was available on the Council’s website and the link had been provided in the initial decision letter.
  5. Miss X was not satisfied with the response and appealed to the next stage. She still disputed the distances the Council was using.
  6. In its stage 2 response in July 2019, the Council:
    • repeated the qualifying conditions
    • referred to wording on its website and links to the policy explaining why choosing the catchment school does not guarantee entitlement to transport
    • confirmed it was satisfied the decision to refuse transport for Y was correct and had been made properly under the law and Council policy
    • finished by saying this was the end of the appeals process.
  7. After the end of the appeal Miss X made a Freedom of Information request to the Council asking for information about the routes to School 1 and School 2. The Council provided her with maps and measurements of the two routes.
  8. Miss X complained to the Ombudsman. She said she was concerned that the Council’s measuring system was not transparent and had not taken account of the safety of the route. She said she had only received information about the routes the Council had measured after the appeal was over and felt it should have been provided earlier. She also complained that the Council’s second stage appeal was not in line with Government guidance as there was no independent appeal panel.

Analysis – was there fault causing injustice?

The transport decision

  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 Miss X’s home. Miss X did not apply for a place for Y at School 2. 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 applications and it provides information to parents about how to find out which is the nearest school for transport purposes.
  2. The question of the safety of the walking route is not relevant where the Council has decided the child is not attending the nearest suitable school measured by the shortest road route. It is only relevant to deciding a) whether the distance to the nearest school is over the two or three mile qualifying distance or b) whether, even if the route is shorter than that, it is unsafe.
  3. The Council decided that as Y is not attending his nearest available suitable school he 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. Miss X did not argue in her appeal that the Council should use its discretion to award transport outside the policy because of her particular circumstances. I do not consider the Council was at fault in the way it reached its decision and so I cannot question the decision itself.

Information provided

  1. However I do have some concerns about gaps in the information the Council provided to Miss X. In my view the Council should have told her which school it had decided was the nearest available school in the decision on her transport application. Also, although she did not explicitly ask for details of the route maps to Schools 1 and 2 until after the appeal process was finished, but rather asked for information about the measurement system the Council used, it would have been helpful to her to have this information. It would have helped her better understand the reasons for the Council’s decision. This would assist the Council as well as parents who wish to appeal. I make some recommendations on this issue below.
  2. I also note that the Council’s decisions at stage 2 do not routinely refer to the right to contact the Ombudsman at the end of the appeals process as recommended in the Guidance. 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.

School transport appeals process

  1. 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.
  2. 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.
  3. At the time of Miss 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.
  4. 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.
  5. 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.
  6. 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.
  7. In an investigation on another complaint against this Council the Ombudsman 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. We also asked it to provide details of cases where it had overturned decisions at stage two and allowed the parents’ appeals. This was to try to establish if it appeared the alternative stage 2 appeal system it had adopted was operating fairly.
  8. 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.
  9. The Ombudsman has considered the Council’s appeals process in a number of investigations since then and did not find fault.
  10. 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 22 above) allowing appellants to ask for the chance to explain their case by telephone or in person at stage 2.
  11. The Ombudsman reviewed the information and explanations the Council provided again. He considers the Council has provided sufficiently clear and cogent reasons for departing from the Guidance. We also considered the information provided about successful stage 2 appeals. Although it was a small sample, the Ombudsman was satisfied there was 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.
  12. However the opportunity to make oral representations was not available to Miss X when the Council considered her appeal. In line with Ombudsman’s Report 19008896, I find this was fault by the Council.
  13. But I have not seen evidence that this is likely to have affected the Council’s appeal decision in this case. The Council’s decision was in line with its policy and Miss X did not present any special circumstances that the Council could have taken into account. Nor has she indicated that there were additional arguments or evidence she would have presented had she had the opportunity to do so in person. So I do not consider lack of opportunity to make oral representations caused significant injustice to Miss X in this case.

Agreed action

  1. The Council has agreed that within one month of the decision on this complaint it will review its processes and tell the Ombudsman the outcome of its consideration of the following two points.
      1. Where the decision refusing transport is based on the child not attending the nearest suitable school, the decision letter should say which the nearest school is.
      2. Where the home to school distance is an issue in dispute in an appeal it should consider providing appellants with details and maps of the routes in question, as well as the overall distance measurements, as a matter of course. Unless there is good reason not to provide this information I recommend it should do so.

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Final decision

  1. I have found there was some fault in the appeals process but this did not cause significant injustice to Miss X as I have not seen evidence of fault in the way the Council reached its decision. The Council has addressed this fault. There were gaps in the information provided to Miss X. I am satisfied with the action the Council has agreed to take to put this right and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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