Essex County Council (20 002 063)

Category : Education > School transport

Decision : Not upheld

Decision date : 18 Feb 2021

The Ombudsman's final decision:

Summary: Miss X complained about the Council’s decision on her application and appeal for home to school transport for her son. We do not find fault with the way the Council made its decision, but the Council has accepted our suggestion for some further signposting about the right of appeal.

The complaint

  1. Miss X complained that the Council failed to consider her appeal for help with home to school transport for her son properly. Although the Council made a short-term discretionary award, she says it did not take proper account of her walking difficulties, and did not offer her a chance to put her case in person or by telephone as outlined in the Council’s policy.
  2. As a result she said she was struggling to get her son to school.

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The Ombudsman’s role and powers

  1. 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’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)
  2. 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. I considered the information the Council provided in response to my enquiries. I considered relevant law, policy and guidance on home to school transport. 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 are 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;
    • live within walking distance of the school but who cannot to walk to school because of their special educational needs, disability or mobility problem;
    • receive free school meals, or whose parents receive the maximum Working Tax Credit, where certain other conditions are met.
  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.

Council policy

  1. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport under the legal criteria.
  2. 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.

Appeals process

  1. The Council has a two-stage transport appeals system under its policy 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 says
    • "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, of primary school age. She moved with her partner and son to the Council’s area in January 2020. She obtained a place for Y at the only school with places available, School 1, which is less than two miles from their home.
  2. Miss X has a medical condition which has resulted in nerve damage to her hands and feet. She applied to the Council for help with home to school transport as she said she had difficulty walking and could not take Y to school. The Council rejected her application as it said School 1 was under two miles from home. The letter contained a link to the Council’s website for more information about school transport law and the Council’s policy.
  3. In mid-March 2020 Miss X appealed against the decision. She said because of her condition the distance was too far to walk, the journey took two buses and she could not afford the fares. She said she could provide medical evidence if it would help. Also she said her partner was looking for work and could not take Y to school.
  4. In its stage 1 response at the end of March the Council did not uphold her appeal. It explained its decision as follows.
    • It had considered the information provided but found that Y was not entitled to transport under the law or the Council’s policy as his school was less than two miles from home.
    • The Council has discretion to provide help with transport outside of the law and its usual policy in exceptional circumstances. As parents have a legal responsibility to get their children to and from school, this would only be where the Council is satisfied the parent has provided enough evidence to demonstrate why they, for social, medical, financial or personal reasons cannot undertake this duty. If it agreed to provide support for those reasons it would be limited to a maximum of three school terms.
  5. Miss X asked to take her appeal to stage 2 in mid-May 2020. She explained her situation had changed as her partner had died and she was now a single parent. She also said she was on medication for her nerve pain and it was very difficult for her to walk long distances.
  6. The Council replied offering condolences and asking Miss X to provide detailed medical evidence from a GP or consultant explaining her medical condition and how it impacts on her ability to walk or drive her son to and from school. It also wanted to know how long she was likely to be affected. The Council said it would put the appeal on hold until she either provided the medical evidence or confirmed she wished the Council to consider the appeal without it.
  7. A few days later Miss X provided a copy of letter from her GP confirming the medication she was taking for nerve pain.
  8. The Council replied saying the evidence was not detailed enough to show what it had asked for in the previous email. It asked her to confirm whether she would be providing further medical evidence or whether she wished the Council to decide the appeal on the basis of the evidence she had provided so far. It gave her a deadline for her response.
  9. After further prompting from the Council, giving her another deadline, Miss X provided a copy of another letter from her GP. This confirmed she was taking medication for “nerve pain/damage to fingers and feet” and said she could not walk very far. Miss X said this was “my last evidence for my appeal if you can go through with it now please”.
  10. In the stage 2 appeal response the Council said it had considered the medical evidence provided but this did not clarify that she could not walk the distance to Y’s school. It said on its own her evidence was not sufficient to award transport. However the Council said in the light of her significant change of circumstances with the loss of her partner it would offer her a discretionary award until Christmas 2020, in the form of a fuel allowance. It said it was offering this to help her through a difficult time while she adjusted to changes in the family situation and it did not mean Y would be entitled to transport at the end of the period. It said it was satisfied it had made the original decision correctly, this was the end of the two-stage appeal process and there was no further right of appeal.
  11. Miss X replied the following day asking for a further appeal as she said she does not drive and had no way of getting Y to school.
  12. The Council replied saying she could use the allowance for public transport if she wished. It confirmed this was the end of the process and invited her to provide details so it could make the award.
  13. At the end of June 2020 Miss X wrote to the Council with a letter from her doctor which she said showed why she could not walk her child to and from school every day and wanted to appeal again. The letter referred to her diagnosis and said she was still suffering with pain, tingling and numbness in her feet and hands. As a result she was “unable to walk any distance”.
  14. The Council replied to Miss X noting it had decided the second stage appeal on the basis of the evidence provided previously, as she had instructed. But nevertheless it said it had reviewed the further information she provided but this did not alter the original appeal decision. It confirmed the discretionary offer was still open to her if she wished to take it up.
  15. Miss X asked the Council how she could take the appeal further. The Council replied that she had reached the end of the appeal process but she could contact the Ombudsman.
  16. Since the Council responded to our enquiries on this complaint, Miss X has moved and says she no longer needs help with transport.

Analysis

  1. I have not seen evidence of fault in the way the Council reached its decisions on Miss X’s application and appeal for home to school transport. It explained why her son did not qualify under the law but it used its discretion to offer her an allowance for transport because of the change in her personal circumstances. When she said she did not drive, the Council confirmed she could use the allowance for public transport.
  2. The Council considered that the medical evidence Miss X provided was not sufficient to show she could not take her son to school. Miss X told the Ombudsman her condition meant she could not walk to and from the bus-stop and so could not accompany Y on the journey. She said this meant the Council had not provided an offer of suitable transport. However there is no evidence she put this point to the Council. After the appeal process was finished Miss X provided further medical evidence saying she was “unable to walk any distance” and could not walk to the school. But the letter did not specify a distance and Miss X did not say she would not be able to walk as far as the bus- stop. The Council did not consider this changed the decision and it was entitled to take this view based on the evidence provided.
  3. Regarding the appeal process, Miss X says she did not know she could ask for a meeting or a telephone call at stage 2. The Council’s view is that there is enough information and signposting about the appeal system at all stages of the application and appeal process to enable parents to understand what their rights are. It says if Miss X had asked for or indicated she needed a call or meeting, it would have offered her an appointment.
  4. Looking at the information the Council provides, there is a link to the school transport policy on the Council’s website in a prominent position at the point where parents make an application for transport. The policy contains details of the appeals process. The decision letter also contains a link to the policy. The stage 1 appeal response states it is part of a two-stage process, which would alert the parent that there is a further stage. But I consider it would be good practice to provide a link to the policy in the stage 1 appeal response letter as well.
  5. The Ombudsman’s guidance note ‘The Principles of Good Administrative Practice’ recommends “providing clear and timely information on how and when to appeal or complain”. When someone first applies for transport they are not likely to be thinking about appeals. It is appropriate to point them in the direction of the policy in the initial decision letter, as the Council does. In my view it would also be timely to do so at the end of the first stage appeal when they might be considering making an appeal to the next stage. This would enable people to see the option for making representations in person at the appropriate stage in the process.
  6. I do not consider the lack of signposting at the end of the first stage amounts to fault causing injustice, as Miss X had the opportunity to look at the policy including the appeals process when she received the decision on her application. However I suggested as a matter of good practice that the Council include a link to the home to school transport policy in its stage 1 appeal response letter. The Council has agreed to this suggestion.
  7. 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 ‘Home-to-school travel and transport statutory 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.

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Final decision

  1. I have not found fault in the way the Council decided the transport application and appeal. The Council has accepted my suggestion to provide extra information at the end of the first stage of the appeals process as a matter of good administrative practice. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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