Summary: Mrs X complained that the Council wrongly refused to provide free home to school transport for her son, Y, because she did not put her nearest school as first preference when applying for a school place. We find the Council was at fault because its school transport policy at the time did not comply with statutory guidance. This caused Mrs X a significant injustice because she was refused free school transport for Y as a result. The Council has agreed to remedy this injustice by providing home to school transport and making a payment to her.

The complaint

1. Mrs X complains that the Council has wrongly refused to provide free home to school transport for her son, Y, because she did not put her nearest school as her first preference when applying for a school place. She says this is in breach of statutory home to school travel and transport guidance because there would not have been a place available for Y at his nearest school even if she had put this as her first preference. So, the nearest available school was the one she applied for.

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The Ombudsman’s role and powers

2. 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)
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 all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided. I have also considered the Department for Education’s home to school travel and transport guidance and the Ombudsman’s internal guidance.
5. 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

Legal and administrative background

Statutory guidance

6. In 2014 the Department for Education issued statutory guidance (‘the guidance’) to local education authorities on home to school travel and transport. Local authorities must have regard to the guidance when carrying out their duties in relation to home to school travel and transport.
7. A council must make “suitable travel arrangements” and provide free transport for “eligible children” of compulsory school age to attend their “nearest suitable school”. A child is eligible where the nearest suitable school is more than two miles from their home if the child is aged under eight and three miles if aged between eight and sixteen.
8. The guidance sets out the need for councils to take into account the availability of places when considering the nearest suitable school. It explains this will normally be when places are allocated. It says, “[the] nearest suitable school… is… taken to mean the nearest qualifying school with places available”.
9. It also says, “At the point when transport eligibility is considered, the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one. For most cases this will be during the normal school admissions round when places are allocated.”

The Council’s home to school transport policy

10. At the time Mrs X applied for free home to school transport, the Council’s school transport policy stated,

“if we could not offer you your preference nearest qualifying school then we may assist with transport to the next nearest qualifying school if you express this as a lower preference. You will be expected to have applied for and been refused a place at your nearest qualifying school”.

11. In 2019 the Council implemented a new school transport policy which applied to applications in October 2019 for entry in September 2020. It stated, “if a place cannot be offered at the nearest suitable school, when this has been expressed as a preference, then travel assistance to the next nearest suitable school will be offered. There is an expectation that parents will have applied for and been refused a place at the nearest suitable school”.

Key facts

12. Mrs X applied for a secondary school place for her son, Y, for September 2018. She put School A as first preference on the application form and School B as second preference. Y lives 3.66 miles from school B and 6.63 miles from School A. Mrs X’s older child, Z, attends School A. When applying for a school place for Z, Mrs X had put School B as first preference but Z had been offered a place at School A as there were no places available at School B. Mrs X therefore believed it was unlikely Y would be offered a place at School B if she put it as her first preference.
13. Y was offered a place at School A and Mrs X applied to the Council for free school transport. The Council refused the application because Y had not put School B, the nearest school, as his first preference. Mrs X therefore had to fund Y’s transport to school.
14. In 2019 the Council implemented a new home to school transport policy having taken legal advice following a decision issued by the Ombudsman against another Council. Under the new policy parents were not required to put their nearest school as their first preference but only as one of their preferences.
15. Mrs X asked the Council to review her application in light of this new policy. The Council explained it only applied to applications for entry in September 2020. It said the decision on Mrs X’s application was made before the Ombudsman’s decision and, at the time, the Council’s policy required that the nearest school should be a higher preference than the school allocated. It said it would not re-make eligibility decisions retrospectively because its decision was valid under its interpretation of the guidance at the time.
16. Mrs X complained to the Ombudsman.

Analysis

17. When a parent applies for school transport to a school beyond the statutory walking distance, if there are places available at a nearer suitable school the Council is entitled to refuse free school transport.
18. A council can make ‘suitable travel arrangements’ by requiring parents to apply for the nearest school during the school admissions process. This is because, without applying for a place at the nearest school, there would be no prospect of getting a place at the school. However, there is no basis in law for a council to require a parent to put the nearest school as first preference.
19. If a parent chooses to apply for transport to a school beyond the statutory walking distance that is not their nearest school, the Council should not automatically refuse transport if the parent put the nearer qualifying school as second or lower preference. It must assess whether the nearer qualifying school is suitable and whether the child would have had a real prospect of being offered a place there. If the child would have been admitted to the nearest suitable school had the parent put this as first preference, the council can legitimately refuse the application for free home to school transport to another school.
20. In this case, I find the Council had not made suitable arrangements by asking parents to put the nearest school as first preference on the school admissions application form and then refusing transport if they had not done so. This approach was fault because it took no account of whether the child would have had a real prospect of being offered a place at the nearest qualifying school and, therefore, whether that school is ‘suitable’. If there were no places available at the nearest school, it could not be a suitable school.
21. Mrs X says she did not put School B as her first choice because she was aware, from previous experience, that Y was unlikely to obtain a place as the school is in a different county from her address and oversubscribed. She argues that, even if she had put School B as first preference, Y would not have been offered a place.
22. The Council says whether Y would have been offered a place at School B had Mrs X put this as her first preference is a question for that school’s local education authority. But other children living in the same area as Mrs X without siblings at the school were offered a place.
23. Mrs X has provided evidence that, in March 2018, 15 children were offered places at School B based on distance alone. The home to school distance of the furthest child admitted was closer to the school than Y’s address. Having looked at the relevant council’s website, it is clear this position remained unchanged at the end of April 2018. The Council says that, by the end of the admissions process, a further six Buckinghamshire children had been offered places at School B and some of these children lived in the same area as Y and “other areas further from the school”. However, it goes on to say that only 15 children were allocated on distance alone. As this was already the case in April 2018, this suggests the other six places were awarded to children who had not applied on distance alone but also met other admissions criteria, such as having a sibling at the school, unlike Y.
24. I am therefore satisfied, on a balance of probabilities, that there was no real prospect of Y being offered a place at School B even if Mrs X had put it as a higher preference than School A. Mrs X was applying on distance alone and the nearest child offered a place under this criteria lived significantly closer to the school than she did. I therefore consider the Council has a duty to provide school transport for Y to School A as his “nearest suitable school” and is at fault in failing to do so to date.
25. Although I have found fault with the Council’s policy in place in 2018, it has since been revised and complies with the statutory guidance.

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Agreed action

26. In recognition of the injustice caused by the Council’s fault, it has agreed that within one month it will:
• provide home to school transport for Y;
• refund Mrs X the amount she has paid for Y’s school transport from September 2020; and
• pay Mrs X £250 in recognition of her frustration and the time and trouble she has been put to in pursuing the matter.

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Final decision

27. I find the Council was at fault in that its school transport policy in place in 2018 when Mrs X applied for a school place for her child did not comply with the statutory guidance.
28. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman