Summary: Mrs B complains that the Council should not have refused her daughter, C, transport to her preferred school, because it was the nearest suitable school given her medical condition. The Ombudsman has found no fault in the way the Council decided to refuse Mrs B’s request for transport and her subsequent appeals. However, the Council failed to set out the reasons for its decisions clearly and in detail following the second stage appeal. It has agreed to remind officers of the need to provide full and clear reasons for its decisions.

The complaint

1. Mrs B complains that the Council was wrong to refuse her daughter, C, free transport to her preferred secondary school because she does not attend her catchment school or closest school. She says that C has mobility issues and this is the nearest school that can meet her needs, so the Council should provide transport. As a result of the refusal of transport, the family have to pay £300-£400 per year for a bus pass which they cannot afford.

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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 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. 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), 26A(1) and 34(3), 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 Mrs B’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its responses together with the papers from the appeal panel. I have considered the Council’s Home to School and College Transport Policy and secondary school admissions booklet and the Department for Education’s Home to school travel and transport guidance. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Transport for eligible children to the nearest suitable school

5. The Department for Education issued Home to School Travel and Transport Guidance (statutory guidance) in July 2014. (The Education Act 1996 sections 508 and 509, and part 6 of the Education and Inspections Act 2006)
6. Councils are required to make travel arrangements and provide free transport for “eligible children” of compulsory school age to attend their “nearest suitable school”. Eligible children are defined in Schedule 35B of the Education Act 1996 and include children living outside “statutory walking distance” from the school (three miles for children between eight and 16).
7. The statutory guidance explains that the nearest suitable school is:

“Taken to mean the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child, and any SEN that the child may have”.

The Council’s Home to School and College Transport Policy

8. The Council’s policy states that:

“2.1 Free transport is provided for children of statutory school age who attend the nearest catchment school or nearest available school for their age and educational needs, provided they meet the distance and age criteria below…

• 8 years of age and over and living more than 3 miles from school…

2.2 For pupils who have an Education, Health & Care Plan transport will be provided, subject to the distance criteria above, to the school named within their Plan as the nearest appropriate school that can meet their assessed needs.

Transport will not be provided to a school named within a Plan as a school of parental preference where a nearer appropriate school has been identified that can meet the child’s assessed needs, as this is the responsibility of parents and guardians.

2.3 Free transport is also provided for pupils who are unable to walk to school because of mobility problems or a severe medical condition, unless the distance to the establishment attended is such that the applicant could reasonably be expected to make their own way using a wheelchair or other suitable alternative, accompanied as necessary…

2.4 Transport may also be provided if there are associated health and safety issues related to a child’s special educational needs or disability of such severity that it means they could not reasonably be expected to make the journey to and from school even if accompanied.”

School arrangements for children with medical conditions

9. Section 6.11 of the Special educational needs and disability code of practice explains that:

“The Children and Families Act 2014 places a duty on maintained schools and academies to make arrangements to support pupils with medical conditions.

Individual healthcare plans will normally specify the type and level of support required to meet the medical needs of such pupils. Where children and young people also have SEN, their provision should be planned and delivered in a co-ordinated way with the healthcare plan. Schools are required to have regard to statutory guidance ‘Supporting pupils at school with medical conditions’.”

What happened

10. Mr and Mrs B have a daughter, C.
11. C has hypermobility in her lower and upper limbs which causes pain in her ankles and calves. Her ankles are prone to giving way, causing her to trip, resulting in swelling, difficulty, and fatigue when walking. She also suffers with anxiety. C has had physiotherapy to help strengthen her muscles and joints and was seen by a consultant in July 2019 about her condition. The consultant recommended that she continue with physiotherapy, that she try using orthotic insoles, and discharged C from her care.
12. C was due to start secondary school in September 2020 and visited local secondary schools. Her nearest (and catchment) school, School 1, is a large school with buildings on a split site. C and her mother visited the school but had concerns about its size and the amount of walking this would entail for C. Mrs B says that she and her daughter walked a day’s lessons in conjunction with school officers but says there were no reasonable adjustments that could be made to make the surfaces less uneven or reduce the distance between the sites.
13. C also had a taster day the second nearest school, School 2, which is much smaller than School 1. However, she was not keen on the school and so did not apply for School 2.
14. Mrs B therefore applied for a place for another smaller school, School 3, which was the third nearest school to their home address. School 3 was oversubscribed so she was not awarded a place but was offered a place at School 1.
15. Mrs B appealed for a place for C at School 3. She explained about C’s hypermobility, the distances between classes, the need to climb stairs frequently due to the lack of lift access to the first floor or corridors between first floor classes, uneven footpaths and the large numbers of children moving around at the same time.
16. She said that School 3 would provide a safer environment for C, with fewer trip hazards and less walking required. This would help with C’s anxiety about moving schools and being seen as different from other children. She said the pastoral care was better at School 3. She felt that School 3 would best suit C’s needs and reduce the chance of her having to miss school due to fatigue or anxiety.
17. The appeal was heard by an independent school admissions appeals panel. The panel’s task was to consider whether the admissions arrangements were lawful, correctly applied in C’s case and whether the school was oversubscribed. Having determined this, the panel had to decide whether C’s case outweighed any prejudice to the school. The panel decided that C’s case outweighed the prejudice to the school and awarded C a place.
18. Mrs B contacted the Council to explain that C had been offered a place at School 3, so they no longer needed transport to the catchment school. She asked if the Council could provide C with a pass for the bus to School 3 and explained that she would take her daughter to the drop-off point.
19. The Council declined Mrs B’s request for transport because C was not attending the nearest or catchment school but advised that she might be able to purchase a pass directly from the bus company.
20. Mrs B asked the Council to review of its decision on the basis that School 3 was the nearest that could meet C’s needs. She said that C met the age and distance criteria and provided a copy of the school admissions appeal’s panel’s decision which she said confirmed that C would be attending the nearest suitable school.
21. The reviewing officer considered that the Council had been correct in refusing transport, as C would not be attending the nearest or catchment school. She noted the school admissions appeal’s panel’s view and decision but explained that this related to school admissions and it did not follow that this meant that C was entitled to transport. Rather, the Council would instead expect School 1 or any other school) to make necessary changes to meet a child’s needs.
22. Mrs B asked the Council to escalate her appeal to the second stage of its appeal procedures – a panel of officers. She said that, in respect of the suitability of a school, the Council’s policy omitted the reference to SEN. She said the Council had not properly considered why the catchment school was unsuitable, given C’s needs. She provided a copy of the admissions appeal form and the consultant’s letter. She also provided a letter from School 1’s headteacher saying the school could have accommodated some of C’s needs but had several major concerns.
23. The appeal was held online and Mrs B joined the meeting. The meeting notes show that the Council’s transport officer and Mrs B both put forward their views. Panel members questioned Mrs B in some detail before Mrs B and the Council’s transport officer withdrew. The panel then considered Mrs B’s case but did not uphold her appeal.

My assessment

24. It is clear that Mrs B chose the school that she considers best meets C’s needs and that the admissions appeal panel were supportive of her views. I note also that the school admissions appeal panel expressed the view that School 3 “is the only school able to provide for [C]’s medical, emotional or educational needs”.
25. However, as the Council has stated, the decision of the school admissions appeals panel related to school admissions. It is not binding in respect of the provision of transport.
26. Rather it was the school transport appeal panel’s task to consider whether C should be provided with transport with regard to the Council’s Home to School and College Transport Policy.
27. C is not eligible for transport to school 3 under the statutory age and distance criteria because it is not the nearest school and it is over six miles from her home. So the school transport appeal panel had to consider whether she was entitled to transport on the grounds that she would be attending the nearest school suitable to her needs or whether there were grounds to exercise discretion to provide transport.
28. Panel members were made aware of C’s medical condition and Mrs B’s concerns and expressed some sympathy for the family’s situation. They noted that subjects at School 1 were taught in different blocks and that the school had some concerns about how to meet C’s needs. However, they also noted that schools had a duty to make arrangements to support pupils with medical conditions and they did not see why a large school could not do so.
29. They also noted that, aside from the issue of whether School 1 could meet C’s medical needs, the family had not applied for a place for C at School 2, which was also closer than School 3. Given this, they concluded that the choice of School 3 was parental preference and there were no grounds to offer transport.
30. I see no fault here in how the panel reached its decision. It was for School 1 to make arrangements to meet C’s needs, and for the panel to decide whether the evidence submitted demonstrated that C’s needs could not be met at the school. Moreover, even if the panel had considered that to be the case, Mrs B had not applied for a place at the second closest school, School 2, as C had preferred School 3. I therefore see no reason to question the panel’s decision to refuse transport on the basis that the choice of School 3 was parental preference.
31. That said, the Statutory Guidance recommends that the Council “gives a detailed written notification of the outcome” of the appeal. It did not do so in the case of the second stage appeal, but only sent a short email setting out its decision. This was fault, and the Council should remind officers of the need to provide clear and full reasons for its decisions.

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Agreed action

32. The Council has agreed to within one month of the decision date on this complaint remind officers of the need to provide clear and detailed reasons for its decisions on school transport appeals.

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Final decision

33. I have closed my investigation into Mrs B’s complaint because I have found no fault in the Council’s consideration of C’s application and appeal apart from the lack of detail in the panel’s decision.

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Investigator's decision on behalf of the Ombudsman