Summary: the complainant complained the Council wrongly refused her application for home to school transport and refused to exercise discretion to allow her to appeal. The Council says it applied its home to school transport policy properly and did not offer an appeal because the appeal arrived after its deadline. We find the Council acted with fault and recommend a remedy.

The complaint

1. The complainant whom I shall refer to as Mrs X complains the Council failed to properly consider her application for home to school transport for her son Y.
2. Mrs X says this resulted in the family paying the costs of transport to Y’s school causing distress. Mrs X wants the Council to review its decision and grant free home to school transport to Y.

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The Ombudsman’s role and powers

3. 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)
4. If 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

5. In considering this complaint I have:
• Spoken with Mrs X and read the information presented with her complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched relevant law, guidance and policy including reports and decisions by the Ombudsman on school transport complaints;
• Shared with Mrs X and the Council a draft decision so they had an opportunity to comment on my view. I have considered their comments before making this final decision.

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What I found

6. The Education Act 1996 imposes a duty on councils to make home to school travel arrangements as they consider necessary for ‘eligible children’ to attend their nearest ‘qualifying school’. This is the nearest school with places available which provides suitable education. Councils should have a school transport policy setting out how it will fulfil these duties.
7. The Department for Education (“DfE”) has published the document ‘Home to school travel and transport guidance which is Statutory Guidance for local authorities’ (“the Guidance”).
8. The Guidance says the DfE used to leave local authorities to decide their own appeals procedure. However, to ensure a consistent approach across local authorities, it now recommends a two-stage procedure for appeals. It says local authorities should publish their appeals procedure on their website. It should set out a clear and transparent two stage procedure.
9. The Council’s home to school transport policy (“the school transport policy”) says it will provide free transport from home to the nearest school if a pupil qualifies.
10. The policy says applicants may appeal to an appeal panel if unhappy with the decision made by the Council provided, they present the appeal within 20 days of the decision.

What happened

11. Mrs X wanted her son Y to attend School 1. Mrs X contacted School 1 because it administers its own admissions procedure to check if it had places available for Y. Mrs X says School 1 told her it did not have places available. Mrs X accepted what School 1’s officer told her. Records show School 1 had offered places above its published admissions number of 186 but Mrs X did not know that.
12. Mrs X successfully applied for a school further away from her home, School 2. With School 2 being further from home Mrs X applied to the Council for home to school transport believing School 2 to be the nearest suitable school to her home with places available.
13. The Council refused the application. In response to my enquiries the Council says School 1 is the closest school to Mrs X that had places available in March 2020. It says information collected from School 1 show it had agreed to offer 193 places for the year and in January, May and July 2020 School 1 had only allocated 188 places. Therefore, the Council says had Mrs X applied for a place it is likely School 1 would have offered Y a place. The Council says School 2 is not the school closest to her with available places and so under the Council’s home to school transport policy the Council refused free home to school transport.
14. In its decision letter sent to Mrs X, the Council says, in line with Department for Education guidance, that Mrs X may appeal the decision but must do so within 20 days of the decision. That deadline expired on 19 July 2020. Mrs X appealed on 3 August 2020. The Council says Mrs X did not put forward any detailed reasons for not meeting the deadline and so it could not offer her an appeal as an exception to the usual rule.
15. When we put the complaint to the Council it told us in error that Mrs X still had the appeal available to her. The Council says this was an administrative error on its part.
16. Mrs X says she applied to the school with a suitable place nearest her home and therefore met the criteria set out in the Council’s home to school transport policy. The refusal by the Council of free home to school transport has resulted in her incurring the expense of Y travelling to school while the family is living in reduced circumstances because of the Covid-19 pandemic.
17. The Council says if there had been no places available at School1, Y would meet the criteria for home to school transport to School 2.

Analysis – was there fault causing injustice?

18. My role is to consider if the Council properly considered the application for home to school transport not whether home to school transport should be given. If I find the Council at fault, I must consider the impact of that fault and what the Council should do to put that right.
19. Mrs X cannot be expected to delve into the detail of the school admissions procedure. Mrs X contacted School 1 to see if it had places available and School 1 told her it did not. School 1 reported to the Council it had awarded 188 places. That is above the published admissions number of 186. We cannot expect Mrs X to know School 1 had decided it could offer more than the published admissions number or that it had any surplus places available if it did not tell her.
20. Mrs X believed she applied for the nearest suitable school with places available, School 2 and gained a place for Y. Mrs X acted on the information given her by School 1’s admissions team. She had no reason to check this with the Council.
21. When Mrs X presented a late appeal, the Council refused to consider it because it says she had not given any reasons for the late appeal. Given the confusion over School 1’s figures and the dispute over what it told the Council compared with what it told Mrs X, the Council could have exercised some discretion. The Council could have allowed the panel to consider if this presented exceptional circumstances for providing free home to school transport.
22. Mrs X did apply out of time for her appeal. Mrs X could have expanded on why she did not appeal within the timeframe. However, I find the Council did not properly consider exercising some discretion in this case given there was a conflict between what Mrs X had been told by School 1, the Council’s records of the number of pupils at School 1 and the published admissions number. That number indicates when School 1 is full. Mrs X has been denied the opportunity to put her concerns to the panel. I find Mrs X did not appeal significantly later than the 20-day expiry period.

Recommended and agreed action

23. To address the lack of an appeal I recommend the Council within four weeks of my final decision writes to Mrs X inviting her to make an appeal within four weeks of that letter and to arrange an appeal panel within one month of receiving that appeal. I further recommend that if free transport is given the Council contributes to any school travel costs incurred during the autumn 2020 term.

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Final decision

In completing my investigation, I find the Council acted with fault for which we have recommended a remedy.

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Investigator's decision on behalf of the Ombudsman