Summary: there is no fault in relation to the Council’s consideration of Mr A’s appeal for home to school transport on the grounds of safety of the identified route

The complaint

1. The complainant, whom I shall refer to as Mr A, says the Council failed to properly consider his appeal against the decision to refuse to provide free home to school transport for his daughter to attend secondary school. Specifically, Mr A says the panel failed to:

1. properly consider the grounds he put forward regarding the safety of the identified walking route;
2. properly consider his daughter’s medical need for transport; and
3. ensure consistency of decision making with other appeals in terms of both safety and health considerations. Mr A says other appellants using the same walking route were provided with transport on the grounds of safety and that other panels upheld appeals on the ground of physical health conditions when his appeal on the grounds of mental health needs was not upheld.

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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. (Local Government Act 1974, section 34(3), as amended). 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 discussed the complaint with Mr A and considered the written information he provided with his complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. Mr A 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

What should have happened

6. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances.
7. Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
8. The relevant ‘qualifying school’ is the nearest school with places available that provides ‘education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have’.
9. ‘Qualifying schools’ include community, foundation or voluntary schools and community or foundation special schools.
10. ‘Eligible children’ are defined in Schedule 35B of the Act and include:
• children living outside ‘statutory walking distance’ from the school (three miles for children between eight and 16); and
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk.
11. The route the Council has to consider is the ‘the shortest route along which a child, accompanied as necessary, may walk safely’. This may include footpaths and other pathways as long as they are safe. Councils may set their own police is which determine the start and end points for measurements and the method it uses to calculate the distance eg a GIS mapping system. Statutory guidance says that councils should take a range of risks into account when considering the issue of safety including, for example, the presence of canals, rivers, ditches as well as traffic speed and field of vision.
12. In deciding whether a child can reasonably be expected to walk to school, (whether the issue is safety or disability), the question is whether they can do so if accompanied, and whether it is reasonable to expect a parent to accompany them. There may be good reason, such as a parent’s disability, why they should not be expected to. The Statutory Guidance says “when considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied…The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”
13. The Council has a School Travel Policy. This provides details of the statutory requirements outlined above. It confirms parents may challenge a decision not to provide transport on grounds of eligibility and safety of the identified route, exceptional circumstances etc. The finer details of the appeals process are available on the Council’s website. They confirm there is a two stage appeals process: a senior officer will provide a response at stage 1 of the procedure and at stage 2 either a Travel Officer Panel or an Education Transport Appeals Committee will consider the matter further. The policy says that appeals other than those on the grounds of safety are usually handled by a Travel Officer Panel.

What happened

14. The Council refused Mr A’s request for home to school transport for his daughter, X, to secondary school. Whilst X was attending her nearest secondary school the home to school distance was measured at less than three miles so the Council concluded she was not an eligible child and did not therefore qualify.
15. Mr A appealed against the decision on the grounds that the route identified by the Council was not safe. He specifically said there was no safe place to cross a particular road on the route and that X would have to walk across fields by herself in the dark in winter.
16. In an email to Mr A in April 2020 the Council provided its stage 1 review of its decision stating:
• the home address was under 3 miles from the school;
• the Council’s Education Transport Appeals Committee (ETAC) had already considered the route and decided it was safe so a stage 2 appeal could only be made in exceptional circumstances; and
• if he wanted to proceed to stage 2 Mr A could either make a verbal presentation which would be considered by the ETAC or alternatively would be considered by a Transport Officer Panel if he did not wish to make verbal representations.
17. Mr A confirmed he wished to proceed to consideration at stage 2 of the appeals process and submitted a further appeal form in May. In this form he stated:
• X had a history of panic attacks which became a serious concern in 2015 requiring medical intervention from 2019 and that X had expressed anxiety about having to walk the identified route to and from school alone. He provided evidence in the form of doctor’s notes about the concerns expressed to the GP and a letter from a pastoral support manager detailing one to one support provided to X to help manage her anxiety and providing her view that provision of transport to secondary school would reduce X’s anxiety and enable her to have a more positive school transition; and
• the route included a busy road without a pavement, a poorly maintained unlit mud track and walking across a field that would be dark in winter.
18. The Council considered the appeal at stage 2 in late May. It was considered by an officer panel as the Council says Mr A did not ask to make verbal representations to an ETAC. In addition the ETAC had previously considered the issue of safety on the identified route and accepted the route was safe. The panel comprised three officers. A clerk took notes of the discussion. The panel decided to reject the appeal and the reasons for this as detailed in the clerk’s notes were:
• the home to school distance was around 2 miles to X was not an eligible child on those grounds;
• the issue of the safety of the route had already been considered at stage 1 and the route had recently been assessed and considered not dangerous by the ETAC so the officer panel had no authority to consider the safety issue further so went on to consider eligibility and the travel arrangements offered;
• under the Council’s policy the panel would expect X to be accompanied as necessary; and
• whilst X had anxiety the panel did not consider the evidence was sufficient to provide transport as an exception and therefore rejected the appeal.
19. The Council wrote to Mr A with the outcome of the appeal shortly after. The letter explained what the panel had taken into account and the reasons it reached its decision not to uphold the appeal.

The ETAC report on the safety of the route from Mr A’s village to the school

20. The Council has said that the ETAC had already conducted a review of the safety of the route in relation to another appeal so it was not necessary to complete another review in relation to Mr A’s appeal. The date of this review of the route was July 2019.
21. The review concluded that the route from the village to the school was considered to be available and not dangerous for an accompanied child. The review took account of data on traffic speed, accidents on the route and looked at the crossing points throughout the route and based the risk assessment on these factors.
22. The Council has confirmed that the report was not considered by the officer panel at X’s appeal because the route had already been deemed not dangerous. This was why the panel went on to consider other factors that may have meant X could be considered eligible for transport.

Council’s comments on Mr A’s complaint

23. In response to Mr A’s assertion that the Council has not been consistent in refusing to accept there are safety concerns on the route the Council says that whilst another appeal was agreed this was “based on the exceptional circumstances regarding the physical medical conditions of their children. The conditions are such that, both children, accompanied as necessary would not be able to walk the route to school”. Other information provided does not corroborate Mr A’s belief that other children have been provided with transport on the route due to concerns about the safety of the walking route.
24. It confirms that it gives mental health difficulties the same degree of importance and significance as mental health problems that may affect concerns about school journeys but in this case the panel accepted that the evidence provided in support of X’s mental health needs did not confirm that X would be unable to walk to school, accompanied as necessary. The Council also confirms that the family did not provide any evidence that either parent were unable to accompany X to school.

Was the Council at fault and did this cause injustice?

25. The Council properly considered the grounds of Mr A’s appeal and the appeal panel considered all possible grounds under which transport could be provided in addition to the safety of the route which had already been addressed in an earlier appeal. The panel clearly considered the medical information that Mr A had provided regarding X’s anxiety and how this affected her ability to walk to the school using the identified route. Whilst I recognise that Mr A does not agree with the merits of the panels there are no grounds for me to consider there was fault in the consideration of the appeal.
26. The assessment of the safety of the route completed in 2019 appears to have thoroughly addressed safety on the entirety of the route between the village in which Mr A lives and the school.
27. The Council argues that the grounds for upholding an appeal on the grounds of physical conditions affecting the children in another appeal was reached because those children could not walk to school even if accompanied. Such a decision was not reached in relation to Mr A’s appeal as the decision of the panel was that X could walk to school if accompanied.

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Final decision

28. There is no fault in relation to the Council’s consideration of Mr A’s appeal for home to school transport on the grounds of safety of the identified route.

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Investigator's decision on behalf of the Ombudsman