Summary: Ms X complained the Council refused to provide school transport for her child, Y, and failed to complete the school transport appeal process. The Council was at fault. It failed to properly consider the application and delayed holding the stage two appeal. The Council has agreed to apologise to Ms X and pay her £100 to acknowledge the frustration caused. It has also agreed to reconsider the application.

The complaint

1. Ms X complained the Council refused to provide school transport for her child, Y, and has failed to complete the school transport appeal process. Ms X says she has had to pay for school transport and she cannot afford it.

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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. 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)
4. 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

5. I have considered the information provided by Ms X and have discussed the complaint with her on the telephone.
6. I have considered the Council’s response to my enquiries.
7. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share the final decision with Ofsted.

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What I found

The Relevant Law

9. Local authorities have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances (s508B and Schedule 35B of the Education Act 1996).
10. 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.
11. 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’.
12. ‘Eligible children’ are defined in Schedule 35B of the Act as:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem
• 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
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if:
1. the nearest suitable school is beyond two miles (for children over eight and under 11);
2. the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
3. the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.
13. Local authorities also have discretion to provide transport for children who are not entitled to free transport.
14. At paragraph 24, the Home to School Travel and Transport statutory guidance sets out that ‘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. A smaller number of cases will need to be considered during the course of the school year eg, as a result of families moving to a new area’.

The Council’s Policy

15. The Council’s policy says it provides home to school transport in line with its legal obligations. If an application for travel assistance is not approved the Council offers a right of appeal. The Council operates a two stage appeal process. At stage one the appeal is considered by a Manager who will notify the parent or carer of the outcome within 10 working days of receipt of the appeal form.
16. If the parent or carer remains dissatisfied the appeal moves to stage two where it will be reviewed by the council’s Education Awards (Review) Sub-Committee). A decision will be made within 30 working days of receiving the stage two request.

What happened

17. Y attended a middle school in another Council area. Ms X contacted the Council for a year 9 place in the Council’s area. The Council explained this would be an in-year admission as it was outside its normal admission round. It sent Ms X a list of schools with possible places. It advised Ms X to apply direct to schools.
18. Ms X says she contacted several schools but they did not have places available. In September 2019, the Council offered Y a place at School A which was over three miles from where she lived. Y did not take up this offer of a place.
19. In January 2020 the Council offered Y a place at School B which was around 2.5 miles from their home address. Ms X told the Council the place was not required. At that time Ms X told the Council she was home schooling Y.
20. In April 2020 Y started at School C which is just over three miles for their home address. Ms X applied for home to school transport. On the application Ms X selected she was in receipt of maximum working tax credit. The Council refused the application later that month. The decision letter said ‘the school you are attending is over 3 miles walking distance from your home address but there are other schools closer to your address within 3 miles walking distance. You do not qualify for assistance under the low income policy because your child is not attending one of the three nearest schools to you home address that is more than 2 miles but less than 6 miles from your home address’. It attached a list of schools which were closer to the home address and explained Ms X’s right of review.
21. Ms X submitted an appeal. In her application she stated Y was attending ‘the nearest qualifying school that has made an offer…there may be other schools listed but there is non closer who have confirmed an offer of a place’. The Council refused the stage 1 appeal. It said ‘you have not provided any supporting evidence as to why your child cannot attend a near school. On checking your application for schools [two other schools she applied for] are further away. No applications have been made to any of the three near schools’.
22. Ms X submitted a stage 2 appeal in May 2020. In the appeal Ms X said the reason Y had not attended a nearer school as that she had not been offered a place at one. She also said her financial difficulties were not considered. The Council emailed Ms X in June 2020 to advise her of the date of the stage 2 hearing. In the information it prepared for the appeal the Council set out ‘Due to the local schools which are within walking distance, this excludes the lower income aspect of the appeal’.
23. Ms X emailed the Council in August 2020 querying why the appeal had not gone ahead. She sent a further email to complain her application was not processed according to policy and guidance. Ms X complained to us that she had not had a stage 2 appeal and had no response to her queries.

Findings

24. The Council, in response to my enquiries, accepted it had not yet held Ms X’s stage 2 appeal. It said this was because its appeals process was not robust enough. The delay in arranging Ms X’s stage two appeal was fault. This caused Ms X frustration and uncertainty.
25. When the Council refused Ms X’s application for travel assistance it provided Ms X with a list of nearer schools. However, the list did not show which if any of the schools had places available. Eligibility for free school transport is not based on whether there are nearer schools but whether there were nearer schools with places available. Under the statutory guidance the prospect of being able to secure a place at an alternative school must be a real one ‘at the point when transport eligibility is considered’.
26. The Council offered Y a place at School B which Ms X refused. However, if Ms X meets the low-income criteria, then her application for school transport must be considered in relation to whether the school applied for was one of the three nearest qualifying schools with places available at the time her child got their place. The Council’s records do not clearly set out whether it considered Ms X met the criteria for a low income family (ie, that she receives maximum working family tax credit or her child qualifies for free school meals) and I have seen no evidence there were three closer schools with places available when Ms X applied for school transport. This is fault. This means it is not clear whether the Council correctly considered Ms X’s application in the first place.

Agreed action

27. Within one month of the final decision the Council has agreed to:
• apologise to Ms X for the delay in arranging the stage 2 appeal and pay her £100 to acknowledge the frustration this caused her.
• reconsider Ms X’s application for home to school travel in relation to whether Y qualifies under the low income category and, if so, in relation to whether there were three nearer schools with places available at the point when transport eligibility was considered. If it decides Ms X’s child qualifies for free school transport it should reimburse Ms X’s for the transport expenses incurred since Y started at School C.

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Final decision

28. I have completed my investigation. There was fault leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman