Medway Council (20 004 953)

Category : Education > School transport

Decision : Not upheld

Decision date : 05 Mar 2021

The Ombudsman's final decision:

Summary: the complainant complained the Council failed to properly consider her application for free home to school transport when her daughter gained a place at a grammar school through an admissions appeal. The Council says it and the school transport appeal panel considered the appeal properly but could not grant free school transport under its policy. We found the Council and its appeal panel acted without fault.

The complaint

  1. The complainant whom I shall refer to as Mrs X says the Council failed to properly consider her application for free home to school transport. Mrs X believes her daughter Y should qualify for free transport following the local grammar school’s independent appeal panel’s award of a place at the school.
  2. Mrs X says the Council’s refusal to award transport has caused practical and financial difficulties for the family. Mrs X wants the Council to accept that having gained a place on appeal Y is at grammar school and should receive home to school transport.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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

  1. In considering this complaint I have:
    • Contacted Mrs X and read the information presented with her complaint;
    • Put enquiries to the Council and reviewed its responses;
    • Researched the relevant law, guidance, and council policy.
    • Shared with Mrs X and the Council my draft decision and reflected on the comments received before making this final decision.

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What I found

  1. Mrs X applied for a place for her daughter Y at a grammar school for admission in September 2019. Y did not achieve a pass in the Council’s Medway Test which decides if a pupil is suitable for selective education. Under the terms of the home to school transport policy, the Council refused her application. However, Y gained a grammar school place through the grammar school’s independent appeal procedure.
  2. Mrs X says that, if Y had been successful in the test, she would have been entitled to free school transport. The Council agrees because its school transport policy says it will provide free transport to a grammar school if the applicant passes the test. The Council’s school transport policy also says the Council will offer free school transport if the nearest school with a place available is over a set distance from the pupil’s home. Where a pupil fails the test, but gains a place on appeal, the Council will consider the grammar school as well as other schools with places available. If another school is nearer to the pupil’s home, then the Council will not provide transport to the grammar school even though the pupil has gained a place there.
  3. The Council found schools with available places nearer to Y’s home than the grammar school. The Council says these schools provided a suitable placement for Y. The Council said under its home to school transport policy Y did not qualify for free home to school transport. Mrs X appealed against this decision.
  4. The Council’s appeal policy provides for two appeal stages. At the first stage, the Council reviews its decision against its school transport policy. At the second stage, the appellant may attend an appeal panel to make their case in person or seek representation by their local councillors. The panel has the discretion to consider whether there are exceptional circumstances which would justify an exception to the school transport policy.
  5. At the first stage of the appeal the Council did not uphold the appeal. In its decision it explained Mrs X did not qualify for free school transport under the distance, and low- income criteria set out in the school transport policy. The decision also said Y did not qualify through the Medway Test as being of grammar school ability. Therefore, the Council says it could not consider the grammar school as the nearest school, even though Y now had a place at grammar school.
  6. Mrs X appealed to the appeal panel. Due to the limits imposed to contain the Covid-19 pandemic the Council organised appeals via Teams. Mrs X said the Council had offered free school transport to the nearest high school with places available. Mrs X pointed out had Y passed the Medway Test and been suitable for grammar school the Council would have offered her free transport. Mrs X’s local councillor supported her appeal and put his representations to the appeal panel. In those representations both the councillor and Mrs X asked the appeal panel to consider concerns the Council had not properly conducted the Medway Test resulting in disadvantage to Y. They believe but for the alleged faults in the conduct of that test and the following academic review, Y would have passed the test and received free school transport.
  7. Mrs X attended the second stage appeal hearing. The panel considered her case and refused the appeal. Mrs X believes the appeal panel’s decision was wrong.
  8. The evidence from the appeal papers and decision letter shows that the panel heard from Mrs X and her representative. The appeal panel heard their views on how Y met the low-income, distance and grammar school criteria in the school transport policy. The panel heard why Mrs X believed the Medway Test and academic review had not been properly conducted leading Y to fail. The panel considered the exceptional circumstances Mrs X believed applied to Y’s case. The appeal panel took the view that the Council had properly applied its school transport policy and there were no exceptional circumstances to justify not applying the policy.

Analysis – was there fault leading to injustice?

  1. My role is to decide whether the Council properly considered Mrs X’s appeal for free home to school transport. It is not my role to decide whether Y should be offered free home to school transport. If I find fault, I must decide what impact that has had and what the Council should do to address that.
  2. The Council’s home to school transport policy only provides free school transport to a grammar school if a pupil passes the Medway Test. It does not provide free school transport to those pupils who gain a grammar school place on appeal unless the grammar school is nearer than any other available school with places. Therefore, to qualify a pupil will usually have to pass the Medway Test.
  3. Mrs X believes this to be unfair and that having gained a place through an independent appeal the Council should consider that as the same as if the pupil passed the Medway Test. While that is an understandable view the Council’s policy clearly says a pupil must pass the Medway Test.
  4. How the Council conducted the test, or the academic panel conducted its review are not part of this investigation.
  5. Mrs X put forward other reasons for treating Y’s case as exceptional under the school transport policy. Having considered the representations put forward the panel decided Y’s case was not exceptional.
  6. The panel gave Mrs X the opportunity to present her case in line with government guidance and it heard from her representative. The panel had before them all relevant information including Mrs X’s views. The papers show the panel considered all the information when deciding the appeal. Therefore, I find the Council and its appeal panel acted without fault and so I cannot challenge the merits of the decision.

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Final decision

  1. In completing my investigation, I find the Council and appeal panel acted without fault. Therefore, I cannot challenge the merits of the decisions made.

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Investigator's decision on behalf of the Ombudsman

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