Essex County Council (20 005 439)

Category : Education > School transport

Decision : Not upheld

Decision date : 28 Jan 2021

The Ombudsman's final decision:

Summary: Ms X complains about the Council’s decision to refuse her application for school transport for her son. We do not find fault with the Council’s decision.

The complaint

  1. Ms X complains about the Council’s decision to refuse her application for school transport for her son.

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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 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

  1. I spoke with Ms X and considered the information she provided.
  2. I considered the information provided by the Council.
  3. I sent a draft decision to Ms X and the Council and considered their comments.

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What I found

Home to school transport

  1. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. (Education Act 1996, 508B(1) and Schedule 35B)
  2. Eligible children include those who:
    • live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above);
    • receive free school meals, or whose parents receive the maximum Working Tax Credit, for transport to one of the three nearest schools up to a distance of six miles.
  3. The qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.
  4. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

Council policy

  1. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport under the legal criteria.
  2. It says unless the low-income criteria are met, it will not provide transport to a school if:
    • there is any nearer school to the home for which a parent did not apply on the original admission application
    • there is a nearer available school which was listed as a lower preference on the original admission application
    • the parent has rejected an offer of a place at any nearer school.
  3. It also allows for the Council to award transport where it considers there are exceptional circumstances. It must be satisfied the parents have showed there are social, medical, financial or personal reasons why they cannot take the child to school themselves.

What happened

  1. In May 2020, Ms X submitted a school transport application for her son. Ms X’s son has a diagnosis of Autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD). Ms X’s son does not have an education, health, and care plan. He attends a mainstream secondary school, school A.
  2. Ms X also has a daughter who had previously received free school transport. Ms X said she withdrew her daughter from the school transport because of an incident that had occurred previously when she was on school transport.
  3. The Council declined to provide school transport and Ms X appealed the decision in September 2020. Ms X asked the Council to transfer her daughter’s eligibility for school transport to her son.
  4. The Council said its policy was to provide free home to school transport to children attending the nearest state secondary school, where that school is three miles or more from the home. The Council confirmed there were extended rights for children from low-income families for free transport to be provided to any one of the three nearest schools between two and six miles from the home. The Council did not decide whether Ms X’s application met the extended low-income criteria. Ms X said she met the low-income criteria.
  5. The Council said it refused Ms X’s application for school transport for her son because he did not attend the nearest school to his home address. The Council said the nearest school was School B, which was 2.12 miles from the home address. School A was 6.88 miles from the home address. The Council also said when Ms X applied for a secondary school place for her son, her first preference was for School A and second preference was for School B.
  6. The Council said it could not transfer Ms X’s daughter’s previous transport award to her son. The Council explained it considered each individual transport application purely on the individual circumstances of the case. The Council confirmed while her daughter may be eligible, her son was not eligible for free school transport under its transport policy.
  7. The Council also considered whether to exercise discretion to provide transport assistance in exceptional circumstances. The Council said it needed to be satisfied the parent had shown why they, for social, medical, financial, or personal reasons could not transport their child to and from school. The Council said Ms X did not provide any evidence for it to consider.
  8. Ms X appealed the decision, and the Council considered the appeal at the end of September 2020. The Council confirmed it had refused to provide home to school transport as Ms X’s son did not attend his nearest available school. The Council said the nearest available school was School B. The Council also said it would have offered School B had it been named as a higher preference.
  9. The Council also confirmed it could not transfer Ms X’s daughter entitlement to school transport to her son as the award of transport assistance was not transferrable for any reason. The Council said it had to assess all home to school transport applications individually against its transport policy.

Analysis

  1. The law is clear that councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. Eligible children are those who live beyond the statutory walking distance from school. There is also an extended criteria for children from low-income families where transport is provided to one of the three nearest schools, up to a distance of six miles.
  2. The Council’s transport policy is in line with the law as it sets out the same criteria for home to school transport.
  3. The evidence shows Ms X’s son does not attend his nearest qualifying school. The Council’s transport policy is clear the Council will not provide transport to a school if there is any nearer available school which was listed as a lower preference on the original admission application. In this case, School B is the nearest school to Ms X’s home address. The evidence shows Ms X listed School B as her second preference when she applied for school places for her son.
  4. Therefore, the Council’s decision to refuse Ms X’s application for school transport for her son is in line with its policy. This is because School A is not the nearest available school to the child’s home address. As the Council made its decision properly, I cannot find fault with the decision itself.
  5. Further, there is no fault in the Council’s decision to not transfer Ms X’s daughter’s entitlement to school transport to her son. This is because the Council is entitled to consider the circumstances of the individual child in line with its transport policy. There is also no law or policy which states eligibility for transport is transferrable between children.
  6. Finally, Ms X said she meets the criteria to be considered low income. The law is clear that where a child comes from a low-income family, transport will be provided to one of the three nearest schools, up to a distance of six miles. This is reflected in the Council’s transport policy which notes that children in years 7-11 from low-income families are entitled to transport where they attend one of the three nearest available schools to their home address, provided the schools are between two and six miles from the home address.
  7. The Council did not set out in its decision whether Ms X’s son met the criteria to receive school transport under the extended statutory entitlement for low-income families.
  8. However, the law, and the Council’s transport policy, is clear that the child must attend one of the three nearest available schools to their home address and that the school must be between two and six miles from the home address. The Council has explained School A, while one of the three nearest available schools, is 6.88 miles from the home address.
  9. Therefore, Ms X’s son would not be eligible for school transport under the low-income criteria because the school he attends is not between two and six miles from the home address. Therefore, the Council’s decision to decline Ms X’s school transport application is not likely to change.

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Final decision

  1. I find no fault with the Council’s decision to decline Ms X’s school transport application for her son. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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