Summary: The Ombudsman has not found fault with the Council’s decision to refuse Miss W’s son free school transport. This is because the Council correctly considered the statutory guidance, and the Ombudsman cannot question the merits of a decision without fault.

The complaint

1. The complainant, who I refer to as Miss W, is complaining about the Council’s decision not to provide free school transport for her son (Child A) who has special educational needs (SEN). The Council refused to provide Child A free school transport as it felt Miss W could reasonably accompany him walking to school. However, Miss W has a daughter (Child B) who she accompanies to a different school. Child B is 10 years old and Miss W feels this is too young an age to be left unaccompanied.
2. Miss W says the Council’s decision has meant Child A is out of school as she is unable to accompany him. As a desired outcome, Miss W wants the Council to provide free school transport for Child A.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. 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).
5. We investigate complaints of injustice caused by 'maladministration' and 'service failure'. 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).

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How I considered this complaint

6. I have reviewed Miss W’s complaints to the Ombudsman and Council, including her supporting documents. I have also had regard to the responses of the Council, its formal minutes of the appeal hearings, applicable legislation and statutory guidance.

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What I found

Relevant law and guidance

7. Under the Education Act 1996 (the Act), councils are required to make travel arrangements and provide free transport for “eligible children” to attend their nearest suitable school.
8. Eligible children are defined in Schedule 35B of the Act and include children living within walking distance of the school but who cannot reasonably be expected to walk to school. This may be because of their special educational needs (SEN), disability or mobility problem. For children with SEN, eligibility should be assessed on an individual basis to identify their particular transport requirements.
9. The home to school travel and transport statutory guidance (July 2014) outlines what Council’s should consider when deciding whether a child with SEN is eligible. Specifically, councils should consider whether the child can reasonably be expected to walk if accompanied. They should also consider whether the child’s parent can reasonably be expected to accompany the child to school.
10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. Councils can use a child’s EHC plan as evidence when considering whether a child with SEN can reasonably walk to school.
11. The Council's policy on school transport says that it will assess any child with SEN whose parent says they cannot safely walk to school. Further, it says it operates a two-tier appeal process against its decisions. At stage one, a senior officer of the Council will review the original decision made. Any stage two appeal will be heard by the Council’s Discretionary Transport Appeal Panel (the Panel). The Council’s policy outlines that parents cannot attend the stage two hearing and the Panel’s decision is final.

Chronology of events

12. In June 2020, Miss W’s SEND child, who I refer to as Child A, changed school and she applied to the Council for free transport. Child A previously benefited from free school transport at his previous school. Miss W has another child, who I refer to as Child B, who attends a different school. Miss W accompanies Child B who is ten years old.
13. In July 2020, Miss W’s appeal was heard at stage one of the Council’s appeals process. The Council decided to decline the application as the journey to and from Child A’s school is within the statutory walking distance. Additionally, it found there was no evidence to suggest that Child A could not reasonably walk to school, if accompanied. The Council also felt that Child B could reasonably make the quarter of a mile journey to school by herself, therefore allowing Miss W to accompany Child A.
14. In September 2020, the Council heard Miss W’s appeal at stage two of its appeals process. The Panel had regard to Miss W’s concerns that Child A had limited danger awareness. Further, it considered Miss W’s view that she could not accompany Child A as Child B was too young to walk to school alone. It also considered Miss W’s financial position and Miss W’s argument that other nearby children did qualify for free transport. Further, the Panel considered:
1. the issues surrounding Child A’s ability to walk to school, given his SEN, and the nature of the shortest walking route. The Panel decided there was no evidence that Child A could not reasonably walk to school, especially if he were accompanied on the journey by a responsible adult who would be alert to his behaviours and assess any potential risks. The Panel were advised that the Council had no traffic safety concerns with the shortest route.
2. the issues surrounding Miss W’s ability to get both Child A and B to school, noting Child B’s age, the location of her school and the similar start and finish times. The Panel determined that it is not uncommon for families to encounter having children at different schools and the need to find a solution to this issue. The Panel remarked that an arrangement could be made with other local families if Miss W believed Child B needed to be accompanied to school.
15. In late-September 2020, the Council informed Miss W of the outcome of her Stage Two Appeal. It told Miss W that, for the reasons outlined in paragraph 14(a-b), the Panel decided that it was not necessary to grant travel support. Miss W then brought her complaint to the Ombudsman.

My findings

16. To comply with the statutory guidance, the Council must consider whether Child A can reasonably walk to school, if accompanied Further, it must consider if Miss W can reasonably accompany Child A. Providing the Council considered the guidance correctly, I cannot by law question the merits of decision and the restriction I set in paragraph 5 applies.
17. In my view, Miss W’s evidence supports the Council’s consideration that Child A can reasonably walk to school, if accompanied. This is because Miss W says Child A can walk well. Therefore, what is fundamental to this matter is whether Miss W can reasonably accompany Child A to school. I recognise that Miss W accompanies Child B to a different school and that she feels her other child is too young to be left alone. However, the Council did consider the issue and it resolved that Child B could walk to school unaccompanied for two short periods a day. Further, it referenced that Miss W could seek the support of other families to accompany Child B if she were of the view that Child B must be accompanied. For the reasons that the Council considered all elements of the statutory guidance, I cannot decide any fault. Further, I cannot question the merits of a decision without fault.

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Final decision

18. The Council were not at fault in how it considered Miss W’s application and appeal for free school transport. This is because the Council correctly considered the statutory guidance, and we cannot question the merits of a decision without fault.

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Investigator's decision on behalf of the Ombudsman