Summary: Mr B complains that the Council was wrong to refuse his two children free school transport to their secondary school. We found no fault in the way the Council considered the decision to refuse transport and Mr B’s subsequent appeal. We cannot therefore question the merits of the Council’s decision.

The complaint

1. Mr B complains that the Council wrongly refused his request for free school transport for his two children. He says the Council’s decision means he has to drive his children to school, which he cannot afford and which he finds difficult due to his disability. Although the Council has now reinstated its Temporary Seats Payment Scheme and his children are again able to use the scheme, he considers that the Council should reimburse the additional costs he incurred in taking them to school.

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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. 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), 26A(1) and 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

4. I have considered Mr B’s written complaint and supporting papers and spoken with him. I have made enquiries of the Council and considered its response together with the papers from his appeal against the refusal of transport. I have considered the Council’s Application for Free School Transport-Guidance Notes, the Parents’ Guide to Education in Shropshire, information on school transport on the Council’s website and the Department for Education’s Home to school travel and transport guidance. I have also sent Mr B and the Council a draft decision and considered their comments.

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What I found

Relevant law and guidance

Transport for eligible children to the nearest suitable school

5. Councils must make arrangements to provide suitable free school transport to “eligible” children of statutory school age including those who:
• attend their nearest suitable school and live further than the statutory walking distance. This is two miles for children aged less than eight years old and three miles for children eight and above.
• are from a low-income family, defined as receiving free school meals or in receipt of the maximum Working Tax Credit. These children are entitled to free school transport if their nearest suitable school is between two and six miles away if they are aged eight to eleven. (Education Act 1996 section 508B and Schedule 35B)
6. Councils also have discretion to make provision for non-eligible children where they consider it “necessary” to facilitate the child’s attendance at school. (Education Act 1996 section 508C)
7. The Government has also issued statutory guidance to local education authorities on home to school transport. The guidance makes clear that it is for each local authority to decide whether and how to provide transport arrangements for children not eligible for free transport and whether to pay all or part of the travel expenses. Schemes may include charging for spare places on school buses used by eligible children. (Home to school travel and transport guidance - Statutory guidance for local authorities 2014, paragraph 37)

The Council’s policy

8. The Council’s policy is set out in the Council’s Application for Free School Transport-Guidance Notes and summarised in the Parents’ Guide to Education in Shropshire.
9. The Council provides free school transport to those children who meet the statutory criteria and are attending their nearest or catchment school, or who are eligible under the low-income criteria. However, the Parents’ Guide explains that:

“…if you are eligible for free school transport and you move home and you do not want to move your child from your preferred school, you may be liable for all transport costs if that school is no longer your catchment or nearest school. There will generally be very few exceptions to this situation. Lack of your own transport is not a reason for the local authority to provide it and you will have full responsibility for getting your child to school in these circumstances.”

10. The Council also offers discretionary transport in the form of its Temporary Seats Payment Scheme which allows parents/carers to pay for a spare seat on a school bus. This is offered at a discounted rate for children from families on low income. However, the Parents’ Guide points out:

“the temporary nature of this provision and that it can and will be withdrawn at short notice should an eligible pupil need to take up that seat. You should therefore always ensure that you have alternative transport provision in place because the local authority will not be able to fund any replacement transport.”

What happened

11. Mr and Mrs B have a daughter, C, and a son, D. C attends a secondary school which was her catchment area school. The Council provided transport for her on a school bus. Their son, D, was attending primary school.
12. In 2019, due to Mr B’s ill health and loss of employment, the family had to move house. As the family was now outside the school catchment area, C was no longer eligible for free school transport. However, Mr B was able to drive her around three miles to a nearby village where she could travel on a school bus, under the Temporary Seats Payment Scheme (TSPS).
13. Mr B’s son was due to move to the same secondary school as his sister in September 2020. Mr B therefore asked the Council to provide transport for both children.
14. The Council refused transport for both children. It explained that there was no entitlement to free school transport. It acknowledged that Mr B’s daughter had previously been using the TSPS, but said it was unable to continue offering this service at the time due to the COVID-19 crisis.
15. The Council has explained that the decision to temporarily suspend the TSPS was taken in order to help maintain safe school transport services for pupils statutorily entitled to free school transport, including key worker pupils/vulnerable pupils, to reduce coronavirus transmission and to protect lives.
16. Mr B was unhappy with this decision and appealed through the Council’s two-stage appeal process, comprising an officer review and then an independent appeal panel. He explained that he was struggling to get his children to school due to his disability which made it difficult for him to drive. He was also receiving Universal Credit and Personal Independence Payment and did not have sufficient income to transport the children every day.
17. The meeting minutes show that the panel considered the fact that the family had moved and the children were not entitled to free school transport as they were outside the catchment area. They were also not entitled to transport under the low-income criteria as they were not attending one of the three closest school and were more than six miles from the school.
18. The panel noted that no application was submitted for a transfer to a closer school. Moreover, C had been in year 9 when moving house (and so was not entitled to transport by virtue of being in an “examination year” (Year 10 or 11).
19. The panel also considered Mr B’s disabilities, and the impact that driving the children to school had on him. It said that, under its policy, it could consider free school transport on parental medical grounds, when parents were unable to transport them due to their medical condition, but this only applied when children were attending their nearest or catchment school.
20. The panel considered that Mr B had exercised a preference when he chose for his children to attend the school after moving home, so the responsibility and associated costs remained with Mr B.
21. It noted that C had previously been able to use the TSPS but that this was currently suspended and parents had been advised when using the scheme to have contingency plans in place. It also noted there was a local public bus service which C and D could use to get to school.
22. The panel considered whether there were grounds to exercise discretion outside the discretionary element of its policy. However, it said it was not uncommon to receive requests for transport from families who had moved out of catchment and where the parents did not wish their child to move school. The panel did not wish to set a precedent by offering transport in this case.
23. Following the panel’s refusal, Mr B wrote to the Council and provided further details on the personal circumstances that had led to his family having to move home, and why he did not wish to disrupt his children’s education by moving them to a new school. The Council said that he could complain to the Ombudsman.
24. Mr B complained to the Ombudsman and, in the meantime, continued to transport his children to school at a cost of around £130 per month, until schools closed again due to the further COVID-19 lockdown.
25. Once COVID-19 restrictions were easing, the Council was able to review the loadings on the school bus. It offered Mr B’s children two seats on the school bus under the TSPS for the last two weeks of the spring term and for the full summer term. No charge was made for the transport for the spring term.

My assessment

26. When considering complaints, we may not act like an appeal body. We cannot question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers. Instead, we focus on the process by which the decision was made.
27. I have reviewed the way the Council has considered Mr B’s request for transport for his children.
28. I have found no fault in the Council’s decision to withdraw the TSPS scheme temporarily during the COVID-19 crisis. The Council did so in order to reduce loadings on school buses to maintain public safety while seeking to meet its statutory duty to provide transport to those pupils who were eligible.
29. As to the decision to refuse transport, C and D are not in the school catchment area and do not meet the low-income criteria for free school transport. It was therefore for the Council to consider whether there were grounds to exercise discretion to provide transport.
30. The notes of the panel hearing indicate that the panel considered the family’s circumstances, as set out by Mr B, which included the difficulties caused by his disability and the family’s low income. However, the panel also noted that the family had chosen not to move the children to nearer schools when moving house, despite it being clear that the TSPS might be withdrawn at short notice. In the panel’s view there were insufficient grounds to exercise discretion to provide transport.
31. I appreciate that Mr B disagrees with the merits of that decision, but I am not able to conclude that there was fault in the way the decision was reached, so I cannot question the panel’s decision to refuse transport.

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Final decision

32. I have closed my investigation into Mr B’s complaint because I have found no fault in the way the Council considered his request for school transport.

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Investigator's decision on behalf of the Ombudsman