Summary: Mrs B complained that the Council had failed to deal correctly with her application for home to school transport for her son. We found no fault by the Council in this matter.

The complaint

1. The complainant, whom I shall call Mrs B, complained the Council failed to follow the Department of Education’s guidance on home to school transport correctly and implemented a school transport policy which is unlawful. She complains that as a result it failed to offer her son free home to school transport to his current school. She reports that as a result the family is experiencing difficulties getting him to school as it cannot afford a termly bus pass.

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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 considered all the information provided by Mrs B. Written enquiries were made of the Council and I have considered all the information it provided in response. I have had regard to the relevant legislation, guidance, and policy.
6. Mrs B and the Council had an opportunity to comment on my draft decision. I considered all comments received in response before making my final decision.

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What I found

Legal and administrative information

The law

7. Key legislation and guidance are set out in the Education Act 1996, sections 508B, 508C and Schedule 35B (as inserted by the Education and Inspections Act 2006) and ‘Home to school travel and transport Statutory Guidance’ issued in July 2014 (the Guidance).
8. Under the legislation, councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. 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);
• live within walking distance of the school but who cannot to walk to school because the route is unsafe;
• receive free school meals, or whose parents receive the maximum Working Tax Credit, if for example the school is between two and six miles (for pupils aged 11-16 and for transport to one of their three nearest qualifying schools).

9. 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.
10. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

Statutory guidance

11. In July 2014, the government issued its ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’). Councils must take account of this statutory guidance when setting their transport policies. The Guidance recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support:

• Stage 1: review by a senior officer; and
• Stage 2: review by an independent appeal panel.

12. The Guidance says the independent appeal panel should consider “written and verbal representations from both the parent and officers involved in the case”. Appeal panel members should be independent of the original decision-making process but do not have to be independent of the council. They should be “suitably experienced”, at the council’s discretion.
13. The stage 2 decision notice should set out the decision, the information and factors considered, and the rationale for the decision. It should also include information about parents’ right to contact the Ombudsman if they consider there were flaws in the way the council considered their appeal.
14. The 2014 Guidance says, “Previous guidance made clear that local authorities should have in place and publish their appeals procedures but left it to the individual authority to determine how this should operate in practice. We are now recommending that local authorities adopt the appeals process set out below… The intention is to ensure a consistent approach across all local authorities, and to provide a completely impartial second stage, for those cases that are not resolved at the first stage”.

Council policy

15. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport under the legal criteria.
16. It says unless the low-income criteria are met (not relevant to this complaint), transport will not be provided 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; or
• the parent has rejected an offer of a place at any nearer school.

17. Under its policy the Council measures the ‘shortest road route’ to calculate distances to establish which is the nearest school to a child’s home address. It does so using a Geographical Information System (GIS). The policy says:
    “The GIS measures the distance using the Ordnance Survey Highways road network data which is the base data for many online mapping and routing applications. The route measured will start at the point on the road network that is closest to the Ordnance Survey address point of the pupil’s home, and will end at the point on the road network closest to the address point of the school….The measurements produced by the Council’s GIS are the definitive distance calculations that the Council will use to determine transport eligibility.”
18. The policy also allows for the Council to award transport where it considers there are exceptional circumstances. It must be satisfied that the parents have demonstrated there are social, medical, financial, or personal reasons why they cannot take the child to school themselves.

The Council’s appeals process

19. The Council has a two-stage transport appeals system as follows:

• Stage 1 - consideration by an officer more senior than the previous decision maker. This is a Service Manager in the admission and education awards section.
• Stage 2 - a full and final decision made by an officer more senior than the officer that considered the first stage appeal. This is the Head of Statutory and Regulated Customer Services.

What happened in this case

20. Mrs B applied to the Council for help with home to school transport for her son, who was due to start in Year 7 at a mainstream secondary school, School X, in September 2020. Mrs B confirmed he had been offered a place at the school, which she said was the nearest to their home address but more than three miles away.
21. The Council refused the application for home to school transport and notified Mrs B of this in writing. It said the school was not the nearest to the home address and so there was no entitlement to free transport. School Y is deemed to be the nearest to the home address.
22. Mrs B appealed against the Council’s decision. She set out how long it would take to drive to School X and to the alternative, School Y, both of which are more than three miles from home. She said School Y would take a couple of minutes more and using a ‘postcode to postcode’ calculation it was also slightly further away from home.
23. In its response at the first stage of the appeal process the Council explained its policy is 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. In addition, there are extended rights for children from low-income families for free transport to be provided to any one of the 3 nearest schools between 2 and 6 miles from the home. A low-income family is defined as one where the household income is less than £16,190 per annum. It said Mrs B’s application for school transport had been refused because School X is not the nearest available school to the home address: School Y is the nearest available.
24. Mrs B then asked the Council for the routes it had used and the measurements, and for a copy of the school admissions preference form she had competed online. The Council provided the admission information, confirming Mrs B had ranked School X as her first preference school.
25. Mrs B proceeded to the second stage appeal. She considered that in applying the GIS measurement only the Council was wrongly failing to consider other factors such as the safety of the child, the cost of travel arrangements, journey times and the personal circumstances of the family in terms of having one working parent and other children they need to care for.
26. After consideration at Stage 2 the Council said again that the application had been refused as the child was not attending the nearest available school. Mrs B had applied for School X as her first preference school, and a place was offered at that school on national offer day. The Council said that for the purposes of home to school transport, the nearest school is School Y and a place there would have been offered if it had been named as first preference.
27. The Council referred to its Education Transport Policy, which states:
    “Unless the low-income criteria is met, transport will not be provided 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 any 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”.
28. The Council said that in line with the statutory guidance its policy considers the shortest available walking route. The distance and route calculations determined by this method showed School Y is closer to the home address, at some 5.38 miles, compared with School X at 5.94 miles.
29. The Council noted Mrs B had referred to her reasons for choosing School X as first preference, but these reasons did not form part of the consideration for home to school transport. The Council set out that school admissions information online relating to ‘priority admission areas’ for schools was purely for the purpose of the administration of school admission applications and did not relate to home to school transport, and it set out the relevant disclaimer to this effect which states:
    “The information provided through this tool is solely in relation to school admissions and does not relate to the provision of home to school transport. All school transport applications will be considered under the Council's home to school transport policy. The priority admission (catchment) area school for an address may not be the nearest school to that address”.
    The Council also pointed out that the published admissions booklet clearly advises that the offer of a school place does not guarantee free school transport even if the school is more than three miles from home.
30. Mrs B’s appeal was not upheld.

Analysis

31. As noted above, the law sets out 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 criterion for children from low-income families where transport is provided to one of the three nearest schools, up to six miles.
32. The Council's transport policy sets out the same criteria for home to school transport. The 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. Mrs B’s son attends School X, and this is not his nearest qualifying school. School Y, which Mrs B listed as her second preference when she applied for school places for her son, is the nearest qualifying school.
33. The evidence shows that the Council's decision to refuse Mrs B's application for school transport for her son was in line with its policy. The Council is not at fault in relying on the GIS measurement system it refers to in its policy. It must apply the same system to all applications, and it provides information to parents about how to find out which is the nearest school for transport purposes. The question of the safety of the walking route to school is not a relevant factor where the Council has decided the child is not attending the nearest suitable school measured by the shortest road route.
34. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence. As the Council made its decision properly, I cannot find fault with the decision itself.
35. Insofar as the appeals process is concerned, as set out above the process adopted by the Council differs from that set out in the Guidance. In an investigation on another complaint against this Council the Ombudsman asked it to explain how and why it had decided to adopt an appeal process that did not include an appeal panel at stage 2. It provided its reasoning, which included the following factors:

• The Guidance says the proposed appeals system is recommended but not compulsory.
• There is no specific legal framework requiring independent appeal panels for school transport appeals unlike for school admission appeals, which are established by law with a binding appeals code.
• Local authorities cannot therefore delegate their decision to an outside body.
• Its two-stage officer review process allows the decision to be considered by two subject matter experts each independent of the previous decision-maker, and not involved in the previous decisions.
• The policy itself allows the Council to consider exceptional and extenuating circumstances.
• Its policy has shorter timescales than in the recommended process allowing for quicker decision-making.
• The policy allows for decisions about safety of the walking route to go through a separate two-stage process with a member panel at stage 2.

36. Having reviewed all relevant information, the Ombudsman was satisfied the Council had provided sufficiently clear and cogent reasons for departing from the Guidance. In conclusion therefore, the Council is not at fault in departing from the Guidance by having a senior officer review rather than an appeal panel at the second stage.

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Final decision

37. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman