Summary: Mrs B complains on behalf of Mr and Mrs X that the Council incorrectly measured the distance to their daughter’s school which led to the Council refusing their daughter’s free school transport application. They also complain about the Council’s refusal to refund all the school transport costs incurred because of its error. There was no evidence of fault in the way the Council made its decisions.

The complaint

1. Mrs B complains on behalf of Mr and Mrs X. Mrs B is their representative.
2. Mrs B complains the Council incorrectly measured the distance to Mr and Mrs X’s daughter’s school which resulted in the Council refusing their application for free school transport for their daughter.
3. Mrs B also complains the Council has refused to refund all the school transport costs incurred by Mr and Mrs X because of its error.
4. Mrs B says the Council’s failings has caused Mr and Mrs X’s family significant financial loss and inconvenience.

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The Ombudsman’s role and powers

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)
6. 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

7. I discussed the complaint with Mrs B and considered the information she provided. I also considered the information the Council provided in response to my enquiries.
8. I sent Mrs B and the Council a copy of my draft decision and considered the comments received before reaching a final decision.

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What I found

9. The Education Act 1996 says councils must provide free school transport to eligible children. The term ‘eligible’ means children of compulsory school age who meet certain criteria.
10. The eligibility criteria include children who live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above).
11. The “nearest suitable school” is the nearest qualifying school with places available that provides education appropriate to the age, ability and aptitude of the child.
12. It is up to each council how they decide on the “nearest” suitable school. A council may use different methods to measure the safe walking route and to decide the nearest suitable school in the same way it does for admission purposes (for example by straight line or shortest road route).
13. Local authorities must publish general arrangements and policies in respect of home to school travel and transport for children of compulsory school age. This information should be clear, easy to understand and provide full information on the travel and transport arrangements. It should explain both statutory transport provision, and that provided on a discretionary basis.

Council Policy

14. “In order to determine which school is the nearest to a home address, distances beyond the statutory walking distance (or where there is no available walking route) are measured by the shortest road route.”
15. “The route measured may include footpaths, bridleways, and other pathways, as well as recognised roads where these are assessed to be available.”
16. “Distances are measured in a consistent fashion using computerised measuring systems:

• for in-county measurements and for an address in Leicester City and Rutland, the County Council’s MapInfo software is used.
• for some distances that cross the county boundary…., Google Maps is used. This is because the County Council’s MapInfo system currently only covers addresses that fall in Leicestershire, Rutland and Leicester City and a certain distance into other counties. Please note that these methods may change as new software becomes available.
• on request, we will provide a map of the available walking or road route and/or a list of the street/roads measured in determining the distance between home and school.”

17. The Council “reserves the right to refuse retrospective claims for transport costs undertaken by parents. In exceptional circumstances, the County Council can make direct payment to parents or students who make their own arrangements for journeys to and from school or college. However, this will only be done by agreement and where it is more cost effective to the Council.”

Background

18. Mr and Mrs X have two children: Child 1 and Child 2.
19. Child 1 started secondary school (School A) in 2016.
20. Child 2 transferred to School A in 2019.

What happened

21. This chronology includes key events in this case and does not cover everything that happened.
22. In April 2016, the Council notified Mr and Mrs X that Child 1 was not eligible for free school transport. The Council’s decision was based on the School Admissions Information from 1 March 2016. The Council explained although they live more than 3 miles from the school, it was not the nearest school to their home address.
23. Mr and Mrs X changed Child 1’s school preference. Child 1 secured a place at School A.
24. In October 2017, Mrs X requested a review of Child 1’s eligibility for free school transport. This was because the Council reassessed the boundaries from Mr and Mrs X’s home address to School A in response to a separate query from another parent. The Council considered Mrs X’s review request. It decided Child 1 did not qualify for free school transport because School A was not the nearest school. The Council said School B was the nearest school to Mr and Mrs X’s home address.
25. In September 2019, Child 2 transferred to School A.
26. In October 2019, following an appeal from another family, the Council reviewed the route distance for School A again. This revealed a footpath on the route. The Council reviewed the eligibility decisions it made in 2019, which included Child 2.
27. In November 2019, the Council notified Mr and Mrs X of the new measurements from their home address to School A. It confirmed School A was the closest to them. The Council explained the automatic mapping system does not always recognise all the correct route networks. The Council said in most cases, this omission does not affect free school transport eligibility outcomes but it did in Mr and Mrs X’s case. This was because the difference in distances between School A and School B was almost the same. The Council apologised to Mr and Mrs X for the inconvenience the matter caused to their family. The Council decided Child 1 and Child 2 were eligible for free school transport to School A.
28. Mrs X asked the Council to refund the travel costs the family had incurred for Child 1 from 2016 to 2019.
29. In December 2019, the Council refused to refund the full travel costs for Child 1 from 2016. The Council said according to its Home to School Transport Policy, it reserves the right to refuse retrospective claims for transport costs undertaken by parents. It also explained there was no precedent for reimbursing retrospective travel claims even in cases of formal appeal process. The Council said although Mr and Mrs X were not awarded transport through the appeal process directly, it was appropriate the same considerations were applied.
30. The Council maintained the automatic mapping system used for assessing transport eligibility did not pick up the footpath on School A route from their home address. It explained mapping systems get updated and improved regularly. The Council said when the new information about the footpath in 2019 was revealed, it notified Mr and Mrs X and it awarded eligibility to their children. The Council said it was not appropriate for it to refund historic travel costs where new mapping information and measurements are received. The Council decided to offer Mr and Mrs X a refund for the petrol costs they incurred. This was to cover the number of school days between the time it made its eligibility decision and when it issued bus passes to Child 1 and Child 2 in 2019. This was because when Child 2 started attending School A in 2019, Mr and Mrs X began to drive both children to school.
31. In February 2020, Mr and Mrs X made a complaint to the Council. They disagreed with the Council’s reasons not to refund them the full travel costs for Child 1. Mr and Mrs X argued the only reason they paid for Child 1’s school transport was because the Council found her ineligible for free school travel to School A between 2016 and 2019. They said it was the Council’s responsibility to accurately measure the school routes but it failed to do so. Mr and Mrs X said the Council’s failings caused them avoidable expenses over many years. They also said it was irrelevant whether there was no precedent for reimbursing retrospective travel costs. They maintained the Council failed to fulfil its responsibilities when it provided them with inaccurate measurements.
32. Mr and Mrs X refused the Council’s petrol costs refund offer. They asked the Council to refund them the full travel costs between 2016 and 2019.
33. In March 2020, the Council issued its final response to Mr and Mrs X’s complaint. The Council upheld its initial decision. It said the Council made every effort to ensure it provided accurate route measurements. The Council explained it took all the three measurements in 2016, 2017 and 2019 in line with its policies, processes and the information available at those times. The Council said it has a two-stage appeal process for parents to challenge its decision where they consider the Council’s decision is wrong. This includes any local knowledge parents may have about routes. It said the Council provided Mr and Mrs X with the measurements to School A and School B but they did not make a formal appeal. The Council confirmed it has a responsibility to measure routes accurately and said it discharged its responsibility in this case.
34. In May 2020, Mrs B contacted the Council on behalf of Mr and Mrs X. Mrs B explained Mrs X did not appeal because she had no reason to question the Council’s decision. She said they feel they had been unfairly penalised for the Council’s error. Mrs B requested the Council’s review Mr and Mrs X’s case.
35. The Council said it empathised with Mr and Mrs X’s and acknowledged the frustration and inconvenience the matter had caused them. The Council maintained it discharged its responsibility when it provided accurate measurements based on available information from the mapping device on the three occasions. The Council said its offer of the petrol costs refund remained available to Mr and Mrs X.
36. Mr and Mrs X remained dissatisfied with the Council’s response. Mrs B made a complaint to the Ombudsman on behalf of Mr and Mrs X.

Analysis

37. The law is clear that councils must provide free home to school transport for eligible children of compulsory school age to the nearest qualifying schools. Eligible children are those who live beyond the statutory walking distance from school. Councils may use different methods to measure and decide the nearest suitable school in the same way it does for admission purposes. For instance, the shortest road route.
38. The Council’s Home to School Transport Policy is in line with the law. The Council uses a mapping software to measure the shortest available school routes. Its policy also states the route measures may include footpaths and other pathways, as well as recognised roads where these are assessed to be available.
39. Evidence shows the Council used its mapping device and provided Mr and Mrs X with the route measurement from School A to their home address in 2016. The Council reassessed the same route in 2017 in response to a separate query from another parent. On both occasions, based on the route measurements from the mapping device, School A was not the nearest school. Therefore, the Council decided Child 1 was not entitled to free school transport.
40. However, in 2019 following another reassessment of the route, a footpath was revealed on the mapping device. This made School A the nearest to Mr and Mrs X’s home address and the Council awarded free school transport eligibility to Child 1 and Child 2.
41. I find the Council’s decision to refuse Mr and Mrs X’s application for school transport for Child 1 between 2016 and 2019 was in line with its policy. This is because the Council made its decisions based on the route measurements obtained from its mapping device. I do not consider the Council acted with fault in this case. The Council is entitled to rely on the available information at the different times it reviewed the route measurements from School A to Mr and Mrs X’s home address. Therefore, I do not find fault with the decisions it made in 2016 and 2017 to refuse Child 1 free school transport.
42. I appreciate Mr and Mrs X’s view that it is the Council’s responsibility to provide them with accurate route measurements. However, I do not consider it reasonable for the Council to carry out speculative checks on thousands of routes to schools. But I would expect the Council to refund any travel costs of any school term or year when it discovered the entitlement change. In this case, the Council has offered to refund Mr and Mrs X the petrol costs they incurred in 2019. This is to cover the number of school days between when the mapping device revealed the footpath (entitlement change) to when the Council issued the children their bus passes. This is proportionate and appropriate and in accordance with our guidance on remedies. I do not therefore, find fault by the Council for its refusal to refund the full travel costs Mr and Mrs X incurred over the three-year period for Child 1.

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Final decision

43. I find no evidence of fault by the Council in the way it reached its decisions.

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Investigator's decision on behalf of the Ombudsman