Summary: Mrs M complains the Council refused her application for school transport for her daughter, G and has not properly considered her concerns about the safety of the proposed walking route. The Council has agreed to arrange a completely impartial second stage appeal so Mrs M can challenge the decision on G’s eligibility for school transport.

The complaint

1. Mrs M complains the Council refused her application for school transport for her daughter, G. Mrs M does not consider the Council has properly taken account of her concerns about the safety of the proposed walking route to school. Mrs M is unhappy with the Council’s handling of her appeal.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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 have considered:
• Information provided by Mrs M;
• Information provided by the Council;
• the Education Act 1996 and Home to school travel and transport guidance. Statutory guidance for local authorities published by the Department for Education in July 2014; and
• the Council’s Home to educational establishment transport policy.
6. I invited Mrs M and the Council to comment on my draft decision.

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What I found

Home to school transport

7. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
8. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance. (Education Act 1996, Schedule 35B)
9. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
10. The nearest qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have.

Government guidance: transport appeals

11. The Government issued statutory guidance in 2014 which recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for school transport.
12. Parents can challenge the Council’s assessment of their child’s eligibility, its measurement of the distance to the school, and its assessment of the safety of the route. Parents can also ask the Council to consider their exceptional circumstances.
13. Stage one is a review by a senior officer. Parents can challenge the officer’s decision and request a review by an appeal panel. This is stage two.
14. The guidance says, “The intention is to […] provide a completely impartial second stage for those cases that are not resolved at the first stage”.

What happened

15. Pupils transferring to secondary school in 2020-2021 in Cheshire West and Chester did not need to apply for school transport. The Council said it would assess the eligibility of all pupils.
16. The Council wrote to Mrs M on 29 May 2020 to say that her daughter was not eligible for transport because her school is less than three miles from home.
17. Mrs M appealed the Council’s decision on 1 June 2020. She does not consider the walking route is safe.
18. The Council wrote to Mrs M on 26 August 2020 to say it had reviewed her appeal and G was eligible for school transport because the walking route was unsafe. The Council sent a bus pass.
19. The Council wrote to Mrs M on 1 September 2020 to say it had identified an alternative route which was not hazardous, so G was not eligible for transport. The Council asked Mrs M to return the bus pass.
20. Mrs M challenged the Council’s decision.
21. On 8 September 2020, the Council sent a “Stage 1 Letter”. The letter explained an Assistant Team Leader in the Transport Commissioning Service had reviewed Mrs M’s appeal and was satisfied the Council had correctly applied its policy to her application. The letter invited Mrs M to request the Appeals Committee consider her appeal if she was dissatisfied with the decision. This is the second stage of the Council’s appeals process.
22. Mrs M wrote to the Council on 11 September 2020 and asked for her appeal to be considered by the Appeals Committee.
23. The Council wrote to Mrs M on 6 October 2020 to say that the Appeals Committee would not consider her appeal. The Council explained the Appeals Committee was unable to consider the safety of the route. The Council said it would respond to Mrs M’s appeal as a complaint instead.
24. The Council sent its complaint response on 18 November 2020. The Council said it was unable to access the original safety assessment of the proposed route, but the officer who carried it out had considered Mrs M’s comments. The Council gave an account of the history of school transport from Mrs M’s village, a summary of its transport policy, and a list of factors considered when assessing the safety of a route. The Council said it has visited the route, but dismissed Mrs M’s concerns.
25. Mrs M complained the Council had not considered her appeal at the second stage of its appeals process. The Council wrote to Mrs M on 27 November 2020 and explained that her appeal was not eligible for the Appeals Committee since the Council was satisfied it had properly applied its policy, Mrs M had not demonstrated any exceptional circumstances, and she was not claiming financial hardship.
26. Dissatisfied with the Council’s response, Mrs M complained to the Ombudsman.

Consideration

27. Mrs M does not consider the proposed walking route from her home to G’s school is safe. The Ombudsman does not decide whether the route is safe. My job is to check the Council considered the matter properly.
28. Government guidance says Mrs M has a right to challenge the Council’s decision and should have access to a two-stage appeals process. Stage one is a review by a senior officer, and stage two is a review by an appeal panel which should be completely impartial.
29. The Council provided a response at stage one but refused to consider Mrs M’s appeal at stage two.
30. The reasons the Council gave for refusing to consider Mrs M’s appeal at stage two are:
• the Council held an appeal approximately ten years ago and decided pupils living in Mrs M’s village were not eligible for transport. Assessments were undertaken at the time to provide the necessary paperwork for the appeal;
• all subsequent requests for appeals from people living in the village have been refused; and
• the Council will not re-assess the route unless there are significant changes.
31. The Council said it is unable to locate the paperwork for the appeal which took place ten years ago, but an officer involved at the time remembers the case.
32. The Council said the officer had reconsidered the route and ‘visited pinch points to be satisfied of the traffic volume’. The Council considered the route was ‘still within appropriate levels as stated in the guidelines used to assess a route’. The Council said traffic volume was ‘low and courteous’. The Council confirmed that the sightlines were ‘still within the guidelines we practice’. The Council noted that two sections of the route have now had their speed limit reduced to 20 mph.
33. The Council did not provide any evidence to support these conclusions or afford Mrs M an opportunity to challenge them.
34. The Ombudsman recently issued a public report following an investigation of a complaint about school transport appeals (reference 19008896). Our report reminds councils they must follow the statutory guidance, including the recommended appeals procedure, unless they have good reasons not to. The Courts have taken the view that ‘good reasons’ is a high threshold. Any departure from the guidance should give parents at least the same opportunities to present their case and challenge the Council’s decision.
35. The Council has denied Mrs M an opportunity to challenge its decision and present her case to an independent appeal panel.
36. The Council’s policy makes provision for parents to challenge an officer’s decision at stage one with an appeal to a panel at stage two, but the Council has refused Mrs M’s request for a stage two appeal.
37. The Council says the appeal panel cannot make decisions about the safety of a route. This is wrong. The appeal panel should be able to consider the evidence and make a decision. Otherwise, it is not an appeal.
38. The Council said it had assessed the safety of the route ten years ago and other parents had challenged the decision over the last decade. Mrs M is entitled to her own appeal.
39. The Council could not provide any evidence to support its view the route was safe ten years ago because the ten-year old assessment was lost. Mrs M is entitled to see the Council’s evidence and challenge it.
40. The Council said there had been no significant changes in the last ten years, but did not provide any evidence.
41. The Council has not followed the statutory guidance on appeals and did not provide any reasons for departing from the guidance. This is fault.
42. Mrs M challenged the Council’s decision not to provide school transport for G on 1 June 2020. The Council did not conclude her case until 27 November 2020, six months later, and three months after G started secondary school. This is considerably longer than the Council’s policy says for stage one appeals and complaints. The delay is fault.

Agreed action

43. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
44. Mrs M has been denied a right of appeal against the Council’s decision not to provide school transport for her daughter, G. To remedy this injustice, I recommend the Council:
1. apologise to Mrs M for failing to arrange a completely impartial second stage appeal for her to challenge the decision on G’s eligibility for school transport and the delay in considering her case;
2. arrange a completely impartial second stage appeal so Mrs M can challenge the decision on G’s eligibility for school transport; and
3. if the appeal panel decides the Council should provide transport, the Council should agree a payment with Mrs M to reimburse any transport costs she has incurred since the start of the school year.
45. I recommend the Council takes these actions so that Mrs M receives a decision from her appeal within one month of my final decision.
46. The Council accepted my recommendations.

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Final decision

47. I have completed my investigation as the Council accepts my recommendations.

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Investigator's decision on behalf of the Ombudsman