Summary: Mrs X complained the Council declined her application for school transport for her three children. She complained the Council did not fully consider her grounds for appeal and incurred delays in the process. We have found fault by the Council causing stress to Mrs X. The Council has agreed to apologise to Mrs X and reconsider her applications for home to school transport.

The complaint

1. Mrs X complains the Council declined her application for school transport for her three children. She says the Council did not fully consider her grounds for appeal and feels the Council has discriminated against her because of its decision.
2. Mrs X also complains about the length of time taken by the Council to consider her appeals.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have discussed the complaint with Mrs X and considered the information she provided.
7. I have made enquiries to the Council and considered the information it provided.
8. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Summary of relevant guidance

9. The Department for Education statutory guidance for home to school transport sets out councils’ duties. Councils must have regard for this when carrying out duties in relation to home to school transport and travel.
10. The relevant legislation is contained within sections 508 and 509 of The Education Act 1996.
11. Section 508B of the Act places a duty on Councils to make travel arrangements they consider necessary to facilitate attendance for eligible children. Schedule 35B of the Act defines eligible children. 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).
12. The statutory guidance requires local authorities to “make transport arrangements for all children who cannot reasonably be expected to walk to [the] nearest suitable school because the nature of the route is deemed unsafe to walk.”
13. The guidance also says “In determining whether a child cannot reasonably be expected to walk for the purposes of ‘special educational needs, a disability or mobility problems eligibility’ or ‘unsafe route eligibility’, the local authority will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account…”
14. The guidance goes on to say “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”

The Council’s home to educational establishment transport policy

15. The above policy sets out the Council’s duty and eligibility criteria.
16. The policy says the Council will consider individual requests for home to school transport where there are compelling reasons to justify making an exception to the policy and/or it is claimed the Council has not applied the policy correctly.
17. The policy says “Agreement to provide help with travel will be considered carefully and only if there is a significant reason why the child could not otherwise get to school, accompanied as necessary by their parent or carer in line with the general travel policy. For example, another child in the family attending a different school or conflicting with family working patterns would not normally be considered as a “significant reason”.
18. Unsuccessful applicants may appeal using the Council’s two stage review/appeal process. The policy says at Stage 1, the review request is reviewed by a senior officer and the applicant is notified of the outcome within 20 working days of the submission date.
19. If applicants are unsuccessful at Stage 1, they can ask for a Stage 2 appeal. The policy says appeals are heard by the Transport Officer Panel or the Education Transport Appeals Committee within 40 working days of submission. The policy says the Council will inform the applicant of the outcome of the appeal within five working days of the decision.

What happened

20. Mrs X moved to the area with her three children, Child A, Child B and Child C. Child A had a placement at a primary school, and Child B and Child C had a placement at a secondary school.
21. On 30 September 2020, Mrs X applied to the Council for school transport for her three children.
22. On 5 October 2020, the Council told Mrs X all three of her applications for school transport were unsuccessful. It said the distance from her home to the schools was under the statutory walking distance.
23. On 6 October 2020, Mrs X asked the Council to review its decision for each application. She said she considered the measured distances from home to school were incorrect. She also said the route was unsafe to walk because there were no streetlights along the route. Mrs X also said she was unable to accompany the children to school because she works full time.
24. The Council acknowledged receipt of the review requests on the same day. On 7 October 2020, the Council told Mrs X it would contact her again once it had assessed the routes.
25. On 5 November 2020, Mrs X emailed the Council to ask if the road assessment was completed and when she could expect notification of the outcome.
26. Mrs X contacted the Council again on 15 November 2020 to tell it she had sustained an injury which meant she was unable to drive her children to school. Mrs X also said the Council had previously told her it had not yet completed the road safety inspection.
27. The Council replied on 17 November 2020. It said the appeals had been assessed by a Road Safety Officer who had deemed the route to be “not dangerous/available”. The Council said Mrs X’s appeals would therefore be considered at the Education Transport Appeals Committee meeting on 14 December 2020, at which, Mrs X could attend via a video link. The Council said it would inspect the route before the meeting and asked Mrs X to submit any further supporting information in support of her appeals.
28. Mrs X replied on 18 November 2020 and asked the Council to provide a copy of the road safety report.
29. The Council responded on the same day. It provided Mrs X with a copy of the route plans but said the full road safety report was not yet finalised.
30. Mrs X replied and told the Council she was shocked part of the route was considered suitable as it had no streetlights and no pedestrian crossing or footpath.
31. On 4 December 2020, the Council told Mrs X the appeals would be heard as part of a virtual meeting arranged for 14 December 2020. The Council invited Mrs X to take part in the meeting.
32. On 7 December 2020, the Council carried out an inspection of the route.

The appeals meeting

33. Mrs X attended the virtual meeting of the Education Transport and Appeals Committee on 14 December 2020. The purpose of the meeting was to consider:

• Whether the walking route was unsafe for an unaccompanied child pedestrian,
• If not, whether it was reasonable for the parent to accompany the children,
• Whether exceptional circumstances prevented the children from walking to school, and
• Whether exceptional circumstances prevented the children from walking to school unaccompanied.

34. Mrs X told the committee parts of the route were very busy and had no streetlighting. She also said other families from her area had successfully appealed the Council’s decision not to provide school transport and said this set a precedent.
35. On 22 December 2020, the Council wrote to Mrs X and told her it had rejected her appeals. It said it had checked the distances from home to school and found them to be less than the statutory walking distance. It also said the committee agreed the route was not dangerous for a child pedestrian accompanied by an adult and there were no other exceptional reasons why the children should receive funded transport.
36. Mrs X remained unhappy with the Council’s decision and brought her complaint to us.

Analysis – was there fault by the Council?

37. As stated at paragraph four, 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. I have therefore reviewed how the Council considered the grounds put forward by Mrs X.
38. Mrs X appealed against the Council’s decisions on the following grounds:

• she considered the measured distances from home to school were incorrect;
• she said other children who live closer to the school had been awarded school transport;
• she said the route was unsafe to walk because there were no streetlights and few or no paths along the route, and
• she said she was unable to accompany the children because she works full time.

The measured distances

39. The Council’s decision letter dated 22 December 2020 says the Council rechecked the distances from Mrs X to her children’s schools. It says the distances are less than the statutory walking distance. Although Mrs X says the distances to the schools are “just over” three miles when she has driven the children to school, the Council’s school travel policy says it measures distances by the shortest possible walking route. This can include public rights of way. I consider the different methods of measuring the route provides an explanation as to why Mrs X considered the distances were incorrect. However, I have seen no evidence to indicate the distances measured by the Council are incorrect.

Other children’s transport arrangements

40. The Council says that due to a change in its school transport policy, some children may still receive school transport on a legacy arrangement. It says these travel arrangements are protected as a transitional arrangement until the student either moves school or home address, at which point, they will be assessed under the current school travel policy.
41. The Council also says each appeal is assessed based on its own circumstances and other families’ circumstances could not be considered as part of Mrs X’s appeal.
42. I acknowledge Mrs X says she feels discriminated against by the Council because she believes it provides all the other children in the area with school transport. However, the Council says this is not the case and other families have no eligibility to school transport because they also live within the statutory walking distance. I am satisfied the Council has applied its travel policy to assess Mrs X’s eligibility to school transport and have seen no evidence the Council has acted in a discriminatory way.

The route’s safety

43. I have seen the Council’s road safety report, the site visit notes and the minutes from the Education Transport Appeals Committee meeting. Mrs X raised concerns about the safety of the route because she said there are no streetlights and few or no paths along the route.
44. Having reviewed the evidence, I am satisfied the Council carried out a risk assessment to consider the safety of the route. The road safety report identified parts of the route which it considered to be of a higher risk factor, specifically in areas where it confirmed there are no footways. The minutes from the meeting show the committee discussed the findings of the report and considered alternative routes at certain higher risk points, including a specific point identified by Mrs X as having no streetlighting. It concluded the route was “not dangerous” “for a child pedestrian accompanied by a responsible adult”.
45. I am satisfied therefore the Council considered the safety concerns raised by Mrs X.

Consideration of Mrs X’s ability to accompany her children

46. The Council says it always expects children to be accompanied as necessary by a responsible adult, in line with the Department for Education’s statutory guidance. It says working arrangements, unless they are very exceptional, are not considered as a reason for not accompanying children to school. This is reflected in the Council’s school travel policy.
47. The guidance says councils should consider “whether the child’s parent can reasonably be expected to accompany the child”. Whilst it says, “the general expectation is that a child will be accompanied by a parent where necessary” it goes on to say, “unless there is a good reason why it is not reasonable to expect the parent to do so”. It also says, “a range of factors may need to be taken into account”.
48. I acknowledge the Council says work patterns are not normally considered to be a significant reason to provide school transport. But, in order to determine if Mrs X’s work patterns were a significant reason, I consider it was necessary for the Council to consider this point.
49. From the evidence provided, the Council is unable to demonstrate if or how it considered Mrs X’s work patterns, or her statement that she is unable to accompany her children to school. The minutes from the committee meeting and the Council’s decision letters do not provide any information about this.
50. The Council says Mrs X did not raise the issue of her work commitments when she attended the Appeals Committee meeting. It also says there are two adults in the household and Mrs X has not said if the other adult is able to assist in accompanying the children to school.
51. I acknowledge the Council’s comments. However, Mrs X raised the issue of her work commitments in her Stage 1 appeal applications, and one of the purposes of the committee meeting, as identified by the Council’s agenda item, was to determine whether it was reasonable for a parent to accompany the children to school. I have seen no record Mrs X’s work commitments were discussed or considered at the meeting and have seen no record of a discussion about whether the other adult in the household could provide assistance. Because there is no evidence this aspect of the appeal was addressed, I have found fault by the Council.

Notification letters

52. The guidance says council’s decision letters should contain a detailed written notification of the outcome of the review, setting out the factors it considered and the rationale for the decision reached. The Council’s notifications to Mrs X do not give any detail of how it considered her statement that she was unable to accompany her children. As this was one of Mrs X’s grounds for appeal, I have found this to be fault.

The Council’s handling of Mrs X’s appeal

53. The Council’s school travel application process says if the application is unsuccessful after the Stage 1 review, the Council will notify the applicant of the outcome within 20 working days of submission. The applicant can then ask for a Stage 2 appeal.
54. Mrs X submitted her appeals on 6 October 2020. On 17 November 2020, the Council told Mrs X her appeal was assessed by a Road Safety Officer, who deemed the route to be “not dangerous/available”. The email said the Council would consider Mrs X’s appeal at the next appeals committee meeting on 14 December 2020.
55. This differs from the Council’s policy as the notification of the Stage 1 appeal outcome did not wait for Mrs X to ask for a Stage 2 appeal. It said the appeals would be heard at the next committee meeting. I do not consider this to be fault because the policy says the applicant “can” ask for a Stage 2 appeal, not that the applicant is required to ask for a Stage 2 appeal. And I do not consider this caused an injustice to Mrs X as she had already indicated her disagreement with the decision not to provide transport. As a result, I consider it is more likely than not Mrs X would have requested a Stage 2 appeal.
56. The Council says its email to Mrs X dated 6 October 2020 should be treated as a Stage 1 response. It also says all Stage 1 reviews that challenge the safety of a route require an assessment by a Road Safety Officer if the route has not been assessed within the last five years.
57. I acknowledge the Council’s comments but do not consider its email of 6 October 2020 is notification of the Stage 1 decision. Although the email acknowledges receipt of Mrs X’s appeal applications, it does not give any decision about the outcome. It says a Road Safety Officer was requested to assess the safety of the route and that when the report was received, the Council would tell Mrs X about the outcome. Because the Council had not received the road safety report at the time of the email, it was unable to make a decision about Mrs X’s appeal on the grounds the route was unsafe. For this reason, I do not consider the email of 6 October 2020 is a Stage 1 decision notification.
58. The evidence shows the Council took longer than 20 working days to provide its Stage 1 decision, and slightly longer than five working days to provide its Stage 2 decision. As the Council took longer than the timescales specified by its policy, I have found this to be fault by the Council.
59. Having identified fault, I must consider whether this has caused Mrs X a significant injustice. Mrs X says the Council’s decision has caused her stress and placed a strain on her relationship with her employer. This is because she has taken time off work to drive her children to school. She says she is due to start a new job in July 2021 and will no longer be able to do this. In addition, the Council’s lack of an explanation regarding its decision caused Mrs X uncertainty that it had considered her appeal properly.

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Agreed action

60. To address the injustice arising from the fault identified, the Council has agreed to take the following action:

• Provide an apology to Mrs X within one month of the final decision;
• Arrange a new appeal within two months of the final decision, to address all the concerns raised by Mrs X.

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Final decision

61. I have found fault by the Council and the Council has agreed to take the above action to resolve the complaint. I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman