Summary: Ms X complained about the Council’s decision to refuse her application for home to school transport for her child and the delay in carrying out her appeal. There was no fault in the way the Council reached its decision to refuse the application. It was at fault for the delay in holding the appeal. It has already apologised for this which is a sufficient remedy for the frustration this caused.

The complaint

1. Ms X complained the Council delayed reaching a decision on her application for home to school transport and has failed to complete the school transport appeal process. Ms X says she has had to pay for school transport and she cannot afford it.

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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 have considered the information provided by Ms X and have discussed the complaint with her on the telephone.
6. I have considered the Council’s response to my enquiries.
7. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The Relevant Law

8. Local authorities have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances (s508B and Schedule 35B of the Education Act 1996).
9. Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
10. The relevant ‘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’.
11. ‘Eligible children’ are defined in Schedule 35B of the Act as:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if:
1. the nearest suitable school is beyond two miles (for children over eight and under 11);
2. the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
3. the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.
12. Local authorities also have discretion to provide transport for children who are not entitled to free transport.
13. If a parent chooses a school beyond the relevant walking distance when there was a vacancy at a school the council deemed suitable, the child will not be eligible for free transport to the chosen school.
14. At paragraph 24, the Home to School Travel and Transport statutory guidance sets out that ‘at the point when transport eligibility is considered, the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one. For most cases this will be during the normal school admissions round when places are allocated. A smaller number of cases will need to be considered during the course of the school year eg, as a result of families moving to a new area’.

The Council’s Policy

15. The Council’s policy sets out that where a parent or carer chooses a school for the child but there is a qualifying school nearer to home where he or she could attend then travel assistance is not available based on distance. If an application for travel assistance is not approved the Council offers a right of appeal. The Council operates a two-stage appeal process. At stage one the appeal is a review by a Manager who will notify the parent or carer of the outcome within 10 working days of receipt of the appeal form.
16. If the parent or carer remains dissatisfied the appeal moves to stage two where it will be reviewed by the Council’s Education Awards (Review) Sub-Committee). A decision will be made within 30 working days of receiving the stage two request.

What happened

17. In late October 2019, in the normal admissions round, Ms X applied to the Council for a year 7 place for her child. She listed six preferences and in early March 2020 was offered her first choice. Shortly after Ms X put in a late change of preference. In June 2020 Ms X’s child was offered a place at her fifth-choice school on the revised list of preferences. This school is over three miles from their home address. In June 2020, Ms X applied for school transport.
18. In September 2020 the Council refused the request on the basis there were nearer schools with places available at the time Ms X applied. Ms X appealed against this decision. Ms X said there was no evidence there were nearer schools with places available at that time. She also advised she was in receipt of maximum working tax credit.
19. In November 2020 Ms X complained to us about the Council’s decision to refuse school transport and the delay in holding the appeal.
20. The Council responded to Ms X’s appeal at stage one of its appeal process in April 2021. It apologised for the time taken to review her appeal. It explained that if someone chooses a school more than three miles walking distance from home then they must pay the travelling expenses. It confirmed there were three schools which had places available and which were closer to the home address. This meant Ms X’s child did not qualify for school transport, regardless of whether Ms X received maximum working tax credit. The letter set out Ms X’s right of appeal at stage 2 of the process.

Findings

21. Councils must apply their transport policy when deciding entitlement to transport assistance. They also have the discretion to consider exceptional circumstances and must have a review or appeal process by which to do so.
22. The Council is required to provide transport for eligible children to the nearest qualifying school. The Council refused Ms X’s application because her child is not attending the nearest qualifying school. There were nearer schools with places available and Ms X chose not to apply for these. Ms X explained she was on maximum working tax credit and queried whether there were nearer schools available at the time she applied. The Council responded to her appeal and provided the details of three nearer schools with places available at the time she applied. Therefore, Ms X’s child was not entitled to free school transport.
23. We are not an appeal body and cannot criticise a decision which was properly made. There was no fault in the way the Council applied its home to school transport policy and decided Ms X’s child was not automatically entitled to free school transport. If Ms X believes there are exceptional circumstances in her case it is open to her to request a stage 2 appeal hearing.
24. The Council delayed reaching a decision on Ms X’s application for home to school transport. Ms X applied in June 2020 and the Council did not reach a decision until September 2020. This delay was fault but did not cause a significant injustice as it provided its decision before the start of the school term. Ms X immediately appealed the decision. The Council did not review the appeal at stage 1 of its appeal process until April 2021, six months after Ms X submitted the appeal. This is fault, given the Council’s policy says it will carry it out within 10 working days.
25. The Council has already apologised for the delay and that is a sufficient remedy for any frustration this caused her. Without the delay Ms X would have received a stage 1 response sooner which correctly stated Ms X’s child did not automatically qualify for school transport as an eligible child. It remains open to Ms X to request a stage 2 appeal.

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Final decision

26. I have completed my investigation. There was fault leading to injustice. The Council’s apology was sufficient to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman