Summary: there is no fault in the Council’s consideration of Ms B’s stage 2 appeal against its decision to withdraw free home to school transport for her son

The complaint

1. The complainant, whom I shall refer to as Ms B, complains there was fault in the Council’s handling of the stage 2 appeal against the decision to withdraw home to school transport for her son. In particular she says the panel that considered the appeal:
1. was not independent or suitably experienced, failed to properly consider the appeal case and evidence Ms B put forward and the panel members had not walked the route in question;
2. wrongly relied on an inadequate route safety assessment that did not cover the entirely of the walking route, failed to consider the impact of flooding, poor weather and the overgrown and uneven nature of the path on the safety of the route, the amount of traffic using the road and the narrow width of some of the route; and
3. failed to properly consider the appropriateness of accompaniment on the walking route given her child is 14 years old.
2. Ms B says the withdrawal of transport has compromised the safety of her son and caused her and her son avoidable worry though I note that it seems that, at the moment, her son’s school is providing free transport on the route.

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The Ombudsman’s role and powers

3. 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)
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 discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and carefully considered all the information before reaching a draft decision on the complaint.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances.
8. 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.
9. 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’.
10. ‘Qualifying schools’ include community, foundation or voluntary schools and community or foundation special schools.
11. ‘Eligible children’ are defined in Schedule 35B of the Act and include:
• children living outside ‘statutory walking distance’ from the school (three miles for children between eight and 16); and
• 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.
12. The route the Council has to consider is the ‘the shortest route along which a child, accompanied as necessary, may walk safely’. This may include footpaths and other pathways as long as they are safe. Councils may set their own police is which determine the start and end points for measurements and the method it uses to calculate the distance eg a GIS mapping system. Statutory guidance says that councils should take a range of risks into account when considering the issue of safety including, for example, the presence of canals, rivers, ditches as well as traffic speed and field of vision.
13. In deciding whether a child can reasonably be expected to walk to school, (whether the issue is safety or disability), the question is whether they can do so if accompanied, and whether it is reasonable to expect a parent to accompany them. There may be good reason, such as a parent’s disability, why they should not be expected to. The statutory guidance says “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, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.” “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.”
14. The Council has a school transport policy which states it may provide travel assistance “If a pupil is attending the catchment or nearest school and is below walking distance…if the route has been assessed as unavailable and there is no other alternative route below the walking distance”.
15. The “Walking route assessment criteria” published on the Council’s website says that assessments will only be undertaken from a road safety perspective so consideration is only given to “danger relevant to traffic/highway conditions”. It also states it will generally only reassess a route if there have been substantial or significant changes.
16. The walking route assessment relevant to Ms B’s complaint was completed by the Council’s Senior Transport Co-ordinator in September 2018.
17. Local authorities are required to publish a complaints or appeals procedure as part of the transport policy statement. The Council’s transport policy states there is a two stage appeals process. At stage 1 a senior case officer reviews the original decision. At stage 2 an independent review panel considers written representations from the parent and officers within 40 days of the parent’s request and issues a written notification of the outcome within 5 days. The policy states the notification will set out:
• The nature of the decision reached;
• How the review was conducted;
• Information about other departments or agencies that were consulted as part of the process;
• What factors were considered;
• The rationale for the decision reached; and
• Information about the parent’s right to put the matter to the Local Government and Social Care Ombudsman’s office.
18. The statutory guidance says that independent panel members should be independent of the original decision-making process but are not required to be independent of the Council itself and should be “suitably experienced” – though this is at the Council’s discretion.
19. The Council’s policy confirms there is an appeals process where transport has been refused and that this can be used to challenge eligibility, distance measurements, and safety of the route. The appeals process comprises two stages: stage 1 where a senior officer in the transport team reviews the original decision and provides a written decision in 20 working days; and stage 2 where an independent panel will consider written and verbal representations and provide a written decision. The Council’s policy confirms the independent panel will be independent of the original decision-making process and will include a senior officer from the SEND assessment and planning service and representatives from the Transport Department and the Connected County and Access to Learning Departments.

What happened

20. Ms B’s home to school transport was withdrawn for her son. She appealed against this decision stating the identified walking route was not safe. As a result of a previous complaint to this office a stage 2 appeal was undertaken in February 2021.

The walking route safety assessment

21. This was completed by an assessor in September 2018 at 7.45am and was undertaken after recent rainfall. The report notes that the route was considered “available”.
22. The route covered was from the main road in the village in which Ms B lives to the road in which the school is located. The assessor noted that at the beginning of the route that the main road through the village “…is situated in an urban residential area…the estate has a number of side roads which lead to (the main road”. The assessor include a photograph of one of these side roads joining the main road. It included 44 photographs taken of the route during the assessment and details of accidents that had occurred on the route between 2013 and 2018: there were none involving pedestrians.
23. The route is described in the report with details of the speed limits and the availability of pavements including reference to their condition and width. The road crossing points are described including whether there are traffic lights, dropped kerbs and traffic islands and also assesses traffic visibility. The assessor noted for example crossing points on the route three times to ensure that there were sufficient gaps in the traffic to cross safely. One part of the route had an option of two different directions both of which are considered.
24. The notes of the panel’s discussion also refers to a report commissioned by the Parish Council about the route. The view in that report is noted to have been that a section of the route of just under a kilometer was “less comprehensive” than the rest of the route. But the Panel noted that the report did not conclude that this meant that part of the route was unsafe or not available to be walked.

Experience of the panel members

25. The Council says the Panel was made up of people who had no previous involvement in the case and comprised the following members:
• A Locality manager from the SEND planning and assessment service. The Council says he had previous experience of considering transport appeals at stages 1 and 2;
• A retired headteacher who has experience of chairing and sitting on independent admission appeals panels; and
• A road safety education officer from the Council’s Communities and Road Safety Service.

Consideration of the route

26. The Council accepts that the panel members did not walk the route in question but says that the panel was satisfied that the route assessor was experienced and his report included photographs taken along the route. The Council also says that the Parish Council’s report did not say the route was unsafe.
27. In relation to flooding on the route the clerks’ notes of the panel’s consideration of the appeal state that the members sought advice from the Council’s “Community Infrastructure Team” on the extent of the flooding in the area identified by Ms B.
28. The Council confirms the Panel was told that the lane had been closed because of flooding for three days since October 2019 (so in the previous 16 months) and said that there was a pump to remove water. The Panel notes state that the Panel members view on this was that when such flooding parents and other pedestrians should be encouraged to report these promptly so they can be sorted out, presumably by pumping the water away.
29. The route assessor’s safety report refers to width of pavements and condition of the pavements and also to vegetation at the time of his assessment. His view and the evidence in the photographs was put before the panel for consideration.
30. In relation to the visibility at junctions the clerk’s notes record that the panel considered all the photographs in the walking route assessment and was satisfied the information in the report and the photographs showed that there was adequate visibility at crossing points.
31. The panel addressed concerns raised in appeals that if 100 or more children were walking the route there would not be enough space on traffic islands or refuges for them all. The panel considered this but concluded that there were no grounds to believe that this number of pedestrians would be on the route at the same time and that it was more likely that people would be at different points of the route so would not all end up at the same point at the same time.
32. In relation to the amount and speed of traffic on the route the panel’s notes confirm that they looked at the evidence put forward about volumes of traffic as this had been disputed by appellants. The notes say the panel members were unable to confirm traffic volumes but were mindful of the Council’s assumptions that all road users would act reasonably and responsibly. I note that the route assessor has commented on traffic flow in his report, for example stating “There are sufficient gaps in the traffic flow to allow enough opportunities to cross safely…”. In addition no traffic accidents involving pedestrians had been identified between 2013 and 2018.
33. On the issue of whether a a child should be accompanied by a parent or other adult the Panel notes confirm that the members noted that DfE guidance states that “the general expectation is that a child will be accompanied where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so”. They also took account of Staffordshire’s home to school transport policy which states that “where parents are working … it is a parent’s responsibility for someone to accompany their child as they feel necessary. Although the children in these appeals are of secondary school age, parents can still accompany them if they feel necessary.
34. In relation to Ms B’s appeal the panel considered this and the notes state “The panel notes that her (Ms B’s) child is currently in year 9. The panel did not hear or see any evidence that her child or family had any exceptional circumstances which would mean that the assessed walking route was not available to her child, accompanied by a parent, as necessary”.

Was the Council at fault and did this cause injustice?

35. The membership of the independent appeal panel at stage 2 did not include those people it says will be involved in its policy but I have no grounds to believe that those on the panel lacked suitable experience or were not sufficiently independent. There is nothing in the statutory guidance which requires panel members to walk a route where the safety of the route is in question. In this case the panel members said they were satisfied that the route assessor was experienced and that his report included photographs taken along the route.
36. The walking route assessed appears to cover the route insofar as it covers the route from the main road at the end of Ms B’s road to the road where the school is situated. There are no grounds therefore for me to conclude that the assessed route did not cover the vast majority of the route that Ms B’s son would walk to school: it did not include the road on which the family lives but it seems unlikely that road would be included in those that she was concerned about as it appears to be a quiet residential road with pavements on either side. There are no grounds which persuade me that the route safety assessment was inadequate: it covered the route in question in detail providing relevant details about pavement availability , road crossings, traffic speed and supported the text with a large number of photographs taken on the route.
37. The safety assessment does not refer to flooding on the route but is not required to as its focus is on the condition of the highway. The panel did however consider information about this provided by the Infrastructure team. As a result if found that a part of the route had been flooded three times since 2019 but that the Council had access to a pump to clear such flooding when necessary. There is therefore evidence to suggest that the panel did consider the impact of flooding on the route.
38. The route safety assessor took over 40 photographs over the course of the route which demonstrate that there are pavements for the entirely of the route. These do not appear to be particularly overgrown or uneven from the see photographs and it does not appear that the panel considered they were. It is clear that some of the pavement are quite narrow but it seems clear that the panel would have been aware of this in the photographs and did not appear to consider this was a problem.
39. Ms B consider the panel did not properly consider the appropriateness of accompaniment on the identified walking route given her son’s age. The evidence provided in the form of the notes of the panel’s discussion does not support these concerns: these confirm that the panel had proper regard to the statutory guidance which states that “the general expectation is that a child will be accompanied where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so”. As I have stated above the statutory guidance also says “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, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.” The notes state that the panel was of the view that “Although the children in these appeals are of secondary school age, parents can still accompany them if they feel necessary”. It seems clear that the panel considered this point and that they were of the view that the route was safe, having considered the evidence, but also that it was not inappropriate for parents to accompany their children if they felt it was necessary. There is nothing to suggest that the panel considered accompaniment was necessary. The notes also show that the panel considered whether there were any exceptional circumstances which would affect the availability of the walking route but considered there was not. I can see that the panel had grounds to reach such a conclusion.
40. To conclude, there are no grounds which persuade me that there was fault in the panel’s consideration of Ms B’s appeal. I recognise that Ms B is dissatisfied with the outcome of the appeal but our role is to consider whether there was fault in the way that it reached its decision. There is no evidence of fault in the panel’s consideration.

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Final decision

41. There was no fault by the Council in its consideration of Ms B’s appeal for home to school transport at stage 2 of its transport appeals process.

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Investigator's decision on behalf of the Ombudsman