Summary: Mrs X complained the Council wrongly refused to provide free school transport for her daughter, D, from September 2020. The Council accepted it did not direct Mrs X to its policy so she was not aware she could make verbal representations during her appeal. The Council agreed to accept a fresh appeal from Mrs X and give her the opportunity to make verbal representations. The Council also agreed to amend the wording in its policy that requires appeals to always be made in writing.

The complaint

1. Mrs X complained the Council wrongly refused to provide free school transport for her daughter, D, from September 2020. She said the Council did not properly consider her exceptional circumstances and has treated D differently to her older sister. As a result, Mrs X said she had to pay for D’s transport herself. She wanted the Council to give D a free bus pass and refund her for the transport costs she had already paid.

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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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, 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 considered:
• the information Mrs X provided and discussed the complaint with her;
• the supporting information the Council provided;
• the relevant law, guidance and Council policy; and
• Mrs X’s and the Council’s comments on my earlier draft decision.
7. Mrs X and the Council had opportunities to comment on my draft decisions. I considered their comments before making a final decision.

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What I found

Home to school transport

8. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools. (Education Act 1996, 508B(1) and Schedule 35B)
9. 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);
• receive free school meals, or whose parents receive the maximum Working Tax Credit, for transport to one of the three nearest schools up to a distance of six miles.
10. The qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.
11. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

Statutory guidance on appeals

12. There is statutory guidance ‘Home-to-school travel and transport statutory guidance’ (‘the Guidance’), issued in July 2014. Councils must take account of the Guidance when setting their transport policies. The Guidance recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support:
• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.
13. The Guidance says the independent appeal panel should consider “written and verbal representations from both the parent and officers involved in the case”. Appeal panel members should be independent of the original decision-making process but do not have to be independent of the council.
14. The stage 2 decision notice should set out the decision, the information and factors considered, and the rationale for the decision. It should also include information about parents’ right to contact the Ombudsman if they consider there were flaws in the way the council considered their appeal.

Council policy

15. The Council’s ‘Education Transport Policy’ sets out who may qualify for help with transport under the legal criteria.
16. It says unless a parent meets the low-income criteria, it will not provide transport to a school if:
• there is any nearer school to the home for which a parent did not apply on the original admission application;
• there is a nearer available school which the parent listed as a lower preference on the original admission application; or
• the parent has rejected an offer of a place at any nearer school.
17. If someone meets the low-income criteria, the Council will provide transport for the three closest schools between two and six miles away.
18. It also allows for the Council to award transport where it considers there are exceptional circumstances. It must be satisfied the parents have shown there are social, medical, financial or personal reasons they cannot take the child to school themselves.
19. The Council has a two-stage transport appeals process:
• Stage 1 - consideration by an officer more senior than the previous decision maker.
• Stage 2 - a final decision made by an officer more senior than the officer that considered the first stage appeal.
20. The policy also says:

“Where a parent feels he or she is unable to fully and clearly make their case in writing at the second stage of appeal, they may request a telephone or in person appointment with the second stage decision maker to explain their case orally.”

“In all circumstances, there will still need to be a written appeal submitted by the parent (or their representative) as their grounds for reconsideration at the second stage of appeal.”

Equality act, reasonable adjustments and public sector equality duty

21. The Equality Act 2010 protects the rights of individuals and supports equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
22. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine listed protected characteristics. The Public Sector Equality Duty also sets out duties for such organisations to follow to stop discrimination. The ‘protected characteristics’ referred to in the Act include age and disability.
23. Indirect discrimination may occur when a person or service provider takes the same approach to decision making or service provision for everyone. This may then put people sharing a protected characteristic at a particular disadvantage.
24. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
25. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
26. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.
27. The Public Sector Equality Duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to do the following.

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.

28. The Duty means public authorities must consider equality and good relations when they develop policies and deliver services. They must also keep these issues under review.

What happened

29. Mrs X applied for a secondary school place for her daughter, D, in 2017. She named one school in her application, School A, at which D received a place.
30. At the time Mrs X applied for D’s school place, D’s older sister had attended School A for several years and received free school transport from the Council.
31. Mrs X also applied for free school transport for D in 2017, which the Council refused because Mrs X had not applied for a place at D’s closest school, School B.
32. D changed campuses at School A in September 2020 and Mrs X applied again for free school transport. Again, the Council refused this because D could have attended School B if Mrs X had applied for a place.
33. Mrs X appealed the Council’s decision. She told the Council:
• it was unfair to treat D differently to her older sister, who received free school transport when attending the same school;
• D attended School A because her friends and older sister were there, and she would suffer from anxiety if she had to attend School B;
• it would not be safe for D to walk to School B, because the route was not safe for D; and
• she could not afford to pay for D’s travel to school which had been made worse because she had recently been made redundant from one of her jobs.
34. In October and November 2020, the Council considered Mrs X’s appeal under both stages of its appeals process and decided:
• Mrs X only applied to School A and did not list School B on her application. Therefore, D did not qualify for free transport under its policy. In 2017, School B was undersubscribed so D would have got a place there if Mrs X had applied;
• D’s older sister got free school transport because the Council’s policy changed in 2015. Before this, the Council took into account school catchment areas. However, the new policy from 2015 made it clear the Council only considered the nearest suitable school, which for D was School B;
• although it understood Mrs X and D’s preference for attending School A, it did not consider this was an exceptional reason to provide free transport outside of its policy;
• if D attended School B, the Council could consider whether it was safe for D to walk to school. However, because Mrs X had not applied for School B, it could not consider the walk to School B; and
• although Mrs X had suffered a fall in her income, D would not qualify under the low-income policy because School A was more than 6 miles away.
35. Mrs X complained to the Ombudsman in April 2021.

My findings

36. The law says the Council must make suitable travel arrangements for eligible children to attend their qualifying school. In D’s case, the Council says her qualifying school was School B. There is no evidence to suggest that School B could not provide an education appropriate to D’s age, ability and aptitude. There is also no evidence D has any special educational needs.
37. Since D could have attended School B but Mrs X did not apply for a place there, D is not entitled to free transport under the law or the Council’s policy.
38. The Council’s school admissions leaflets from 2017 onwards tell parents they should make sure they understand the Council’s Education Transport Policy if free school transport is important. The leaflets explain the qualifying conditions for school transport and that school catchment areas are not taken into account. These were available to Mrs X when she applied for D’s school place, so I am satisfied the Council made this information available to Mrs X before she applied.
39. The Council considered Mrs X and D’s circumstances during the appeal process. It is not our role to decide if Mrs X’s or D’s circumstances are exceptional; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly.
40. The evidence shows the Council considered all the points Mrs X made in her appeal and whether it should make an exception to its policy. In its final email to Mrs X the Council explained the evidence it had considered and why it decided the circumstances did not justify making an exception. There is nothing to suggest the Council ignored relevant evidence when making its decision.
41. The Ombudsman has accepted, in earlier investigations, that the Council had provided satisfactory reasons for departing from the statutory guidance and was not at fault for having a senior officer review rather than an appeal panel at the second stage.
42. However, the Guidance says councils should consider verbal representations during the appeals process. This is particularly important where decisions are based on discretion. The Ombudsman published a Report (19008896) in August 2020 in which we set out our view that verbal representations are important, particularly where complainants might struggle to explain their case in writing.
43. Although the Council’s policy says parents can make verbal representations, there is no evidence the Council drew this to Mrs X’s attention or directed her to the policy, so that she was aware of her right to speak to the decision maker.
44. We considered this issue in another complaint (20002063) in which the Council agreed to signpost complainants to its Education Transport Policy, which includes information about appeals, in its stage one appeal decisions. It has done this since March 2021. Since Mrs X’s appeal was before this date, the Council accepts it did not signpost her to the policy in its stage one decision.
45. I do not know if verbal representations from Mrs X would have made a difference to the decision. But given Mrs X was arguing she had exceptional circumstances, and so the decision was based on discretion, there will always be some doubt about this. The Council has agreed to consider a fresh stage two appeal from Mrs X and offer her an appointment to speak with the decision maker as part of the appeal.
46. The Council’s policy says that:

“In all circumstances, there will still need to be a written appeal submitted by the parent (or their representative) as their grounds for reconsideration at the second stage of appeal.”

47. I accept the Council’s arguments that there are good reasons to expect appeals to generally be made in writing, including:
• the suggested process in statutory guidance includes appeals being made in writing;
• appeals processes have a degree of formality attached to them; and
• having a record of the grounds of appeal promotes fairness and provides an audit trail.
48. However, the phrase “in all circumstances” has, essentially, the same meaning as “with no exceptions” and implies the Council will never consider an appeal unless something is provided in writing. While the Council has told us it would make reasonable adjustments for those with a protected characteristic which prevented them from appealing in writing, this is not mentioned anywhere in the Council’s policy.
49. I am satisfied that a reasonable reading of the sentence, as it is written in the Council’s policy, could cause someone to believe that if they cannot submit an appeal in writing and do not have someone who can do this for them, then they cannot appeal. My provisional view is that the absolute wording of this policy both risks discouraging appeals from those who cannot write and conflicts with the Council’s duties under the Equality Act; which is fault.

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Agreed action

50. Within one month of my final decision, the Council will offer Mrs X another stage two appeal including the opportunity to speak to the second stage decision-maker by telephone.
51. Within three months of my final decision, the Council will review the wording of its Education Transport Policy to make it clear that, while it normally expects appeals to be made in writing, there are circumstances in which it will consider appeals by other means.

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Final decision

52. I have completed my investigation. The Council accepts it did not direct Mrs X to its policy so she was not aware she could make verbal representations during her appeal. The Council agreed to accept a fresh appeal from Mrs X and give her the opportunity to make verbal representations. The Council will also amend the wording in its policy that requires appeals to always be made in writing.

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Investigator's decision on behalf of the Ombudsman