Summary: The Ombudsman found fault by the Council on Mr F’s complaint about the way it dealt with his appeal against the decision not to provide his son with free home to school transport. This is because it failed to: clearly set out and comply with the statutory guidance requirements about the two-stage appeal process; allow him to verbally present submissions; consider if the nearest school had available places; consider the need to support parental faith school choices; explain the decision. The agreed action remedies the injustice caused.

The complaint

1. Mr F complains when he challenged the Council’s decision not to provide his son with free home to school transport, it failed to:
1. Properly consider his appeal submissions;
2. Allow him the chance to present his case in person; and
3. Properly explain its decision to refuse his appeal.
2. As a result, it will cost him financially if he must pay for the bus travel to and from school each day.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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Home to school travel and transport guidance (statutory guidance for local authorities: July 2014)

5. This is statutory guidance issued by the Department for Education which means councils have a duty to have regard to it when carrying out their duties connected to home to school travel and transport.
6. Under sections 508B and 508C of the Education Act 1996, councils must ensure suitable travel arrangements are made, where necessary, to facilitate an eligible child’s attendance at school.
7. Schedule 35B of the 1996 Act defines eligible children. These are children of compulsory school age (5-16) in its area for whom free travel arrangements will be required. Local authorities are required to provide free transport for all pupils of compulsory school age if their nearest suitable school is beyond 2 miles (for those below the age of 8) or beyond 3 miles (for those aged 8-16). (paragraph 16)
8. The nearest suitable school is a ‘qualifying school’ which includes community, foundation, or voluntary schools, for example (paragraph 29).
9. Parents do not have a specific right to have their children educated at a school with a religious character or a secular school, or to have transport arrangements made by their local authority to and from such a school. The Secretary of State believes wherever possible, local authorities should ensure transport arrangements support the religious or philosophical preference parents express. In many cases, these schools may be more distant and, therefore, the provision or transport and/or training, and the avoidance of unreasonable expenditure are encouraged. (paragraph 40)
10. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (paragraphs 54-55)
11. It recommends councils adopt the following appeals process:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us. (Annex 2)

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Council’s Home to Mainstream School Transport Policy 2019/20

12. The child’s nearest qualifying school for a child is usually: the one closest to their home; where there is a place available or where a place could have been offered at allocation stage of school admissions had it been requested. (paragraph 4c)
13. When deciding if a child is entitled to free transport, it will not take account of whether the child currently has family members at the school. (paragraph 4r2)
14. If a parent considers the Council incorrectly applied the law or there are exceptional circumstances it was previously unaware of, they may submit a written appeal. (paragraph 9)

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How I considered this complaint

15. I considered all the information Mr F sent, the note I made of the telephone conversation I had with his partner, Ms G, and the Council’s response to my enquiries, a copy of which I sent him. I did not send him a complete copy because some of it contains information about third parties which needs to remain confidential to them. I also considered our previous decision against the Council made in August 2021 (case 20 008 430).
16. I sent a copy of my draft decision to Mr F and the Council. I considered their responses.

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What I found

17. Mr F says his son attends the preferred Catholic school with all his friends who have given him support following difficult personal circumstances. Recently, his son moved from Year 7 to Year 8 in the school and had travelled to school as part of a car sharing arrangement with other parents.
18. When the car share ended, Mr F contacted the Council and applied for free home to school transport. The Council refused his application on the ground the nearest suitable school was closer. It told Mr F the preferred school is 6.76 miles from their home but, there was a nearer school he could have gone to instead. This was 3.68 miles away.
19. Mr F appealed the decision to the Student Support Appeals Committee (the committee). He argued the nearest school is not a Catholic school and is still more than 3 miles away. Had his son gone there, he would have qualified for free home to school transport anyway. The committee refused his appeal.

Complaint a): Consideration of appeal submissions

20. In the application form it sent Mr F, the Council explained an Appeal Schedule (the schedule) is prepared which has 2 parts:

• Part one: shows a summary of the appellant’s case; and
• Part two: is completed by a manager who outlines the reason why the Council cannot help.

21. Both parts of the schedule go to the committee. The committee decides whether the circumstances justify departing from the Council’s home to school transport policy and the law. Before the appeal, a copy of the schedule is sent to the appellant who must sign and return it unless they disagree with it. Only when the appellant agrees the schedule does it get sent to the committee.
22. The flow chart it sent him when he sent his appeal, sets out the 2-stage process. It explained at stage 1 a senior officer reviews the original decision and sends out a written notification of the outcome. This includes a detailed reasoning of the decision made and notice about going to stage 2. When the parent challenges the senior officer’s decision, the committee considers the appeal.
23. The committee heard his appeal in January 2021.

Analysis

24. I found fault on this complaint. In reaching this decision, I make the following findings:

Stage 1 process:

1. The information sheet it sent with the appeal application form did not clearly set out the two stages of the statutory appeal process. On the first page it states if the applicant is refused home to school transport, they can appeal the decision within 20 days which is heard by the committee. On page 2 it explains the parts of the schedule but, does not clearly explain the two-stage process. I consider the explanation about the appeals process in this document is unclear and does not follow the statutory guidance.
2. When he completed the appeal form, the Council sent Mr F an email a month before the hearing along with the schedule. It advised him of the date of the hearing and sent him a process flow chart. The email said his request was considered by a member of the team who did not consider the initial application. This officer, who was not identified as being senior, decided it had been correctly considered. No reason is given for this decision. No information is given about who did the review, the nature of the decision, what was taken in to account, and what the rationale for the conclusion reached was.
3. Details of the officer’s comments and review information are given in the schedule. Again, the officer is not identified, the comments are undated and contains no identifiable decision, with reasons for the decision. I am not satisfied this email and the schedule complied with the statutory guidance. An applicant reading it would be forgiven for assuming it is part of the Council’s case to the committee. I am satisfied these failures amount to fault.
4. The flow chart sent to Mr F states a senior officer reviews the original decision and sends the parents written notification of the outcome including detailed reasoning for the decision made. I have seen no evidence showing this was done.
5. I am satisfied these failures caused Mr F injustice. He has the distress of not knowing whether the appeal was properly processed and decided.

Stage 2 process:

6. I am also found fault at stage 2. This is because the appeal hearing failed to follow the requirements of the statutory guidance. The Council failed to give Mr F the opportunity to verbally present his case to the committee members. This is fault.
7. I am also satisfied the Council failed to show it considered, at either stage 1 or 2, whether the nearest school had places available had Mr F’s son applied for a place there during the normal admission round. There is no evidence showing the Council checked to see if he could have received a place there had he applied. This is fault.
8. Nor have I seen evidence of the Council considering Mr F’s choice of his son going to a faith school and the statutory guidance. This is because the guidance says, where possible, councils should ensure travel arrangements support parents’ religious preferences. This failure is fault.

Complaint b): Not allowed to presenting case

25. Mr F is unhappy the Council would not allow him to make verbal representations to the committee, either in person or online.
26. The appeal application form sent to him states it is not possible for him, or any representative, to attend the hearing in person. All the evidence he wished to rely on had to be sent with this form.
27. In response to my enquiries, the Council sent a copy of its ‘Student Support Appeals Committee Induction’ (11 June 2021). This states the committee is ‘paper based so no attendees’.

Analysis

28. I found fault on this complaint. I am satisfied the Council failed to comply with the statutory guidance which states it should have an appeal process which allows parents to make written and verbal representations. The Council’s policy only refers to written appeals.
29. I am satisfied this caused Mr F an injustice because he has the distress of not knowing whether the outcome of the appeal might have differed if he had addressed the committee members verbally, either in person or online.

Complaint c): Failure to explain committee decision

30. Four days after the appeal, Mr F received a letter from the committee clerk explaining it refused his appeal. The letter said the committee noted:

• His exceptional reasons put forward in support of the appeal; and
• The officer’s comments and review information which said eligibility depends on a pupil’s nearest school as it has no duty to provide transport where pupils do not attend their nearest school or academy. It also explained government guidance does not give parents a specific right to have their child educated at a faith school or secular school or to have transport arrangements made by the Council to and from such a school.

31. The letter explained the committee refused the appeal because, ‘the reasons put forward in support of the appeal did not merit the Committee exercising its discretion to make an exception and award transport assistance that is not in accordance with the Home to Mainstream School Transport Policy for 2020/21’. This mirrored the decision recorded in the minutes of the committee hearing.
32. Notes made by the clerk of the hearing state, ‘The Committee felt there was no sufficient reason to award appeal for bus pass to the family’.

Analysis

33. I found fault on this complaint. This is because the decision explained what the decision was but failed to explain how the committee reached it. This breaches the statutory guidance and amounts to fault.
34. This caused injustice to Mr F as this failure means he has the distress of not knowing if the committee properly considered his appeal when reaching its decision.

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Agreed action

35. I considered our guidance on remedies.
36. I also considered the action the Council agreed to take on our investigation of a complaint we decided on 25 August 2021 (reference 20 008 430).
37. The Council agreed to carry out the following actions within 4 weeks of the final decision on this complaint:
1. Send Mr F a written apology for failing to: set out clearly the two stage process to Mr F in information it sent him; comply with the statutory guidance requirements at the first stage of the process; comply with the guidance at stage two by not allowing him to make verbal representations; consider whether the nearest school had places at the normal admission round; demonstrate it considered whether it needed to show support of his choice of faith school with travel; give reasons in the decision letter showing how the committee reached its decision;
2. Arrange a rehearing of his appeal with a new committee which gives him the opportunity to make verbal representations to its members; and
3. Consider the above faults identified during the review it already agreed to do following our previous investigation.
38. Following our previous investigation, the Council agreed to do the following within 3 months of the final decision on the case:

• Initiate a review of its school transport appeal procedure to ensure it meets the requirements of the statutory guidance; and
• Introduce a pilot scheme to offer appellants with similar cases the opportunity to provide verbal representations to the committee.

39. The Council also agreed to provide its amended school transport policy within 12 months of that final decision, taking account its impact on resources, training, consultation, and Cabinet approval.

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Final decision

40. I found fault on Mr F’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman