Summary: Ms M complains the Council refused her application for home to school transport for her son, B, because she did not list the nearest school as her first preference when applying for places. Ms M complains the Council’s decision, and its policy, are unfair. There is no evidence of fault to justify further investigation by the Ombudsman. Ultimately, it would be for a Court to decide whether the Council’s approach complies with legislation and government guidance. No amount of investigation by the Ombudsman is likely to lead to a different outcome.

The complaint

1. Ms M complains the Council refused her application for home to school transport for her son, B. The Council refused Ms M’s application in line with its school transport policy because she did not list the nearest school as her first preference when applying for secondary schools. The Council refused Ms M’s appeal because she did not demonstrate any exceptional circumstances.
2. Ms M complains the Council’s decisions, and its policy, are unfair. She says the nearest school was oversubscribed and B would not have been allocated a place. She believes B attends the next nearest school.

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The Ombudsman’s role and powers

3. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We may decide not to continue with an investigation if we decide:
• there is not enough evidence of fault to justify investigating, or

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider the complaint.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I have considered:
• information provided by Ms M; and
• information provided by the Council, including its school transport policy and the papers from Ms M’s school transport application and appeal.
5. I invited Ms M and the Council to comment on my draft decision.

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What I found

6. All secondary schools in Leicestershire are academies. The Council has no control over admissions to academies. Academies set their own admission and oversubscription criteria.
7. Ms M secured a place for B at her first-choice secondary school. The school is over three miles from her home. Ms M applied for transport. The Council refused her application and subsequent appeal because Ms M did not follow the Council’s transport policy and list her nearest secondary school as her first preference when applying for places for B, or demonstrate any exceptional circumstances.
8. Ms M thinks the Council’s policy is unfair. She says the nearest school is heavily oversubscribed and she believes B would not have secured a place if she had applied. She says all the places are usually allocated to children living in the school’s catchment area. Ms M does not live in the school’s catchment area. She believes B attends the nearest school ‘with places available’ – which is the requirement in the government’s guidance – and is therefore entitled to school transport.
9. Ms M says the Council provides transport for other children from her village who go to the same school as B but whose parents followed the Council’s transport policy and applied (unsuccessfully) to the nearest school as their first preference. Ms M thinks this is unfair.

Home to school transport

The law

10. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
11. Ms M’s complaint concerns one category of eligible children: those who live outside walking distance from school.
12. The law says a child is eligible for school transport if,
1. he is of compulsory school age and is a registered pupil at a qualifying school which is not within walking distance of his home,
2. no suitable arrangements have been made by the local authority for boarding accommodation for him at or near the school, and
3. no suitable arrangements have been made by the local authority for enabling him to become a registered pupil at a qualifying school nearer to his home.

(Education Act 1996, schedule 35B, paragraph 6)

13. Qualifying schools include community, foundation and voluntary schools and academies. (Education Act 1996, schedule 35B, paragraph 15)

Government guidance

14. Government guidance says councils are required to provide transport if a child’s nearest suitable school is beyond 2 miles (if below age 8) or 3 miles (if aged between 8 and 16).
15. The guidance says the nearest suitable school is ‘taken to mean the nearest qualifying 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’.
16. The guidance says that at the point 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. (Home to school travel and transport guidance. Statutory guidance for local authorities issued by the Department for Education, July 2014)

The Council’s home to school transport policy

17. The Council’s policy says, “During the normal admissions round, where parents express a preference for more than one school and in order to be eligible for transport to a Leicestershire school over the qualifying distance the preferences must include all the nearest Leicestershire schools to the home, listed in order of distance.”

Consideration

18. The crux of Ms M’s complaint is whether B attends the nearest suitable school with places available.
19. The law says councils must provide transport unless it has made ‘suitable arrangements […] for enabling him to become a registered pupil at a qualifying school nearer to his home.’
20. Government guidance says the ‘prospect of being able to secure a place in an alternative (usually nearer) school must be a real one.’
21. Neither the law nor government guidance say how councils should assess whether this is the case.
22. The Council has developed a procedure parents can follow to ensure their children secure a place at the nearest suitable school if they wish to guarantee school transport. The Council’s procedure works irrespective of the choices of other parents or the admission criteria of the schools, all of which are outside its control. The Council tells all parents about its transport policy when they apply for school places.
23. Ms M did not follow the Council’s procedure.
24. Ms M listed her nearest school as her third preference. This means she was unlikely to be offered a place. Ms M did not want B to attend the nearest school.
25. Ms M believes the Council’s requirement that parents should apply to the nearest schools, and list their preferences in order of distance, is wrong. Ms M believes she is being penalised for failing to follow the Council’s procedure, even though she believes the outcome would have been the same.
26. It is for the Council to decide how to fulfil the requirements of the legislation and government guidance. The Council has proposed arrangements to enable children to become registered pupils at the nearest school to their home.
27. Ms M disagrees with the Council’s arrangements. Instead, she wants the Council to evaluate whether B would have secured a place at the nearest school if she had applied as her first preference. This is not necessarily a straightforward matter, particularly where the Council is not the admission authority as is the case with academies.
28. Ms M’s approach would require the Council to evaluate the likely outcome of action that she herself has not taken, namely applying for a place at the nearest school as her first preference. Ms M believes that applying to the school would have been futile, although she would have had nothing to lose if she had done so. Ms M did not, in fact, want B to attend the school.
29. I have given the matter very careful consideration, and I can see advantages and disadvantages of the approach taken by the Council and the approach implied by Ms M. I have not, however, identified any reasons to find fault with the approach adopted by the Council. Ultimately, it would be for a Court, not the Ombudsman, to decide whether the Council’s approach complied with legislation and government guidance. No amount of investigation by me is likely to lead to a different outcome, and I cannot achieve the outcome Ms M wants. Therefore I propose that I discontinue my investigation.

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Final decision

30. There is no evidence of fault in the way the Council decides eligibility for school transport to justify further investigation by the Ombudsman. Ultimately, it would be for a Court to decide whether the Council’s policy complies with legislation and government guidance. Further investigation will not lead to a different outcome. I have, therefore, discontinued my investigation.

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Investigator's decision on behalf of the Ombudsman