Summary: Mr X complained the Council failed to properly consider his appeal for home to school transport for his two children. There was no fault in the way the Council applied its policy or considered the appeal.

The complaint

1. Mr X complained the Council failed to properly consider his appeal for home to school transport for his two children, to School A. As a result, Mr X is having to fund the transport himself.

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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 Mr X and have discussed the complaint with him on the telephone.
6. I have considered the appeal documents and further information provided by the Council.
7. I gave Mr 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. Paragraph 22 of the Home to School Travel and Transport statutory guidance states ‘the measurement of the statutory walking distances is not necessarily the shortest distance by road. It is measured by the shortest route, along which a child, accompanied as necessary, may walk safely. As such the route measured may include footpaths, bridleways and other pathways as well as recognised roads’.
14. Paragraph 24 states ‘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 it will provide funded transport for children attending their nearest suitable school where the distance from home to school is over the statutory walking distance. It sets out that distances are measured by the shortest available walking route which includes public rights of way. The Council uses Ordnance Survey Mastermap Highway Network to measure all distances.
16. The policy sets out that catchment areas only apply in respect of school admission priorities and do not have any influence in respect of the legal requirements for provision of school transport.
17. The Council provides an on-line ‘nearest school checker’ to enable parents to find out their nearest suitable school for transport purposes by submitting their postcode. The Council’s website sets out that ‘we strongly recommend that you check which school is your nearest suitable school …before you apply. This is because this might not be your catchment area school and could affect any entitlement you may have for Suffolk County Council funded school travel if you live over the statutory walking distance’.
18. The Council offers a two-stage appeals process. Stage one involves a review by a senior officer. The stage two appeal is heard by the Transport Officer Panel or, if the parent wishes to make verbal representations, by the Education Transport Appeals Committee.

What happened

19. In the normal school admissions round, the Council allocated Mr X’s two children places at their first choice primary school which is their catchment area primary school (school A). School A is over 3 miles from their home, so Mr X applied for school transport.
20. The Council refused Mr X’s application as it said school A was not the nearest school for school transport purposes. Mr X appealed the decision. His case included that school A was the nearest school by road and the children had an older sibling at the school who did receive school transport. All the children in the village attended school A and to attend elsewhere would isolate his children from the group. If his children were to attend school B the Council would need to fund a new school bus route.
21. The Council’s stage one response set out that school B was the nearest school to the home address and so the children were not entitled to school transport. It acknowledged M X’s older child received funded transport but said this was awarded as part of a previous school travel policy and so still applied as a transitional arrangement. It set out how Mr X could apply for a spare seat on school transport at a cost of £310 a term. It set out Mr X's right to go to stage two of the appeal process.
22. Mr X asked to go to stage two and did not request to make verbal representations. In his stage two appeal Mr X said they applied to school A as that is where the Council had placed their eldest child when they moved to the area. The siblings were close and wished to attend the same school. The distance to both school A and B was over 3 miles and the bus route to school B was longer than to school A as the bus could not use the walking route. He set out the difficulties Mrs X had driving their vehicle in the tight country lanes and that he was not always available to complete the school run. In addition, because of the existing bus service, the cost of sending the children to school A would be minimal as opposed to the cost of setting up a new service to school B as there was not one at present.
23. Mr X said the Council’s use of the walking route when the distance to the school was over two miles did not make sense. He considered it was common sense to use the route transport would take to measure distances.
24. The Council’s Transport Officer Panel considered Mr X’s appeal. In the decision letter it noted the distances to both schools and that Mr X’s eldest child attended school A. It noted places were available at school B, had Mr X applied to it, and that transport would have been provided. It set out the consultation the Council undertook when it introduced its transport policy in September 2019 and that parents had to tick a box on their admission application to confirm they had read and understood the impact of the changes to the transport policy. It referred to its online nearest school checker.
25. It noted Mrs X was not comfortable driving the local country roads, that Mr X was not always able to assist with transport and Mr X’s desire for the children to attend the same school as their sibling. However, it did not find any reason to provide transport on an exceptional basis and rejected the appeal. Mr X remained unhappy and complained to us.

Findings

26. The law does not specify how a council should determine which is the nearest school. The Council’s policy sets out that it calculates the nearest suitable school by measuring the shortest available walking route which includes public rights of way. The Council is entitled to take this approach.
27. We expect councils to explain their policies clearly to enable parents to make informed decisions when applying for schools about whether their child might be eligible for school transport.
28. The Council’s website sets out how it calculates the nearest suitable school for school transport purposes. It also provides an online checker, so parents are aware of the nearest suitable school for transport purposes when they apply for a school place.
29. The Council’s decision to refuse school transport was in line with its school transport policy which is published and clearly set out on line. The Council was not at fault.
30. The Ombudsman is not an appeal body. Our role is to consider whether there was fault in the way the appeal panel reached its decision.
31. The Council considered Mr X’s appeal at stages one and two of its appeals procedure. It decided the Council had properly applied its policy and there were no exceptional reasons to award school transport. The stage two appeal decision letter shows the Panel considered Mr X’s arguments and the information he provided in reaching its decision. The Council has also confirmed school B was not oversubscribed and Mr X’s children would have received place, and therefore free school transport, had they applied. There is no evidence of fault in the way the Council reached its decision to refuse the appeal.

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Final decision

I have completed my investigation as there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman