Summary: the Council refused Mr and Mrs P’s request for school transport for their daughter, G, because there is a safe walking route. Mr and Mrs P have not had an opportunity to challenge the Council’s decision the route is safe. The Council has agreed share the safety assessment with Mr and Mrs P and invite them to make a fresh appeal.

The complaint

1. Mr and Mrs P complain following their unsuccessful appeal against the Council’s decision not to provide free home to school transport for their daughter. They do not consider the proposed walking route to be safe.

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The Ombudsman’s role and powers

2. 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)
3. If we find fault, we must also consider whether it 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)
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:
• information provided by Mr and Mrs P;
• information provided by the Council, including the papers from Mr and Mrs P’s appeal.
6. I invited Mr and Mrs P and the Council to comment on my draft decision.

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What I found

7. Mr and Mrs P’s daughter, G, is a pupil at a local primary school. The school is approximately 1.5 miles from Mr and Mrs P’s home. Mr and Mrs P asked the Council to provide school transport as Mrs P does not drive and Mr P often works away from home. They do not consider the route safe for Mrs P and G to walk to school. The Council refused.
8. Mr and Mrs P appealed the Council’s decision. The Council conducted a review (stage 1) and an appeal (stage 2). The Council did not uphold Mr and Mrs P’s appeal because it considers there is a safe walking route to the school. Mr and Mrs P do not agree the route is safe and complained to the Ombudsman.

Home to school transport

9. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
10. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance; or
• cannot reasonably be expected to walk because of the nature of the route.

(Education Act 1996, Schedule 35B)

11. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
12. The nearest 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.
13. Statutory government guidance recommends councils adopt a two-stage appeals process for parents who wish to challenge a decision about their child’s eligibility for school transport. Stage one is a review by a senior officer; stage two is a review by an independent appeal panel.
14. The guidance says parents can challenge a decision on the basis of their child’s entitlement, the distance measurement, route safety and other exceptional circumstances. (Home to school travel and transport guidance. Statutory guidance for local authorities, Department for Education, July 2014)
15. We would expect the Council to follow statutory guidance unless it has good reason not to. Any departure from the guidance should give parents at least the same opportunities to challenge the Council’s decision.

Consideration

16. G attends the nearest qualifying school which is less than two miles from her home. She is entitled to free home to school transport if she cannot reasonably be expected to walk to the school because of the nature of the route.
17. The Ombudsman does not decide whether the walking route is safe. This is the Council’s job. My role is to check the Council made its decision properly.
18. Mrs P submitted an online appeal on 24 July 2021. The reason for her appeal was the safety of walking route to the school. Mrs P explained that she does not drive and Mr P often works away from home. She said the route is along country roads without pavements. She also has a younger child.
19. The Council responded at stage 1 on 26 July 2021. It said, “The route has previously been looked at by the Education Transport Appeals Committee in 2019 [and] was deemed safe for a child pedestrian accompanied as necessary.”
20. The Council invited Mrs P to submit an appeal at stage 2. It offered her a choice between the Education Transport Appeals Committee, where Mrs P could make representations in person, and the Transport Officer Panel. The Committee was not due to meet until September 2021. Mrs P chose the Panel. She sent an email which explained why she considered the walking route unsafe.
21. The Council said, “[T]he Panel will not be able to consider the safety of the route between [Mr and Mrs P’s village] and [the school] as, previously advised, this was assessed by the Education Transport Appeals Committee in 2019 and deemed to be not dangerous.” The Council invited Mrs P to submit “exceptional reasons” the Council should provide transport.
22. The Panel considered Mr and Mrs P’s appeal on 5 August and the Council wrote on 12 August to explain the Panel’s decision. The letter said, “The safety of the route was assessed by the Education Transport Appeals Committee in 2019 for an accompanied child and has available paths, with good visibility and suitable step offs in addition to accessible rights of way.” The Panel did not uphold Mr and Mrs P’s appeal.
23. The Council has not considered Mr and Mrs P’s concerns about the safety of the route. Statutory government guidance says it should. It turns out Mr and Mrs P could have challenged the safety of the route if they had chosen the Committee rather than the Panel to hear their appeal at stage 2. Although the Council’s policy makes this clear, it was not spelled out in the Council’s correspondence with Mr and Mrs P at the time.

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Agreed action

24. The Council has agreed to invite Mr and Mrs P to make a fresh appeal to the Education Transport Appeals Committee which can consider their concerns about the safety of the route. It will share the safety assessments of the route with Mr and Mrs P before the appeal.
25. The Council has agreed to do this within one month of my final decision.
26. The Council has already reviewed its procedures and agreed to share safety assessments with parents so they are able to challenge route safety decisions in the future. I welcome the Council’s response.

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Final decision

27. The Council accepts my recommendations so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman