Summary: there was no fault by Staffordshire County Council in relation to its consideration of Ms B’s appeal against the decision to refuse home to school transport for her children

The complaint

1. The complainant, whom I shall refer to as Ms B, complains about the Council’s decision to withdraw home to school transport. She says:
1. The Council failed to consider correct information regarding traffic counts on the identified walking route;
2. The appeal panel that considered the stage 2 appeal was not sufficiently independent and did not visit or walk the route;
3. The council wrongly excluded the group of parents concerned about the identified walking route from the appeals process.
2. The injustice Ms B claims as a result of these alleged faults is that her child was denied free home to school transport.

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The Ombudsman’s role and powers

3. 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)
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 discussed the complaint with Ms B and considered the written information she provided with her complaint. I also considered information provided by the Council on the appeal. I looked carefully at all the evidence provided before reaching a draft decision on the complaint.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances.
8. 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.
9. 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’.
10. ‘Qualifying schools’ include community, foundation or voluntary schools and community or foundation special schools.
11. ‘Eligible children’ are defined in Schedule 35B of the Act and include:
• children living outside ‘statutory walking distance’ from the school (three miles for children between eight and 16); and
• 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.
12. The route the Council has to consider is the ‘the shortest route along which a child, accompanied as necessary, may walk safely’. This may include footpaths and other pathways as long as they are safe. Councils may set their own policies which determine the start and end points for measurements and the method it uses to calculate the distance eg a GIS mapping system. Statutory guidance says that councils should take a range of risks into account when considering the issue of safety including, for example, the presence of canals, rivers, ditches as well as traffic speed and field of vision.
13. The Council has a school transport policy which states it may provide travel assistance “If a pupil is attending the catchment or nearest school and is below walking distance…if the route has been assessed as unavailable and there is no other alternative route below the walking distance”.
14. The “Walking route assessment criteria” published on the Council’s website says that assessments will only be undertaken from a road safety perspective so consideration is only given to “danger relevant to traffic/highway conditions”. It also states it will generally only reassess a route if there have been substantial or significant changes.
15. The walking route assessment relevant to Ms B’s complaint was completed by the Council’s Senior Transport Coordinator in September 2018.
16. Local authorities are required to publish a complaints or appeals procedure as part of the transport policy statement. The Council’s transport policy states there is a two stage appeals process. At stage 1 a senior case officer reviews the original decision. At stage 2 an independent review panel considers written representations from the parent and officers within 40 days of the parent’s request and issues a written notification of the outcome within 5 days. The policy states the notification will set out:
• The nature of the decision reached;
• How the review was conducted;
• Information about other departments or agencies that were consulted as part of the process;
• What factors were considered;
• The rationale for the decision reached; and
• Information about the parent’s right to put the matter to the Local Government and Social Care Ombudsman’s office.
17. The statutory guidance says that independent panel members should be independent of the original decision-making process but are not required to be independent of the Council itself and should be “suitably experienced” – though this is at the Council’s discretion.
18. The Council’s policy confirms there is an appeals process where transport has been refused and that this can be used to challenge eligibility, distance measurements, and safety of the route. The appeals process comprises two stages: stage 1 where a senior officer in the transport team reviews the original decision and provides a written decision in 20 working days; and stage 2 where an independent panel will consider written and verbal representations and provide a written decision. The Council’s policy confirms the independent panel will be independent of the original decision-making process and will include a senior officer from the SEND assessment and planning service and representatives from the Transport Department and the Connected County and Access to Learning Departments.

What happened

The walking route safety assessment

19. This was completed by an assessor in September 2018 at 7.45am and was undertaken after recent rainfall. The report notes that the route was considered “available”.
20. The route covered was from the main road in the village in which Ms B lives to the road in which the school is located. The assessor noted that at the beginning of the route that the main road through the village “…is situated in an urban residential area…the estate has a number of side roads which lead to (the main road”. The assessor included a photograph of one of these side roads joining the main road. It included 44 photographs taken of the route during the assessment and details of accidents that had occurred on the route between 2013 and 2018: there were none involving pedestrians.
21. The route is described in the report with details of the speed limits and the availability of pavements including reference to their condition and width. The road crossing points are described including whether there are traffic lights, dropped kerbs and traffic islands and also assesses traffic visibility. The assessor noted for example crossing points on the route three times to ensure that there were sufficient gaps in the traffic to cross safely. One part of the route had an option of two different directions both of which are considered.
22. Appendix 2 of the assessment provides details of traffic volumes at different parts of the route at different times of the day.

Experience of the panel members

23. The Council says the Panel was made up of people who had no previous involvement in the case and comprised the following members:
• A Locality manager from the SEND planning and assessment service. The Council says he had previous experience of considering transport appeals at stages 1 and 2;
• A retired headteacher who has experience of chairing and sitting on independent admission appeals panels; and
• A road safety education officer from the Council’s Communities and Road Safety Service.

Consideration of the route

24. The Council accepts that the panel members did not walk the route in question but says that the panel was satisfied that the route assessor was experienced and his report included photographs taken along the route. The Council also says that the Parish Council’s report did not say the route was unsafe.
25. The notes of the panel’s consideration of the appeal state the panel considered:
• a number of pieces of evidence submitted including “written, photographic and video evidence submitted by a group of parents” and that this included, amongst other documents, an independent route assessment commissioned by the local parish council and evidence of traffic counts along the route. I believe this is the group of parents Ms B refers to in part c) of the complaint as I have summarised it above;
• and discussed the independent report commissioned by the parish council, which focused mainly on a 0.9km section of the route. The panel’s view was that the conditions on that section of the route were “less comprehensive” than the rest of the route, but the panel were not of the view that the report said the route was unsafe or unavailable, so it concluded that the route “could” be walked;
• the width of pavements and condition of the pavements and also to vegetation at the time of the route safety assessment;
• advice from the Community Infrastructure Team on the extent of flooding on part of the route;
• the photographs of the walking route assessment and were of the view that the written and photographic evidence provided confirmed there was adequate visibility at crossing points;
• the evidence put forward about volumes of traffic as these had been disputed by appellants. The notes state the panel was unable to confirm traffic volumes (as detailed in the two reports submitted by appellants which were based on them counting) but noted the Council’s assumption that all road users would act reasonably and responsibly;
• there were other closer local schools below the statutory walking distances at primary and secondary phase, albeit in another local authority which residents living in the village in question could attend; and
• the walking route assessor was an experienced professional whose judgement was backed by photographic evidence taken along the route.

• The panel concluded that the route as assessed by the Senior Transport Coordinator in 2018 was an available route for the majority of children to walk, accompanied, as necessary.

Amount of traffic

26. I note that, in addition to the information provided in appendix 2 of the report, the route assessor commented on traffic flow in the body of his report, for example stating “There are sufficient gaps in the traffic flow to allow enough opportunities to cross safely…”. In addition no traffic accidents involving pedestrians had been identified between 2013 and 2018.

Ms B’s appeal

27. The panel considered the specific appeal submitted by Ms B. The notes confirm the panel considered the information she provided to the panel about her and her husband’s employment and that Ms B said she would find it difficult to accompany her daughter along the route and get to work on time. The notes state however that the panel decided there was no “…evidence that her child or family had any exceptional circumstances above those of others which would mean that the assessed walking route was not available to her child, accompanied by a parent, or other adult, as necessary”. The appeal was therefore refused.

Was the Council at fault and did this cause injustice?

28. The evidence in the notes of the panel’s consideration of the appeals confirms that the panel considered the information provided on traffic volume/counts.
29. The membership of the independent appeal panel at stage 2 did not include those people it says will be involved in its policy but I have no grounds to believe that those on the panel lacked suitable experience or were not sufficiently independent. There is nothing in the statutory guidance which requires panel members to walk a route where the safety of the route is in question. In this case the panel members said they were satisfied that the route assessor was experienced and that his report included photographs taken along the route.
30. It is clear that the panel considered the written information provided by the group of parents Ms B has referred to. In addition, I understand that Ms B is a member of this group and that she attended her individual hearing.
31. To summarise, there are no grounds which persuade me that there was fault in the panel’s consideration of Ms B’s appeal. I recognise that Ms B is dissatisfied with the outcome of the appeal but our role is to not to consider the merits of a decision (whether it is right or wrong) where there is no fault in the way that it reached its decision.

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Final decision

32. There was no fault by the Council in relation to its consideration of Ms B’s appeal against the decision to refuse transport.

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Investigator's decision on behalf of the Ombudsman