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Essex County Council (21 008 023)

Category : Education > School transport

Decision : Upheld

Decision date : 08 May 2022

The Ombudsman's final decision:

Summary: Miss X complained that the Council failed to consider her application and appeal for home to school transport for her 16-year-old son properly. There was fault in the way the Council considered the matter as it did not look at whether in all the circumstances of the case it was necessary to offer help with transport. Nor did it explain how it measured distances. The Council has agreed to review the decision and its post-16 transport policy.

The complaint

  1. Miss X complained that the Council has failed to consider her application and appeal for home to school transport for her 16-year-old son, Y, properly. Y has special educational needs and attends a specialist school. Miss X says the Council did not take account of all her circumstances and she was not aware she could ask for an appointment to discuss her case in person as part of her appeal. As a result she says she is having to transport her son every day which is causing financial difficulties and preventing her looking for work or training.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We cannot question whether an organisation’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, , sections 26(1), 26A(1), 34(3), as amended)
  2. 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. If we are satisfied with an organisation’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

  1. I discussed the complaint with Miss X and considered the information she provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on home to school transport.
  2. Miss X 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

Home to school transport duties

  1. Councils have a duty under the Education Act 1996 to provide free home to school transport for certain groups of children of compulsory school age. These include:
    • pupils who qualify on low income grounds and attend a secondary school between two and six miles from their home.
  2. For pupils of sixth form age, councils must publish a statement setting out the arrangements for provision of transport they consider it necessary to make to help pupils attend education or training, and the financial help available. (Education Act 1996, section 509AA)
  3. Councils have discretion in setting their arrangements, as long as the statement includes provision for pupils with special educational needs and disabilities. But statutory guidance 'Post-16 transport and travel support to education and training' says councils must take account of various factors including:
    • the needs of those for whom it would not be reasonably practicable to access education or training if no arrangements were made,
    • the needs of the most vulnerable or socially excluded.
  4. The guidance says the overall intention of the sixth form transport duty is to ensure learners can access education and training of their choice. It says if support for access is requested, this will be “assessed and provided where necessary”. Councils must “exercise their power to provide transport or financial support reasonably, taking into account all relevant matters”.

Council’s policy on post-16 home to school transport

  1. The Council’s ‘Post 16 Transport Policy’ says the Council will only provide help with transport where certain circumstances apply. These include:
    • low income families; and
    • students with an Education, Health and Care Plan naming the school they attend as the nearest suitable school.
  2. In all cases the student must be attending the nearest appropriate placement and that institution must be more than three miles from the student’s home by the shortest walking route.
  3. At the time of the events covered in this complaint the Council’s policy also said:

“If a student has been entitled to transport to a specialist school for their statutory school years and they are continuing their education at this school they will continue to be entitled to transport (on payment of the charge) as it will be considered that this school is the nearest establishment that offers the course the student is pursuing and that can best meet their needs”.

Home to school transport appeals

  1. A parent may appeal against a decision refusing help with transport. The Council’s policy says:
    • “The written request should detail why the parent believes the decision should be reviewed and give details of any personal and/or family circumstances the parent believes should be considered when the decision is reviewed.”
    • “Each appeal is considered on its individual merits and does not set a precedent for future cases.”
  2. Under the Council’s policy there is a two-stage appeals process:
    • Stage 1 – consideration by an officer more senior than the previous decision maker
    • Stage 2 – a full and final decision by an officer more senior than the officer who considered the first stage appeal.
  3. Where a parent feels unable to make their case fully and clearly in writing at the second stage of appeal, they may request a telephone or in person appointment with the second stage decision-maker to explain their case orally.

What happened

  1. Miss X’s son, Y, has an Education Health and Care Plan and attends a specialist school. Up to Year 11 he received free home to school transport because he met the low income criteria and his school was over two miles from home.
  2. When Y was due to transfer to the sixth form at the same school Miss X applied for help with transport. The Council refused the application on the grounds that the school was less than three miles from home.
  3. Miss X went through the two stages of the appeals process. In the course of the appeal she made the following points:
    • She disputed that she lived less than three miles from the school, saying the distance from pick up point to drop off point was more than three miles.
    • Y had been attending the same specialist school and receiving free home to school transport for the past two years.
    • The care plan she had sent with her application confirmed Y needed a carer to travel with him.
    • Y has an EHCP and is vulnerable. He has a physical condition which causes him mobility problems, he has no sense of danger or road awareness, and he cannot cope with public transport because of his autism.
    • Y receives benefits for his mobility problems.
  4. The Council replied to the stage 2 appeal in late August 2021. It did not uphold the appeal. It referred to the circumstances Miss X described and said it sympathised with her situation. However it said the points she made were not relevant as there was no requirement in law for the Council to provide free or funded transport for pupils of sixth form age. It said Y did not qualify under its policy, which was very clear that the three-mile rule applied, and the Council had to apply the policy fairly and consistently. It said it did not consider there were exceptional reasons to depart from the policy. It confirmed the decision refusing the application.
  5. Miss X then wrote to the Council to ask if she could claim her fuel costs as she had been taking Y to and from school since the beginning of term in early September. The Council replied that there was no further right of appeal or opportunity to apply for fuel costs where the Council had already declined an application for travel assistance and the appeals process had come to an end.

Analysis – was there fault causing injustice?

  1. Mrs X disputed the distance measured. In responding to her appeal the Council did not explain why it stood by its decision that the distance was under three miles or explain how it measured it.
  2. In the Council’s ‘Education Transport Policy’ for pupils under 16, the Council explains it uses a Geographical Information System to measure and calculate home to school distances. This uses Ordnance Survey Highways road network data to establish the shortest road route to determine which is the child’s nearest suitable school. The policy explains what the system uses as starting and finishing points for the journey. The Post 16 Transport Policy does not explain how the Council measures the shortest walking route, which is the measurement relevant to qualifying for post-16 transport assistance.
  3. I find the Council was at fault in failing to explain to Miss X how it calculated the home to school walking distance in response to her appeal. I also consider the policy is flawed as it lacks information about how the Council measures these distances.
  4. The Council also failed to consider Miss X’s appeal properly in other ways. When someone applies for help with post-16 transport, the Council should consider whether it is ‘necessary’ to provide it. The Council says its policy taken as a whole defines the circumstances in which it considers it necessary to provide transport assistance. Its policy invites appellants to provide details of their individual personal or family circumstances and says it will consider each case on its merits. But the Council has not demonstrated that it considered whether in the particular circumstances of this case it was necessary to provide help with transport. In response to Miss X’s appeal it said Y could not qualify because he did not meet the three-mile rule in the policy and there were no ‘exceptional reasons’ for the Council to award transport assistance outside of the policy. This is not the correct test. As the statutory guidance says, the test is whether transport is ‘necessary’, taking account of all relevant factors, not whether the reasons are exceptional.
  5. It appeared at first that the Council may have overlooked the part of its policy relating to continuing entitlement to help with transport for sixth form students remaining at the same specialist school. The Council has now explained that this only applies where the school is more than three miles from the student’s home. It has amended its policy to make the wording clearer.
  6. Miss X says she was not aware she could ask for a chance to make representations in person at stage 2 of her appeal. However the Council’s stage 1 appeal response reminded her she could find full details of the Council’s transport policy on its website. It provided a link to the relevant page. So she had an opportunity to find the information about how to appeal at the second stage.
  7. Based on the information I have seen I find that the Council was at fault in failing to consider all the family circumstances in this case and decide whether it is necessary to provide help with transport. Miss X says having to transport her son to and from school every day means she cannot apply for work or training. She says Y has no other means of getting to school as he cannot use public transport on account of his special educational needs and disabilities. She says she has no family locally and she does not know any other parents at the school who could help. It is for the Council, not the Ombudsman, to say whether it considers it necessary to offer help with transport in these circumstances. I do not know what the outcome would have been if the Council had considered the matter properly. However the uncertainty about this and about how the walking distance has been calculated is an injustice to her.

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Agreed action

  1. To remedy the injustice caused the Council has agreed that within one month of the final decision on this complaint it will review its decision on Miss X’s request for help with transport. In doing so it will take the following steps:
    • consider whether in the particular circumstances of her case it is necessary to provide assistance;
    • offer her an opportunity to provide further evidence and have a face to face or virtual meeting if she wishes.
    • If she is unsuccessful the Council should explain the reasons for the decision, including how it measures the home to school walking distance.
    • If she is successful it should reimburse the costs of transport since Y started at the sixth form, minus any financial contribution that would have been due if transport had been awarded from the outset. It should also pay her £250 to recognise the difficulties she has had in transporting her son herself.
  2. The Council has also agreed that within three months of the decision it will:
    • review its post-16 transport policy and amend it to include reference to having to consider whether it is necessary to provide transport;
    • remind officers involved in transport appeals of this requirement; and
    • revise the policy to include details of how the Council measures home to school walking distances for purposes of the three-mile rule.

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Final decision

  1. I have found that the Council was at fault in how it considered Miss X’s appeal for help with home to school transport for her son. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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