Summary: Miss M complained the Council wrongly refused to provide free home to school transport for her son, C, because she did not put the second nearest school as a preference when applying for a school place. The Ombudsman has found fault in the way the Council considered its decision to refuse transport. To remedy the injustice caused, the Council has agreed to apologise to Miss M and offer her a fresh appeal with a different council officer.

The complaint

1. The complainant, whom I refer to as Miss M, complains that the Council has wrongly refused to provide free home to school transport for her son, C, because she did not put the second nearest school, School 2, as a preference on her original school admissions application. She says she submitted a late application to School 2 but it did not have a place available. Therefore, C is attending the nearest school with a place available for C (School 3) but the Council refuses to provide transport.

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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 considered Miss M’s complaint and the information she provided.
6. I considered the information provided by the Council.
7. Miss M and the Council were given the opportunity to comment on a draft of this decision and I considered the comments from both sides before making this final decision.

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What I found

Law and Guidance

8. Councils must provide free home to school transport for eligible children of compulsory school age to their qualifying schools (Education Act 1996, 508B(1) and Schedule 35B).
9. Eligible children include those who:
• Live beyond the statutory walking distance from the school (two miles for children under eight, three miles for children aged eight and above);
• Receive free school meals, or whose parents receive the maximum Working Tax Credit, for transport to one of the three nearest schools up to a distance of six miles.
10. The qualifying school is the nearest school with places available that provides education suitable to the age, ability and aptitude of the child, and any special educational needs the child may have.
11. Councils also have discretion to offer transport where they consider it necessary to help ensure the child attends school.

Council policy

12. The Council’s school transport policy (‘the policy’), sets out who may qualify for help with transport under the legal criteria.
13. It says unless a parent meets the low-income criteria, it will not provide transport to a school if:
• There is a nearer school to the home for which a parent did not apply on the original admission application;
• There is a nearer available school which the parent listed as a lower preference on the original admission application; or
• The parent has rejected an offer of a place at any nearer school.
14. If someone meets the low-income criteria, the Council will provide transport for the three closest schools between two and six miles away.
15. It also allows for the Council to award transport where it considers there are exceptional circumstances. It must be satisfied the parents have shown there are social, medical, financial or personal reasons they cannot take the child to school themselves.
16. Under its policy, the Council measures the ‘shortest road route’ to calculate distances to establish which is the nearest school to a child’s home address. It does so using a Geographical Information System (GIS). The policy says “the GIS measures the distance using the Ordnance Survey Highways road network data which is the base data for many online mapping and routing applications. The route measured will start at the point on the road network that is closest to the Ordnance Survey address point of the pupil’s home, and will end at the point on the road network closest to the address point of the school…The measurements produced by the Council’s GIS are the definitive distance calculations that the Council will use to determine transport eligibility”.

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What happened

17. Miss M applied for a secondary school place for her son, C, for September 2021. She says she used an online route planner to find the two nearest schools to her home address. Based on the results of this search, Miss M put School 1 as first preference on the application form and School 3 as second preference.
18. C was offered a place at School 3 as there were no places available at School 1. Miss M applied to the Council for free school transport. The Council refused the application because C was not attending the nearest available school.
19. With the help of her local Citizen’s Advice Bureau, Miss M submitted a stage one appeal for the decision to be reviewed. Miss M explained how she had found the two nearest schools to her home address and C was attending the nearest one with a place available. Miss M said she had no choice but to accept the place at School 3. She also highlighted that C received free school meals, they were a low-income family and there are no schools within six miles of their home.
20. The Council explained in its stage one response that the low-income criteria was not met in this case because there are no secondary schools between two and six miles from Miss M’s home.
21. It also explained that where a parent, through the original admission process is unable to secure a place at the nearest available school having applied for it as the highest preference, transport can be provided to the next nearest school, and so on, subject to the distance criteria being met. If a place is obtained at a school without having applied to all nearer schools as higher preferences through the original admission process, an entitlement to transport would not exist. The Council said that although the nearest school (School 1) was unable to offer C a place, the next nearest school to Miss M’s home was School 2 and not School 3. As Miss M did not list School 2 as a preference on her admissions application, there is no entitlement to transport.
22. On receipt of the Council’s stage one response, Miss M submitted a late application to School 2, but it was unable to offer C a place. Miss M then submitted a stage two appeal of the Council’s decision to refuse transport. She explained School 1 and also School 2 could not offer C a place so he had no choice but to attend School 3 as it was the only school with a place available for him.
23. In its stage two response, the Council reiterated that its decision to refuse transport still stood because C was not attending his nearest school. It noted Miss M had submitted a late preference to School 2 but because she did not apply for a place in her original admission application, transport would not be provided.
24. The Council explained it used its own GIS to ensure all distances are calculated consistently for all children in the area.
25. Miss M brought her complaint to the Ombudsman.
26. C began attending School 3 in September 2021. Miss M says she has struggled to afford the bus fare for him to attend and as a result, C has missed school on occasions.

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Analysis

27. It is not the Ombudsman’s role to decide whether someone should receive free transport to school. We can only consider if there was fault in how the Council reached its decision.

Council’s decision-making process

28. The Council’s policy is clear that unless the low-income criteria is met, transport will not be provided to a school if there is any nearer school to the home for which a parent did not apply on the original admission application. The Council says it will provide transport to a suitable school that is two to six miles away (which is in accordance with the Guidance) and its stage two response states her application for school transport had been refused on the grounds that C was not attending his nearest school. This suggests that if Miss M had listed School 2 as her second preference, then C would be eligible for transport, despite School 2 being more than six miles from their home.
29. The Council’s stage one and stage two responses take no account of whether C would have had a real prospect of being offered a place at School 2 and therefore whether that school was “suitable”. This is fault. If there were no place available at the nearest school, then it could not be a suitable school. In response to a draft of this decision, the Council said it did not check to see if School 2 had a place available for C, but in its decision letter to Miss M it said it had based its decision on School 2 being available.
30. The faults identified caused an injustice to Miss M and C as they cannot be certain their appeal was properly considered.
31. If the school is oversubscribed (as is the case with School 2), councils should use the oversubscription criteria to determine whether the child would have got a place at the nearer school or were they of lower priority than the child who got the last place during the normal admissions round. Places offered at appeal would not be relevant. If the child would have been admitted to the nearer suitable school (School 2) had the parent applied, the council can legitimately refuse the application for free home to school transport to another school (School 3).
32. The Council’s policy says it recognises it has discretionary powers and they should not be unreasonably fettered. Therefore, it says it will consider and may agree requests for home to school transport where there are considered to be exceptional circumstances.
33. It is not our role to decide if Miss M’s or C’s circumstances are exceptional; that is the Council’s responsibility. Our role is to assess whether the Council made its decision properly. I have seen no evidence the Council has considered if Miss M’s circumstances are exceptional nor is there any evidence it explained why her case did not merit the Council exercising its discretion when it is aware:
• Miss M is on a low-income,
• C receives free school meals,
• on occasions C has not attended school because Miss M says she is unable to afford the bus fare,
• there are no secondary schools within six miles of their home, and;
• there are no places available for C at the two nearest schools and therefore he is currently attending the nearest school that has a place for him.

Council’s appeals process

34. The Ombudsman has considered the Council’s appeals process in previous investigations and come to the view that the Council has adequately explained its reasons for adopting an appeal process without an independent second stage as recommended by the Guidance. Therefore, there was no fault in having a council officer consider the appeal at stage two.

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Agreed action

35. Within four weeks of my final decision, to remedy the injustice caused by the fault, the Council has agreed to apologise to Miss M and write to her to offer her a fresh appeal with a new council officer or panel.

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Final decision

36. There is fault by the Council and it has agreed to remedy the injustice caused. I have now completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman