Summary: Mr Y complains about the Council’s refusal to provide transport assistance for his daughter, W, to attend her nearest available secondary school. We find the Council at fault for not properly considering W’s case. In particular, that there was no closer school she could attend due to her status as a late applicant and furthermore for not properly exploring the circumstances around the family’s reasons for applying late. The Council will apologise, re-take its decision and amend its Education Transport policy.

The complaint

1. Mr Y complains about the Council’s refusal to grant transport assistance for his daughter, W, to attend her nearest available secondary school. The Council refused the transport appeal because Mr Y did not name two other closer schools as higher preferences on his original school admissions application form.
2. Mr Y complains that W would not have received a place at any of the nearer schools even if he had named them on W’s school admissions application form. Consequently, there was no ‘real prospect’ of W gaining a place at a school nearer to the one allocated by the Council.

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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 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, section 34(3), as amended)
4. 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)
5. 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

6. I considered Mr Y’s written complaint and discussed the case with him by telephone.
7. I made enquiries of the Council and considered its response alongside the Council’s ‘Education Transport Policy’, the Department for Education (DfE) ‘Home to School Travel and Transport’ guidance and the relevant sections of the Education Act 1996.
8. Mr Y and the Council had an opportunity to comment on my draft decision. I considereded their comments before making a final decision.

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What I found

Legal and administrative background

9. Councils are required to make travel arrangements and provide free transport for “eligible children” of compulsory school age to attend their “nearest suitable school”. A child is eligible where the nearest suitable school is more than two miles from their home if the child is aged under eight, and three miles if aged between eight and sixteen.
10. In July 2014, the government issued statutory guidance to local education authorities on home to school travel and transport. (The Education Act 1996 sections 508 and 509, and part 6 of the Education and Inspections Act 2006.) The guidance is used alongside the ‘School Admissions Code’. It states that:

“This is statutory guidance from the Department for Education. This means local authorities are under a duty to have regard to it when carrying out their duties in relation to home to school travel and transport, and sustainable travel.”

11. The guidance sets out the need for councils to look at the availability of places when considering the nearest suitable school. It explains that this will normally be when places are allocated. It says: “[the] nearest suitable school... is... taken to mean the nearest qualifying school with places available.”
12. It also says: “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”.
13. The Council’s ‘Education Transport Policy’ sets out how it assesses eligibility for transport assistance. The key sections relevant to this complaint say:

“Essex County Council, in accordance with its statutory duty, will provide free home to school transport for children of compulsory school age to the nearest available* school for their home address who meet the 'qualifying distance' criteria which are:

• 2 miles or more for children below the age of eight
• 3 miles or more for children aged eight and above

For children aged eight the change in entitlement to free transport will be implemented from the start of year four”

“An available school is determined to be a maintained school or academy within the administrative area of Essex County Council at which the child would have been offered a place, had the parent applied for the school as first preference on the original admission application”.

“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
• There is any nearer available school which was listed as a lower preference on the original admission application
• The parent has rejected an offer of a place at any nearer school.

“An entitlement will not exist in the event that the nearest available or a nearer available school than the offered school is full, where a parent did not list that nearer school as a higher preference on the original admission application form (unless there is an entitlement under the low income criteria)”

What happened

14. W started secondary school in September 2021. Mr Y applied for her school place after the deadline had passed and was therefore considered a ‘late’ applicant. Mr Y named just one school on his application for W; the nearest school which he assumed W would be able to attend.
15. On offer day the Council issued a refusal for the school applied for because all places were allocated to on-time applicants. Instead, the Council allocated a place for W at the nearest available school. Mr Y applied for transport to the allocated school but was refused. He added three other closer schools to W’s application. Space became available at the fourth school listed on W’s school application. The Council offered the place which Mr Y accepted.
16. As the school was the nearest suitable school for W and was over three miles from her home address, Mr Y assumed that W would be eligible for funded transport assistance. He applied again to the Council for a bus pass. The Council refused, stating that Mr Y had not, in accordance with the education transport policy, listed all the nearest schools on W’s original school application. Therefore, despite there being no closer school which W could attend, the Council declined to offer transport assistance.
17. Mr Y appealed the Council’s decision. The Council considered W’s case but refused the appeal, again referring to its policy and the requirement to list all closest schools on the school admissions application.
18. Dissatisfied with the Council’s actions, Mr Y approached the LGSCO.

Was there fault by the Council causing injustice to Mr Y and W?

19. The law says that all councils must make suitable travel arrangements and provide free transport for “eligible children” of compulsory school age to attend their “nearest suitable school”. The guidance states that “[the] nearest suitable school... is... taken to mean the nearest qualifying school with places available.” It also says that, 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.
20. The LGSCO has previously taken advice on cases like Mr Y’s. The advice we received stated that a council can require an application to be made for the nearest school because, without applying for a place, there would be no real prospect of getting a place at the school. Therefore, it is not necessarily fault for the Council to state in its policy that applicants should name all closest schools.
21. However, the advice also says councils cannot say it has made suitable arrangements by asking parents to name the nearest schools, but then refuse transport solely because they have not done so. This approach takes no account of whether the child would have had a real prospect of being offered a place at the nearest qualifying school and therefore whether that school is “suitable”. If there were no places available at the nearest school at the point places were allocated for the applicant, then it could not be a suitable school.
22. Although the Council is entitled to have a local policy setting out how it assesses transport eligibility, that policy must comply with the Council’s statutory duties. We do not consider that naming schools on an application is the only way to determine if there was a real prospect of securing a place; councils should also take account of the availability of places at the point of allocation.
23. When responding to our enquiries, the Council confirmed it had not explored the reasons why Mr Y’s school application for W was late. Mr Y works within the armed forces and had to move to a new address for work purposes. He could not obtain proof of the new address before the Council’s extended deadline for late applications. He considered the possibility of applying before the deadline using an army base address but decided it would not have helped W’s prospects of gaining a place at the preferred school as the base is situated outside of the school’s priority area.
24. Therefore, in W’s case, there was no real prospect of her getting a place at a closer school than the one allocated, even if Mr Y had put other schools as higher preferences on the original admissions form. I am not satisfied the Council has properly considered this. Based on the information available, it appears that W is an “eligible child” for transport to “the nearest suitable school” which exceeds the statutory walking distance.
25. Although the Council’s education transport policy refers to the availability of places at the nearest school, in my view the Council should further amend its policy to outline how it considers eligibility for those who applied for school places after the published deadline.

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Agreed action

26. Within four weeks of my final decision, the Council will:
• Apologise to Mr Y for the time and trouble caused and reconsider W’s eligibility for transport assistance. If the Council decides that W is eligible, it will backdate entitlement and reimburse Mr Y for school transport costs incurred since to the beginning of the 2021/22 academic year.
27. Within twelve weeks of my final decision, the Council will also:
• Review its Education Transport Policy to include information about how it assesses eligibility for applicants who attend their nearest suitable school after having applied ‘late’ for their school place; and
• Remind officers who assess transport eligibility of the requirement to consider the availability of school places at the point that places were allocated for the school application in question.

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Final decision

28. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions I have recommended provide an appropriate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman