Summary: Mr X complained about the outcome of his home to school transport appeal for his son, which is causing the family financial difficulty. We find the Council is at fault. The Council’s appeal panel failed to consider all the evidence Mr X provided. We recommended it apologise to Mr X and offer him a fresh appeal hearing.

The complaint

1. Mr X complains about the Council’s decision to refuse free home to school transport for his son, Y. Mr X said the Council’s appeal panel failed to properly consider all the relevant evidence in making its decision.
2. Mr X said it did not take into account his son’s welfare and has given other children closer to the school, free transport. As a result, his son feels the odd one out as he pays for his transport which is causing the family financial difficulty.

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What I have investigated

3. I have investigated Mr X’s complaint about the Council’s appeal panel decision making. Paragraph 53 sets out my reasons for not investigating other matters.

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The Ombudsman’s role and powers

4. 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)
5. We cannot question whether an appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

8. I considered information provided by Mr X and the Council. I discussed the complaint with Mr X.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Home to school transport

10. Councils have a duty to provide free home to school transport for eligible children to qualifying schools (Education Act 1996, section 508B).
11. The “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.
12. 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. (Education Act 1996, Schedule 35B).
13. 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)).
14. Councils have discretionary powers to go beyond their statutory duties and provide transport for children who are not entitled to free transport (Education Act 1996, 508C).
15. Councils must publish policies in respect of home to school travel and transport for children of compulsory school age. It should explain both statutory transport provision, and that provided on a discretionary basis.

Government guidance: transport appeals

16. The Government issued statutory guidance in 2014 which recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for school transport.
17. Parents can challenge the council’s assessment of their child’s eligibility, its measurement of the distance to the school, and its assessment of the safety of the route. Parents can also ask the council to consider their exceptional circumstances.
18. Stage one is a review by a senior officer. The request for a review 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.
19. Within 20 working days of receipt the written request, the senior officer reviews the original decision and sends the parents a detailed notification of the review outcome, setting out:
• The nature of the decision reached;
• How the review was conducted;
• Information about other departments and/or agencies that were consulted as part of the process.
• What factors were considered;
• The rationale for the decision reached, and
• Information about how the parent can escalate the case to stage two.
20. Parents can challenge the officer’s decision and request a review by an appeal panel. This is stage two.
21. The independent appeal panel gives a detailed written notification of the outcome, within 5 working days, including the information above at paragraph 19, and information about the parent’s right to put the matter to the Local Government Ombudsman.

Council’s home to school transport policy September 2020- August 2021

22. The policy sets out the stage one review and stage two appeal process in line with statutory guidance.

What happened

23. On 9 July 2021 Mr X applied for free school transport for his son Y, to travel to his new secondary school, School A, in September 2021.
24. The Council wrote to Mr X on 19 July, refusing his application. It concluded School A was not Y’s nearest qualifying school (School B), and it was parental choice to send Y to School A.
25. The Council advised Mr X he had the right to have the decision reconsidered. It explained an appeal must be made in writing.
26. Mr X appealed the decision on the grounds the Council offered Y the school, despite it being parental choice, and it was beyond the statutory walking distance. Mr X said, School A was the feeder school from Y’s junior school and all Y’s friends planned to attend School A.
27. In a letter to Mr X of 26 July, the Council provided its stage one review of its decision, upholding its original decision.
28. The letter provided information on its stage two appeals process. It explained Mr X would need to:
• provide supporting documents to enable the case to be investigated further;
• complete the Home to School Transport Stage Two Pro forma, and
• indicate on the pro forma if he would like to make a verbal representation at the appeal.
29. Mr X emailed the Council on 16 August to let it know he would like to appeal its decision. He wrote to the Council explaining amongst other things:
• The cost of paying for school transport would impact the family.
• The walking route to School A is isolated, exposed, and dangerous and no adult in the family could reasonably be expected to walk with Y.
• The walk would impact Y’s physical and mental state as he has low confidence and anxiety when presented with new challenges.
• It is reasonable to expect the Council to provide a free bus pass as it had given Y a place at School A, and it is the feeder school all his friends attend.
30. Mr X sent the Council further supporting information on 8 September. He explained his appeal was based on two pieces of information:
• If Y attended School B he would be at risk of violence from an extended family member, Z, who attends School B. Due to family issues in 2020, involving Z, Z’s mother and the police, Mr X decided he would not send Y to School B. He said if Y was allocated a place there, he would have appealed the decision and involved the police, in support, if necessary.
• Other children who lived closer to School A, as the crow flies, were given free bus passes.
31. The independent appeal panel heard Mr X’s appeal on the 23 September and Mr X attended.
32. The Council wrote to Mr X on 28 September advising the panel refused his appeal for free school transport. It explained the panel can consider any case that does not fall within the Council’s home to school transport policy, by exercising its discretion.
33. It said, panel members considered the points raised in the stage two appeal and any supporting evidence provided. It said, in Mr X’s case the panel did not feel the case was sufficiently exceptional to warrant a departure from the terms of the Council’s policy. The appeal was refused on the basis of parental choice.
34. Mr X was unhappy with the decision and brought his complaint to the Ombudsman.
35. Mr X said the situation with Y and Z is ongoing and Y could not attend School B because of this. He said he discussed this with the appeal panel, but they did not appear to care or acknowledge it. He said the panel did not understand the situation as it should have considered it an exceptional case.
36. The Council provided a copy of the appeal panel’s decision notice and minutes from the appeal hearing.
37. The decision notice said in coming to its decision, the panel took into account one or more of the following grounds: Parental choice. No other boxes were ticked, including ‘Family/Social’ or ‘Other’ boxes. It explained the panel considered all the information submitted and the reasons given by Mr X at the hearing. It confirmed the appeal was refused as it was parental choice for Y to attend School A.
38. The notice did not mention Mr X’s concerns about the risk of violence, to Y, if he attended School B, or whether the panel had considered this. Neither did it mention Mr X’s concerns about the financial impact on the family or dangerous walking route to School A.
39. The minutes from the appeal hearing showed Mr X responded to panel member questions. Mr X said:
• he took the decision to send Y to School A with his friends;
• in the current economic climate Y should be given a free bus pass as over five years it would be a burden on the family to pay bus fares and;
• he knew other families in a similar situation, who were given free bus passes, and he felt the Council’s policy was flawed.
40. The minutes said the panel did not uphold the appeal as there were no exceptional circumstances demonstrated and School A is not Y’s catchment school.
41. The minutes did not show any discussion or consideration of the supporting evidence, of Y’s risk of violence, in attending School B.
42. In its response to our enquiries the Council said, appeal panels exercise discretion in appeals on an individual basis and information about the appeal process is available to the public in its Home to School Transport Policy.
43. The Council said its stage two decision letter shows the areas which the committee considered as part of Mr X’s appeal.

Analysis

44. 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.
45. Based on the information Mr X provided for his free school transport application, I am satisfied the Council followed its policy correctly. There is no fault in its decision to refuse Mr X’s application and uphold that decision in its stage one review.
46. The appeal panel provided a detailed written notification of the outcome of Mr X’s appeal, but there is no evidence, either in its decision outcome or the minutes of the hearing, it considered all the points raised by Mr X. In particular his fear that Y would be at risk of violence at School B. This is fault.
47. The fault identified caused an injustice to Mr X as he does not know if the panel properly considered his stage two appeal.

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Agreed action

48. To remedy the injustice set out above I recommended the Council carry out the following actions:
49. Within one month of the date of my decision:
• Provide a written apology to Mr X.
• Offer Mr X a fresh appeal with a new panel.
50. Within three months of the date of my decision:
• Remind the school transport appeal panel that its decision notice needs to include reference to all the evidence considered.
51. The Council has accepted my recommendations.

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Final decision

52. I have found fault by the Council. This fault caused Mr X injustice and the Council has agreed to my recommendations, therefore I have completed my investigation.

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Parts of the complaint that I did not investigate

53. I have not investigated Mr X’s complaint about other children receiving free school transport, as it has no impact on the Council’s decision in Mr X’s case and does not directly cause Mr X injustice.

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Investigator's decision on behalf of the Ombudsman