Summary: Mr X complained about the Council’s decision to refuse school transport for his daughter. The Ombudsman has found the Council was at fault for not assessing the safety of any of the walking routes it identified. We have also found the Council’s policies on school transport do not follow the relevant statutory guidance. The Council has agreed to reconsider Mr X’s application and amend the relevant policies.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains about the Council’s decision to refuse his request for school transport for his child, C. Mr X does not consider the proposed walking route to be safe.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. If we find fault, we must also consider whether it 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)
4. 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

5. I considered Mr X’s complaint and the information he provided.
6. I considered the Council’s response to my enquiries and the information it provided.
7. Mr X and the Council were given the opportunity to comment on a draft of this decision. I have considered the comments from Mr X and the Council before I made this final decision.

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What I found

Law and Guidance

8. School transport duties come under the Education Act 1996 (‘the Act’) and guidance comes from the Department for Education’s statutory guidance ‘Home to School Travel and Transport Guidance 2014 (‘the Guidance’). Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances.
9. 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.
10. 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’.
11. ‘Qualifying schools’ include community, foundation or voluntary schools and community or foundation special schools.
12. ‘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.
13. 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 policy which determines the start and end points for measurements and the method it uses to calculate the distance e.g. a GIS mapping system.
14. The 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.
15. In deciding whether a child can reasonably be expected to walk to school, (whether the issue is safety or disability), the question is whether they can do so if accompanied, and whether it is reasonable to expect a parent to accompany them. There may be good reason, such as a parent’s disability, why they should not be expected to.
16. The Guidance says “when considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied…The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”

The Council’s transport policy

17. The Council’s School Transport Policy is set out in the Council’s ‘Application for Free School Transport – Guidance Notes’. It states a pupil is entitled to free school transport if they attend the nearest secondary school to their home address within 3 miles, measured by the shortest available pedestrian route. The policy says it uses the ‘nearest school’ test as defined within the admissions code.
18. The Council’s School transport Policy allows applicants to appeal if school transport is not approved.
19. The Council also has a policy on the provision of school transport assistance on ‘Extremely Hazardous Routes’ (EHR) grounds. The policy explains that the criteria used to assess an extremely hazardous route does not try to determine that a route to school is either “safe” or “dangerous”, it is specifically a means of deciding whether the Council should take responsibility for transport from parents because the route is exceptionally and extremely hazardous.
20. The EHR policy says the Council will not normally provide transport and thereby assume parental responsibility where an alternative (extremely non-hazardous) route exists less than 3 miles, measured over the shortest walking distance.
21. The Council assumes parents will ensure children are accompanied to and from school by a suitable adult, an extremely hazardous route does not exist as a result of lonely routes, moral dangers, canals, rivers, ditches, dykes, lakes and ponds.

What happened

22. What follows is a brief chronology of key events, it does not contain all the information I reviewed during my investigation.
23. The Council refused Mr X’s request for home to school transport for his daughter, C, to secondary school. Whilst C was attending her nearest secondary school, the home to school distance was measured at less than three miles so the Council concluded she was not an eligible child and did not therefore qualify.
24. Mr X appealed against the decision on the grounds that the route identified by the Council was not safe, it was a walk that was a 2 and a half hour round trip and that they accepted the offer of a place at School A in good faith when their choice of three other schools was not accepted. Mr X asked the Council to walk the route to fully appreciate his concerns.
25. At the stage 1 review of its decision, the Council upheld its original decision to refuse transport based on distance grounds. It reiterated School A was the nearest school to C’s home address and it was less than three miles. The Council said it had noted Mr X’s concerns regarding the nature of the route and that it can consider providing transport on Extremely Hazardous Routes (EHR) grounds, subject to certain criteria. The Council also advised Mr X he could appeal the decision if he wished.
26. Mr X requested free school transport under the EHR policy. He specifically said the distance was not the only concern but there was a steep hill and also a wooded footpath. Mr X was of the view the woodland footpath was an unsuitable route for a ‘young unaccompanied girl’ because it was dark, concealed, the surface of the footpath was uneven and in winter it is muddy and slippery. Mr X also provided a letter of support from the Headteacher of School A regarding the walking route with the woodland path.
27. The Council assessed the route between School A and C’s home address. It noted the concerns regarding the footpath through woodland and it identified an alternative route, avoiding the woodland path, which is also under 3 miles. The Council also found another route, under 3 miles, where the steep hill could be avoided.
28. The Council decided it was unable to provide free school transport to C on EHR grounds. It explained what the EHR criteria was and said the crossing of a road was not part of the criteria, given that most pupils will be required to cross a road somewhere on their journey to school.
29. The Council reminded Mr X that, in light of the Council’s decision, it remained the responsibility of the parents to ensure necessary arrangements are put in place to transport C to and from school.
30. Mr X submitted a stage 2 appeal for a panel to review the decision because he had concerns with the alternative route the Council advised. He stated that there was a significant length of footpath with no overhead lighting and no CCTV cameras.
31. The Council accepted Mr X’s appeal and advised him on how he could present his case to the Panel. Mr X did not attend the hearing to present his case to the Panel.
32. The Panel considered all previous correspondence Mr X had submitted, including an independent risk assessment of the initial route the Council proposed. The risk assessment obtained by Mr X stated there were ‘substantial to intolerable risks to forcing a child to walk this route alone’.
33. The minutes of the hearing show the Panel discussed the following:
• The parents were denied a place for C at their first, second and third choice of schools. All three schools were further away from C’s home address than School A, where C currently attends. If C had got into any one of those, it would remove the requirement for transport as C would not be attending the nearest school and she would have had to walk to school;
• The parents have difficulty accompanying C to school due to work commitments;
• C attends the nearest school to her home address, it is not an extremely hazardous route and it is less than 3 miles from home;
• Mr X said he had walked the route and found it was 2.2 miles and it took him 1 hour;
• School A’s headteacher had submitted a letter stating there was a safeguarding issue with the proposed route to school;
• The proposed route is just the shortest possible walking route and not the prescribed route by the school transport panel. There are other routes available that fall within the 3-mile limit; and
• The parents have a parental duty of care and if they are concerned about moral dangers they could walk with C to a certain point.
34. The Panel decided to uphold its original decision because the EHR criteria was not met, there were alternative walking routes within 3 miles from C’s home address and there was no medical evidence C was unable to walk to school.
35. In its final decision letter, the Council told Mr X that it had considered all of the information it had and the Panel were unanimous in their decision to uphold the decision that C does not qualify for free school transport therefore it continues to be parental responsibility to make the necessary travel arrangements for C.
36. Mr X was unhappy with the Council’s decision and brought his complaint to the Ombudsman.

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Analysis

37. The Ombudsman is not an appeal body. 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 Council reached the decision.
38. In Mr X’s initial application for home to school transport, he stated the reason for his application as ‘(C) is at the nearest or catchment secondary school and lives more than 3 miles from school’. However, the evidence shows C attends the nearest qualifying school which is less than 3 miles from her home, in other words, the Council refused Mr X’s initial home to school transport application for C because she lives within statutory walking distance. This is not fault.
39. Mr X also stated in his initial application that their home is at least a two hour round walk from the school and there is a steep hill. There is no requirement in the Guidance that councils should take account of this when measuring distances to school. Whether to do so would be down to the professional judgment of the Council. The Ombudsman would be unlikely to find fault regarding this.
40. The Council’s decision on EHR grounds advised Mr X that because the law assumes parental accompaniment, free school transport on EHR grounds is not provided on the basis of a lonely route or moral danger. This is supported by the EHR criteria in the Council’s policy.
41. However, I do have concerns the Council’s policies on school transport do not follow the statutory Guidance. The Council says that the distance measured between the home address and the school, for determining eligibility to free school transport, is done so via the shortest available pedestrian route. It also states in the final decision letter to Mr X that ‘the Authority is not suggesting that the route measured should be the route that the child takes or that they should be walking to school’.
42. The Guidance says councils must measure routes which are safe to walk. The Council’s School Transport Policy does not make any reference to safe walking routes and its EHR policy specifically states it does not assess whether routes are safe. We would expect the Council to follow statutory guidance unless it has good reason not to. In the absence of a good reason not to follow the statutory guidance, I find fault with the Council’s school transport policies.
43. Mr X appealed the Council’s home to school transport decision based on the safety of the route therefore we would expect to find evidence of how the Council assessed and considered the walking route as safe. I have not seen any evidence the Council did this. The Council’s failure to measure a safe walking route is fault.
44. I acknowledge the Council identified alternative routes that were all within the statutory walking distance of 3 miles, but I have seen no evidence the safety of the alternative routes were assessed at any point. I also find the School Transport Panel failed to consider the safety of any of the routes suggested by the Council when this was the basis of Mr X’s appeal. This is also fault.

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Agreed action

45. The Council has not considered Mr X’s concerns about the safety of the route. Statutory guidance says it should.
46. The Council’s failure to consider the safety of the route has caused Mr X an injustice, as he cannot be confident the Council followed the relevant statutory guidance and that the appeals panel took the correct information into consideration when reviewing his case.
47. To remedy the injustice, the Council has agreed that within one month of this final decision, it will:
• Complete a home to school route safety assessment between C’s home address and School A;
• Amend its school transport policies so they are in line with statutory guidance.
48. If, following that, the Council assesses the route as safe, it will consider Mr X’s appeal at stage 2 of its appeal process and ensure the School Transport Panel follow the correct guidance.

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Final decision

49. There is fault by the Council and it caused injustice to Mr X and C. The Council has agreed to the Ombudsman’s recommendations to remedy the injustice. Our investigation of this complaint is complete and the case is closed.

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Investigator's decision on behalf of the Ombudsman