Summary: Mrs B complained about how Cumbria County Council considered her application and appeal for home to school transport for her child. The Council wrongly relied on a blanket policy that failed to take into account the safety of the route to boarding/alighting point or the difficulties in accessing this. The Council has since made new arrangements for home to school transport, and has agreed to make changes to its policy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains that the home to school transport arrangements the Council has put in place for her son, X, are unsuitable because they wrongly require him to get to a pick-up point that is around a mile from the family’s home and which is unsuitable as there is no safe walking route to that point. The Council wrongly asserts that it is not required to consider the safety of this route to the pick-up point.
2. Ms B also complains the stage 2 appeal panel failed to properly consider her specific points regarding the safety of the walking route to the pick-up point and simply relied instead on the policy which states the Council will not consider this. Instead it suggested that she could try to secure and pay for a spare seat on a primary school bus that could take X home.
3. The injustice Ms B claims is that her son either has to walk a route that is unsafe as the road he has to walk along does not have a pavement and the speed limit is 60 mph. Alternatively she has to try to arrange lifts from other people or X has to remain at school for a considerable time as she works and is unable to collect him when school ends. She also says the spare seat arrangement is not satisfactory because it is not free and it is not guaranteed.

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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 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)
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)

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How I considered this complaint

7. I discussed the complaint with Ms B and considered the written information she provided with her complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision.
8. Ms B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.
9. 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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What I found

10. C is 11 years old and has been attending secondary school since September 2021. He qualifies for free home to school transport as an “eligible child” because he lives more than three miles from his nearest qualifying school and he attends this school.
11. C receives free home to school transport by bus from a boarding point which is just under a mile from his home. Ms B made representations to the Council about the safety of the walk to the boarding point in mid-July 2021. She stated she was unhappy with her son walking to the boarding point as it involved him walking down a busy main road which did not have a footpath. Ms B and her husband are both employed in schools so have little, if any, flexibility in when they can start or leave work. She said that C and his younger sibling were picked up and returned home from primary school by a minibus that came to their house. She asked that C be allowed to travel home on that minibus from the primary school when he began attending secondary school. C would have been able to get to the primary school boarding point easily.
12. A manager in the Council’s transport team provided a response to Ms B the same day. He said that the Council had agreed and arranged the different boarding point for C in the mornings and that she could apply for a spare seat on the primary school minibus in the afternoons. He said however that this would require some special consideration as C was a secondary school age pupil and the bus was designated for transporting primary school aged children. The Council said it would not be considering requests for spare seats until the October half-term break and that there would be an annual charge of around £450 if a seat could be offered.
13. Ms B came back to the Council in early August making further representations. The Council responded to this at stage 1 of the representations process. In its response the Council:
• confirmed the change of the morning boarding point in agreement with her request for this;
• referred to the Council’s policy that parents or carers are expected to take and collect their children form a drop off /pick up point up to a mile away for secondary school age children and that the route to that boarding/alighting point was not assessed for safety; and
• the Council’s policy had been properly applied but Ms B could apply, under the spare seats policy, for a seat on the primary school minibus and, if the primary school was consulted and happy to have a secondary aged pupil on the minibus, this would be considered at the October half-term break.
14. Ms B contacted the Council again in mid-August asking for the matter to be reconsidered. She stated she was unhappy that consideration of the spare seats scheme would not take place until October and also that she would have to pay for this even if it was agreed.
15. The Council then arranged for consideration by a panel at stage 2 of the representations process. The panel was arranged for early September and took place virtually due to the Covid-19 pandemic. Ms B was invited to attend and did so. The panel comprised a senior Council manager, an officer from the education department and a Council solicitor. A senior officer from the Council’s school transport team attended to put the Council’s case to the Panel. None of the panel members had been involved in the original decision. Before the hearing Ms B provided photographs and a video of a junction on the walking route for the panel members to take into account. These showed the 60 mph A road busy with traffic and without a footpath to the side of the road.
16. The notes of the appeal hearing demonstrate that:
• the representative from the transport team told the panel what had happened to that point and that the Council’s policy had been property applied and a decision on the spare seat arrangements would not be available until after the October half-term;
• Ms B told the Panel that C’s walk to the bus stop involved him walking down a busy 60 mph road which does not have a footpath and that he would also have to cross that road to get to the original boarding point. She said neither she nor her husband could walk the route with him as they both work in schools without flexibility in hours and there was no-one else available to accompany C. She asked to be able to drop her son at another boarding point so he would not have to walk and where she could take him on her way to work in the mornings;
• the chair of the panel stated there was an alternative route to the pick-up point but also stated “..we do have a safe walking rule around safe walking routes for children, we apply a three mile rule, would you say that would be a safe route to pick-up?” Ms B replied that she wouldn’t expect him to walk it and that she thought it was more than three miles. The chair replied “I understand, I wouldn’t ask my 12 year old daughter to walk that route to School”; and
• the panel discussed various options for pick-up points to try to find a different way for C to get to school. Ms B said the best option would be for C to be picked up from her home on a different route and the next best option would be for her to drop C at a different bus stop where he would be safe in the mornings and get the minibus home with his younger sibling from the primary school in the evenings. The panel advised she would be charged around £450 a year for the minibus. The panel said they were familiar with the road which was the walking route and about which Ms B was concerned and said they “appreciate your concerns” about it.
17. There are no notes of the panel’s consideration but the decision letter sent shortly after states:
• Ms B’s appeal was about the transport arrangements it had offered for C because the pick up/drop off point was inappropriate due to the dangerous journey to the collection point along roads without footpaths or lighting;
• the panel considered the transport policy had been properly applied by the Council. The policy states parents are expected to take and collect children from the boarding point and that route to the boarding point would not be assessed for safety;
• the panel considered whether there were exceptional circumstances which meant it should agree an exception to the policy but decided there were not;
• the panel wanted to help find a solution for the family so considered whether the bus could pick C up closer to the family home but decided it was not safe or appropriate to do that. It also decided an alternative route requested by Ms B did not come close enough to the family home and there were no other suitable buses that could be used. They concluded the only option was for Ms B to apply for the spare seat scheme to get a place on the minibus for the primary school.
18. I understand from Ms B that she did not pursue the offer of the spare seat and has, in the meantime, driven C to the alternative boarding point in the mornings and he waits at the drop off point to be picked up by one of his parents at the end of the school day. Due to their working commitments this can mean he waits for some time. On occasion Ms B says that C has walked the route but this caused her and him significant anxiety due to the speed of traffic and the lack of footpath. These worries are even more significant when it is dark.
19. In late September 2022 Ms C contacted the Council again to ask it to reconsider the pick-up/drop-off point. She told the Council another family who live close to her had also requested a closer pick-up point. The Council says that it has subsequently agreed to provide a pick-up/drop-off point closer to Ms B’s home. It says the reason for this is that it has a new transport provider which is able to provide buses that can accommodate a closer pick-up/drop-off point and because another family has been affected. Ms B is happy with this new pick-up/drop-off point.

Analysis of fault and injustice

Eligibility and what this means

20. The Council decided C is an eligible child. The law therefore requires the Council to secure ‘suitable’ and free travel arrangements for C. These arrangements should not incur any additional costs to his parents and cover the whole journey from home to school and back.
21. We recognise that it seems that since September 2022 the Council has been making suitable arrangements for C’s journey to school. However, we are concerned that the agreement to make additional provision from September is not the result of any review of the safety and suitability of the provision made until that time. Rather, it became convenient for the Council to make changes due to its contract with a new transport provider and notification of another local child who would be affected in the same way as C if alternative arrangements were not made.

The suitability of the arrangements the Council made until September 2022

22. The arrangement of providing buses that stop at designated boarding and alighting points is lawful. But it is not the case that the Council is only responsible for the journey from the boarding point to the ‘relevant educational establishment’ and the parent is responsible for the remainder of the journey between the boarding point and home. The law says the travel arrangements for an ‘eligible child’ living outside statutory walking distance includes ‘travel in both directions between the child’s home and the relevant educational establishment…” So, the Council is responsible for ensuring that the travel arrangements for the entirety of the journey are ‘suitable’. The Guidance says that for arrangements to be ‘suitable’, they must also be ‘safe and reasonably stress free’ and take account of the nature of the route to the boarding point. By failing to consider the route and arrangements for C to get to the boarding/alighting point the Council has not satisfied itself on this point this in this case. This is fault.
23. The Council says that it does not assess the safety of the walking route to the boarding point. It relies on its policy which states that parents are responsible for getting their child to the boarding point to support this position. But the Council has assessed this route in the past (presumably before it introduced its policy that it will not assess the safety of the waling route to a pick up point) and decided that part of the route that C is now expected to walk was unsafe to walk. That assessment does not include a view on whether or not the route would be safe for a child if accompanied but we consider this previous assessment is relevant as it reinforces Ms B’s argument that the route is unsafe to walk. It follows that if that route to the boarding point is unsafe to walk, there are clearly grounds to consider that the travel arrangements may not be ‘suitable’.
24. Given the stated concerns about the walking route detailed by Ms B and the earlier assessment of this by the Council we consider it was fault for the Council to decide the section of the route between Y’s home and the boarding point did not come within its responsibility and to deem it ‘suitable’ without explicit consideration of that.
25. We do not also consider the Council was correct to advise Ms B to apply for a seat under its spare seats scheme which is for children who do not qualify for free transport and for which there is a charge. This is because C was an ‘eligible child’ so should be provided with free transport for the entirety of the journey.

The Council’s policy

26. The Council’s policy states parents are responsible for delivering children to boarding points regardless of their individual circumstances or the safety of the route. This is fault. Councils cannot fetter their discretion in this way and must consider each application on a case-by-case basis.

The appeal

27. The purpose of an appeal process is for a new decision maker or panel to review the decision previously reached and to consider whether they would reach a different decision on the same facts. If they do decide that a different outcome should have been reached they should make a new decision and uphold the appeal. When considering an appeal it is assumed that the person/people considering the appeal take account of the case put forward by each party. In this case the appeal panel has simply accepted that the original decision was correct because of the wording of the Council’s policy on pupils getting to pick-up/drop off points. We do not consider that it properly considered the original decision before moving on to look at the specifics of Ms B’s case. This is because the panel did not consider whether the Council’s policy was flawed or whether it complied with the law and therefore whether the decision to simply refuse to consider the safety of the route to the pick-up point was correct. We would expect the panel to have some knowledge of the relevant law and the policy and to identify any discrepancy and refer it back to the relevant department for further consideration. This was fault.
28. Having unquestioningly accepted the policy was correct and that it had been properly applied, the panel went on to consider whether there were any exceptional circumstances provided by Ms B to persuade it that it should agree transport for the whole route as an exception to that policy. The letter to Ms B following the hearing states the panel considered the case Ms B put forward and reached a decision that it did not meet the grounds to be so exceptional as to persuade the Council that it should stray from the published policy. However, we cannot know how the panel reached this decision. This is because there is no information about what it took into account and why it did not consider her case regarding the safety of the route merited making an exception. This was despite members’ acknowledgement of her concerns about it. We consider the absence of information about the panel’s consideration amounts to fault.
29. There is no suggestion that the panel considered the suitability of the entirety of the travel arrangements: it did not include the journey to the pick up point or Ms B’s case about this including her and her husband’s working arrangements. This also amounts to fault. Whilst we recognise that the panel was trying to be helpful in looking for alternative travel arrangements including that she could consider paying for a spare seat, we consider it was outside the panel’s remit to do so. In addition it indicates the panel was unaware that transport for an eligible child should be provided free for the entirety of the route between home and school. This therefore amounts to fault.

The Council’s application of case law in its comments on this complaint

30. The Council has referred to case law which it says states “there may well be debate in individual cases whether transport arrangements established with a pick up point other than at the home of an eligible child are “suitable” as required by section 508B(1). That is a matter of judgement, and is primarily for the local authority to decide. It is only obliged to make such travel arrangements “as they consider necessary” to secure suitable home to school travel arrangements for an eligible child”. In this case the Council has applied a blanket policy which states it will not assess the safety of the route to the pick up point in any case and it has not therefore considered the suitability of the school travel arrangements for C.

Injustice

31. C was entitled to receive free home to school transport because he lived more than three miles from his school. He was also entitled to suitable arrangements covering the entirety of his journey. The Council did not consider this properly. This means that, between September 2021 and September 2022, C was caused avoidable distress and inconvenience in having to use a potentially unsafe walking route to and from the pick-up/drop off point or have to rely on lifts from Ms B when she is able but which sometimes involve him having to wait long periods of time.
32. Ms B has also been adversely affected as she has had to arrange or provide lifts rather than worry about her son’s safety. Though we recognise the Council made a small change to the arrangements in the mornings at Ms B’s request it remains very difficult for Ms B get to work on time and drop C off at the correct time to pick up the bus. The occasions on which C has walked have caused her significant worry due to the nature of the walk. The Council’s recent agreement to move the pick-up/drop-off point is not the result of any acknowledgement of earlier fault but that a change in other circumstances mean it has decided to agree to Ms B’s request.
33. Ms B lost the opportunity to have the matter properly considered as a result of the faults identified in the handling of the appeal and this is turn resulted in uncertainty as to what the outcome may have been had it been considered properly.
34. Ms B incurred time and trouble and been caused a lengthy period of uncertainty throughout the process of appealing the matter through two stages of the Council’s process for that and in having to bring a complaint to this office to have the matter resolved.
35. As the Council has failed to properly apply the law and statutory guidance in this case, and because its policy is flawed, we believe other eligible children may have been affected. This would affect eligible children who must travel to pick up points, whose parents or carers have applied for additional transport or appealed the Council’s decision because they believe the route to the pickup point is unsafe.

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Agreed action

36. When recommending a remedy we seek to remedy the injustice caused as a result of identified fault. The Ombudsman’s guidance on remedies states:
• our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred;
• for injustice such as avoidable distress we usually recommend a symbolic payment to acknowledge the impact of the fault as we cannot put the complainant in the position they would have been had the fault not occurred;
• distress can include anxiety, uncertainty and inconvenience;
• we may recommend a payment to recognise avoidable time and trouble where complainants have been put to avoidably significant trouble in having to appeal and complain in order to have the matter resolved.
37. To remedy the injustice to Ms B and C the Council will, within a month of our final decision:
• pay Ms B £500 to recognise the avoidable anxiety, uncertainty, lost opportunity and inconvenience caused by the failure to properly consider the matter;
• pay Ms B a further £250 to use for C’s benefit and acknowledge the inconvenience to C of not having suitable stress-free travel arrangements properly considered; and
• pay Ms B £100 to acknowledge her time and trouble pursuing the appeal and complaint to resolve this matter.
38. Because of local government restructuring in the Cumbria region in April 2023, the Council will take the following actions to address the systemic issues this complaint identified:
• review and amend that part of its policy which states it does not assess the safety of routes to pick up points. The Council should consider changes to the policy to ensure it complies with the statutory guidance and make clear that it will consider the suitability of arrangements for the entirety of the route to school including safety of routes to pick up points in future; and
• share the learning from its review with the Chief Executives, Monitoring Officers and relevant Portfolio holders at Cumberland and Westmorland & Furness Councils (the new councils which supersede Cumbria County Council in April 2023).

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Final decision

39. We have completed this investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman