Summary: Mr G complained the Council wrongly refused his application for free school transport for his son. As a result, Mr G said he and his son experienced distress. We found no fault in the way the Council applied its policy or considered Mr G’s appeal. We cannot therefore criticise the merits of its decision.

The complaint

1. The complainant, whom I shall refer to as Mr G, complained about the Council’s decision to refuse his free school transport application for his son. He said it failed to properly consider the walking distance to the school and his son’s personal circumstances.
2. As a result, Mr G said he and his son experienced distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
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. As part of my investigation, I have:
• considered Mr G’s complaint and the Council’s responses;
• discussed the complaint with Mr G and considered the information he provided;
• considered the information the Council provided in response to my enquiries; and
• considered the relevant law and Council’s Home to School Transport Policy.
7. Mr G and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The relevant law

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.
12. Paragraph 22 of the Home to School Travel and Transport statutory guidance states ‘the measurement of the statutory walking distances is not necessarily the shortest distance by road. It is measured by the shortest route, along which a child, accompanied as necessary, may walk safely. As such the route measured may include footpaths, bridleways and other pathways as well as recognised roads’.
13. Paragraph 24 states ‘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.’

The Council’s Policy

14. The Council’s Home to School Transport Guidance (the Policy) says it will provide funded transport for children attending their nearest appropriate school where the distance from home to school is over the statutory walking distance. In determining the appropriateness of schools, it will only consider whether:
• the school is appropriate to the age of a child; and
• the school is appropriate for the ability of a child.
15. The Council uses its own software to measure the nearest appropriate school from a child’s permanent home to a school. Distances are measured by the shortest available walking route which includes public footpaths, bridleways, other footpaths as well as recognised roads. However, the initial assessment will not consider whether a route is hazardous to children.
16. The Council’s policy sets out it parents can choose schools which are not the nearest appropriate school for transport purposes. However, this may mean they forego their rights to free school transport.
17. The Council provides an on-line ‘nearest school checker’ to enable parents to find out their nearest suitable school for transport purposes by submitting their postcode. The Council’s Policy says it strongly recommends parents to check which school is their nearest suitable school before they apply and seek guidance from the Council if required.
18. The Council offers a two-stage appeals process for parents who disagree with the Council’s decision to refuse free school transport.
• The Stage one involves a review by a senior officer.
• The Stage two appeal is heard by the County Council’s Transport Regulation Committee Appeal Panel. The Panel will consider if the Council properly applied its Policy. This includes whether the strength of a case outweighs the additional costs to the Council in providing the free school transport under its discretionary powers.

What happened

19. In 2021 Mr G’s son, Child X, transitioned from primary school to secondary school.
20. Mr G applied for schools to the Council in which he set out his preference for a Grammar School (School A). He also listed other schools at a lower preference, including School B which is located next to School A.
21. The Council offered School A to Child X, which Mr G accepted.
22. Mr G applied for Child X to receive free school transport to School A, but the Council found the nearest suitable school for Child X was School B. It told Mr G it was its policy to only provide free school transport to a child’s nearest school. As he had not chosen the nearest suitable school, School B, it had refused his free school transport application.
23. Mr G asked the Council to review its decision as set out in its Policy. He said Child X should get free School transport because:
• the walking distance to School A and School B are both around 2.8 miles, as they are located next to each other;
• the walking route to School A is unsafe for Child X as it includes a steep hill, slippery steps, and roads with no footpath;
• a safer route is possible, but this would be over the statutory walking distance of 3 miles; and
• Child X has medical conditions which impacts his eyesight and ability to walk long distances.
24. The Council’s Transport Appeal’s panel (the Panel) considered Mr G’s appeal. It decided the Council had followed its Policies correctly before it reached its decision. It explained:
• Child X had been offered his preferred school, School A. However, using the Council’s software, School B was the nearest suitable school for Child X. It was therefore correct to refuse Mr G’s free school transport application;
• its policy has no exemptions specifically for Grammar Schools;
• it would not consider Mr G’s concerns about the walking route to School A as Child X was not attending his nearest suitable school;
• it had considered its discretionary powers to grant free school transport. However, it found Child X’s needs did not outweigh the additional cost the Council would have to provide free school transport; and
• a subsidised annual bus pass was available for Mr G to reduce the cost he may have to pay for Child X’s transport to school.
25. Mr G was unhappy with the Council’s decision. He disagrees with the Council’s calculation of the travel distance to the schools. He also said it failed to answer some of his questions and concerns, and properly consider the merits of his appeal. So, he asked the Ombudsman to consider the matter.

Analysis

26. The law does not specify how a council should determine which is the nearest school. The Council’s policy sets out that it calculates the nearest suitable school by measuring the shortest available walking route using its own software. The Council is entitled to take this approach.
27. We expect councils to explain their policies clearly to enable parents to make informed decisions when applying for schools about whether their child might be eligible for school transport.
28. The Council’s Policy and website sets out how it calculates the nearest suitable school for school transport purposes. It provides an online checker, so parents are aware of the nearest suitable school for transport purposes when they apply for a school place. It also warns parents they may forego free school transport if the nearest suitable school is not their first preference and encourages parents to contact the Council if they are unsure.
29. The Ombudsman is not an appeal body. Our role is to consider whether there was fault in the way the appeal panel reached its decision.
30. I found the Council’s decision to refuse school transport was in line with its School Transport Policy which is published and clearly set out online. The Council was therefore not at fault.
31. The Council considered Mr G’s appeal at stages one and two of its appeals procedure. The Appeal Panel found the Council had properly applied its Policy.
32. I understand Mr G believes the Council and the Appeal Panel failed to answer his questions and address his concerns about Child X’s walking route to School A and B. However, as School A was not Child X’s nearest appropriate school, it is not the Council’s Policy to consider such matters further.
33. The Appeal Panel also considered the Council’s decision to refuse free school transport under its discretionary powers. In doing so, it found there were no exceptional reasons to award school transport. The appeal decision letter shows the Panel considered Mr G’s arguments and the information he provided in reaching its decision. The Council has also confirmed School B was not oversubscribed and Child X would have received a place if Mr G had selected this as his first preference.
34. I have seen no evidence of fault in the way the Council reached its decision to refuse the appeal. I cannot therefore criticise the merits of its decision.

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Final decision

35. I have completed my investigation with a finding of no fault by the Council.

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Investigator's decision on behalf of the Ombudsman