Summary: there was fault in the Council’s handling of the complainant’s appeal against its decision to refuse free home to school transport. This caused her injustice. The Council will now arrange a fresh appeal with a different panel so that her appeal may be heard properly.

The complaint

1. The complainant, whom I shall refer to as Ms B, complains the Council has failed to properly consider her application and subsequent appeal for free home to school transport for her two children. She says this resulted in the wrong decision being reached. Specifically, she says it failed to:

1. correctly measure the home to school distances; and
2. invite her to the Transport Appeal Panel that considered her appeal in November 2021 before dismissing the appeal.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. 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.
6. 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.
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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What I found

What should have happened

8. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. 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. ‘Eligible children’ include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above); and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

9. The route to be considered is ‘the shortest route along which a child, accompanied as necessary, may walk safely’. The route the council uses may include footpaths and other pathways as long as they are safe. Statutory guidance does not specify a method councils must use to measure distances but it must be able to demonstrate the method it uses.
10. The Council has measured the shortest walking route to the nearest eligible school (School A) to be 8.89 miles. It has measured the shortest walking route to the school Ms B’s children attend (School B) as 9.34 miles. On the section of the Council’s website that deals with secondary school applications this also identifies School A as being the nearest school and gives the same home to school distance measurements for schools A and B. Sometimes councils use different ways of measuring home to school distances for the purposes of school applications and school transport. This does not appear to be the case here.
11. Councils are required to provide free transport to pupils who are entitled to free school meals or if their parents are in receipt of maximum working tax credit if the school is between 2 and 6 miles and there are not three or more suitable nearer schools.
12. Councils have discretion to provide free home to school transport to children who do not qualify under the criteria outlined above.
13. The statutory guidance sets out a recommended two-stage appeal procedure for parents who wish to challenge aspects of decisions about home to school transport including transport arrangements offered and the safety of the route. The two-stage process recommended is:
• Stage 1: review by a senior officer; and
• Stage 2: review by an independent appeal panel.

What happened

14. Ms B has two children who attend School B. Ms B applied for free home school transport for the year 2021/2022 but was refused.
15. Ms B appealed against the decision to refuse transport in late August 2021. She disputed the Council’s home to school measurements stating that her own measurements showed that School B was closer to their home than School A.
16. The Council replied by letter around three weeks later. The letter detailed:
• the statutory grounds for providing transport which included the child having to attend their nearest suitable school;
• children from families on low incomes including those on maximum working tax credit transport will be provided to one of the three nearest schools where these are between 2 and 6 miles from home;
• Ms B’s children were not entitled to transport because they were not attending their nearest eligible school which was School A;
• The measurement of the statutory walking distance used the shortest available walking route to the nearest transport “node” to the front door of the home address, using the Council’s GIS mapping system;
• it had provided free transport to Ms B’s children for the school year 2020/21 as an exception and to allow Ms B the opportunity make alternative arrangements or pay for transport. The cost for transport was now £837 per child per year.
17. Ms B asked for a review in September 2021. In her appeal she said:
• the Council had incorrectly measured the distance to School B stating to was 9.5 miles from her home and that School A was 9.9 miles from her home so it had wrongly stated that School A was the eligible school for the purposes of transport eligibility; and
• she and her husband were self-employed and earning less the £7,000 per year at that time. She confirmed she received working tax and child tax credits and provided details of the amount she received for each of these per month. The form asks the appellant to provide evidence to demonstrate financial hardship if this is the basis of the appeal.
18. The Council posted a letter to Ms B dated 12 October 2021 stating it had received her appeal on 7 October. It said her appeal would take place on 10 November and would be considered by a panel of seven people including the chair of the panel. It advised that due to Covid-19 restrictions she could not attend in person but that she could attend virtually and that she should contact the Council if she did wish to attend virtually so that could be arranged.
19. The appeal went a head on 10 November. Ms B did not attend virtually. She says she did not receive the invitation to attend. The panel that considered the appeal comprised five people. The notes of the panel’s consideration of the appeal demonstrate:
• the chair confirmed all the panel members had received the relevant paperwork;
• the chair highlighted that Ms B was dissatisfied with the measurement of the home to school distances to schools A and B. She also said that Ms B had provided evidence of being in receipt of Working Families Tax Credit but had not declared her income;
• one of the panel members asked why Ms B ‘s children had been awarded transport for the school year 2020/21. The Council’s advisor to the panel said that transport was provided because there was space on the bus and offered the transport “as a temporary solution to help parents during a difficult time of the pandemic” even though they were not eligible. He went on to say that the route had been altered and the temporary provision of transport withdrawn;
• the panel members had some questions about the family’s financial situation but these queries could not be answered as Ms B did not attend the meeting; and
• the notes state the panel agreed the appeal should not be upheld as the family was not eligible.

Was the Council at fault and did this cause injustice?

20. The Council says its records confirm that the letter to Ms B inviting her to the appeal hearing was posted to her. Ms B is clear that she did not receive this. It does not seem the Council sends such letters by recorded or signed for delivery so there is no way of confirming that it was delivered. I have no reason to dispute Ms B’s assertion that she did not receive it so whilst I am not disputing that it was sent by the Council either, I accept that it was not received by Ms B and it seems possible it was lost in the post. The Council has confirmed it does not send letters by email in addition to the post so I accept that Ms B did not receive an invitation to attend the appeal hearing virtually. So she was unable to attend.
21. I do not consider the evidence in the form of the notes of the appeal panels’ deliberations confirm that the panel properly and fully considered Ms B’s appeal. Specifically, the panel notes do not demonstrate that the panel properly:
• considered her concerns about the distance measurements to Schools A and B or that panel members asked the council officer attending about this to satisfy themselves they had looked into these concerns;
• that it was in a position to fully consider the financial case that it appears Ms B was trying to make and it did not choose to seek further information on this before reaching a final decision. Concern was expressed about the lack of information about income but this is not required: it is evidence of receipt of free school meals or maximum level of Working Families Tax credit that is the relevant information and the panel did not seek or have information on whether the amount of working families tax credit received was the maximum amount or refer to this in its decision-making;
• that it was in a position to reach the conclusion that it did, that the family was not eligible, given the points detailed above; and
• considered whether there were grounds for it to consider whether it should make discretionary provision under its powers to do this.
22. Whilst I accept that Ms B could have provided more written information regarding her income in addition to referring to this in the form, I also note that the form does not specifically ask appellants to provide such information. On balance therefore I consider there was fault in the panel’s consideration of this appeal. This caused injustice to Ms B as her appeal was not thoroughly considered. This was exacerbated by her not receiving an invitation to attend: had she been able to attend she would have been able to provide more information on her financial circumstances which may have resulted in the panel reaching a different decision.

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Agreed action

23. The Council will offer Ms B a further appeal panel with different panel members to consider her appeal properly and to give her the opportunity to attend to make her case. It should do so within a month of the date of the final decision on this complaint.
24. In addition the Council will confirm within three months of the date of the final decision statement that it has made arrangements to:
• email invitation letters to appellants in addition to posting these to try to avoid difficulties where post may not be delivered;
• remind panels they should consider their powers to agree discretionary provision of transport when the eligibility criteria as detailed are not met; and
• remind panels of the need to fully demonstrate that they have thoroughly considered the grounds for appeals and the evidence provided when reaching decisions.
25. If a subsequent appeal does agree to make transport provision the Council will consider reimbursing the costs Ms B has accrued in making her own transport provision since the consideration of her appeal last year.

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Final decision

26. There was fault in the Council’s handling of the appeal and that it should arrange a fresh appeal with a different panel so that her appeal may be heard properly now.

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Investigator's decision on behalf of the Ombudsman