Summary: Mr C complained about the home to school travel arrangements made by the Council for his son to get to school. He said the Council had not considered the safety of the route between his home and bus stops his son must use for the journey. We upheld the complaint, finding several flaws in how the Council dealt with this matter; most significantly in denying Mr C a right of appeal. He therefore suffered a missed opportunity to appeal and was put to unnecessary time and trouble. The Council accepts these findings and has agreed action to remedy this injustice.

The complaint

1. I have called the complainant, ‘Mr C’ and his son, Child D. He complains the Council:

• has not considered the safety of the route D must travel to get to or from bus stops when getting a public bus service to and from his school;
• has not adequately replied to his complaint about this matter.

2. Mr C says as a result his son must continue to make a journey that causes him distress. Mr C remains concerned about the safety of the route from his home to the bus stops, located on a major trunk road.

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The Ombudsman’s role and powers

3. 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)
4. 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. 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. Before issuing this decision statement I considered:

• Mr C’s written complaint to the Ombudsman and any supporting information he provided;
• the Council’s replies to Mr C’s service requests and complaints covering the matters under investigation, which pre-dated our investigation;
• any relevant law or Government guidance as referred to in the text below;
• previous published decisions by the Ombudsman where we have considered complaints about the Council’s home to school transport service.

7. I also gave Mr C and the Council a chance to comment on a draft decision statement where I set out my thinking about the complaint. I took account of any comments made before finalising the statement and completing this investigation.

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What I found

Background and key facts

8. Mr C is a single parent with two children. The family live in a village location. The village is bisected by a major trunk road.
9. D, the older of Mr C’s two children, entered Year 5 of his education in September 2021. The Council allocated D a place at a middle school in a town around three miles from the home address. D was in the first cohort of pupils from the village to attend this school. Previously, children from the village were allocated places at a different middle school in the county. The Council had traditionally provided a dedicated free bus service for pupils attending the previously allocated middle school.
10. For children in D’s cohort, attending the newly allocated middle school, the Council said it would instead provide free home to school transport by giving them a bus pass for use on a public bus route. This passes through the village, along the trunk road, and then drops children off near the school.
11. When using the bus D must cross the trunk road on his return journey. There is a light controlled pedestrian crossing he can use. This is close in turn to the junction of two side roads that join the trunk road. There are concerns in the village the pedestrian crossing is not in a safe location as cars turning from the side roads have crossed the junction when on a red light. Mr C has witnessed at least one such incident and is aware of others.
12. As soon as Mr C learnt of these travel arrangements in August 2021 he made representations to the Council expressing dissatisfaction. First, Mr C tried to appeal the travel arrangements. But when he looked at the online appeal form it said this was for appeals when the Council had refused free home to school transport. Therefore, Mr C completed a general enquiry form instead. When, after a few days this was not answered, Mr C contacted the Council’s corporate complaint team.
13. In those submissions Mr C:

• explained his concern that D was unfamiliar with public transport and highlighted he was only nine years’ old;
• that he had safeguarding concerns if D was expected to walk from home to and from the bus stops;
• set out his concerns about the safety of the crossing of the trunk road;
• suggested the Council should introduce a dedicated bus service for children from the village to attend the school.

14. In early September 2021 Mr C received a letter from the Council’s Education Transport Team. He understands this letter was also sent to other parents in the village who had raised concerns about the transport arrangements. The letter set out the Council’s position as follows:

• that for children eligible for free home to school transport, its policy was to always offer a bus pass in the first instance if suitable;
• that this arrangement was used across the county for children attending middle schools;
• that it could offer parents a one-week complimentary bus ticket to accompany their children to and from school to help settle them on the journey;
• that notwithstanding any concerns about road safety it was up to parents to ensure their children could get to and from collection and drop-off points for public transport;
• that the Council was working with the school to monitor arrangements “including the use of the signallised crossing on the [trunk road]” and at the point where the bus drops pupils for school.

15. D began taking the bus to school from September 2021 onward. Mr C was unable to accompany him to the bus stop in the morning as he had to take D’s younger sibling to primary school.
16. At the end of September 2021, Mr C reminded the Council he had made a complaint and received no response. The officer dealing with his complaint told Mr C he was waiting for information from the school transport commissioning service.
17. Mr C chased a response again at the beginning of November 2021. He drew attention to recent incidents of cars crossing the red light on the signal crossing and road traffic collisions in that location. The Council told Mr C it had recently carried out ‘independent safety assessments’ of the route and was considering those.
18. In December 2021 Mr C again chased a reply to his complaint. This time he was told the Council understood the transport commissioning service had replied. He received an apology this had not happened. The complaint team also said they had “requested confirmation of your status in relation to the school transport appeal process”.
19. In January 2022 the Council replied to Mr C’s complaint at stage one of its complaint procedure. In this, the Council:

• said Mr C should have been directed through its education transport appeal process;
• reiterated that its first option was to provide a bus pass for public transport on grounds of sustainability and cost;
• reiterated that this option was used by many pupils attending middle schools across the county;
• noted there were pavements from the home address to the bus collection and drop-off points;
• that it was parental responsibility to ensure children could get to and from collection/drop off points for public transport;
• that an independent school walking route safety assessment had identified potential improvements in the vicinity where children were dropped off or caught the bus near the school.

20. In February 2022 Mr C escalated his complaint. He said:

• the Council had not assessed the risk associated with D getting to and from the bus stops in the village;
• did not allow him to appeal citing the wording on its online appeal form;
• noted that more children would be using the route to the middle school over the coming years (implying the Council may want to reconsider using a dedicated school bus service with pick up points around the village).

21. The Council sent a reply under stage two of its complaint procedure in May 2022. The response discussed further the independent school walking route safety assessment and referred to possible improvements around the school drop off and collection points. It said nothing further about Mr C’s concerns for his son’s journey to and from the bus stops in the village. The letter said the Council could not uphold a complaint the transport provided was unsafe or unsuitable. It also apologised for any confusion about the possible use of appeal procedures as opposed to complaint procedures.

Relevant law and Government guidance

22. Councils have a duty to provide free home to school transport for ‘eligible children’. (Education Act 1996, section 508B)
23. ‘Eligible children’ are children of compulsory school age who:
• Live within statutory walking distance but cannot reasonably be expected to walk to school because of the nature of the route, or because of their special educational needs, disability or a mobility problem; or
• live beyond the ‘statutory walking distance’; or
• receive free school meals, or whose parents receive the maximum Working Tax Credit. (Education Act 1996, Schedule 35B and Home to school travel and transport statutory guidance paragraph 16)
24. The ‘statutory walking distance’ is three miles for a child aged eight and over measured by the shortest route along which a child, accompanied as necessary, may walk safely.
25. Councils must secure ‘suitable home to school travel arrangements, for the purpose of facilitating the child’s attendance at the relevant educational establishment’ and provide these free of charge. (Education Act 1996, s.508B(1))
26. ‘Home to school travel arrangements’ for an ‘eligible child’ are defined as ‘travel arrangements relating to travel in both directions between the child’s home and the relevant educational establishment in question in relation to that child’. (Education Act 1996, s.508B(3))
27. The statutory guidance says in determining whether a child can reasonably be expected to walk for the purposes of ‘unsafe route eligibility’ (when they live within the statutory walking distance) the Council will need to consider a two stage test:

• first, whether the child could reasonably be expected to walk if accompanied and if so;
• whether the child’s parent can reasonably be expected to accompany the child.

28. The guidance continues, “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.”
29. The statutory guidance says about ‘suitability of arrangements’ that:
• Consideration should be given to the walking distance required to access public transport. The maximum distances will depend ‘on a range of circumstances, including the age of the child, their individual needs and the nature of the routes they are expected to walk to the pick up or set down points and should try to be combined with the transport time when considering the overall duration of a journey’.
• Councils ‘may at their discretion use appropriate pick up points when making travel arrangements. For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study’. (statutory guidance paragraph 35)
30. The statutory guidance says local authorities should adopt a specific appeals procedure although it will be left to councils to determine what is an appeal and what is a complaint. The guidance says an appeal can include a challenge to the transport arrangements offered. (statutory guidance Annex 2)
31. The appeals procedure should follow two steps. The first should involve review by a senior officer. The second should be a review by an independent appeal panel which can consider verbal and written representations from a parent. (statutory guidance – Annex 2)

Council policy on home to school transport

32. I have consulted the Council’s Transport and Travel Policy 2022/23 available online. I have assumed there are no significant differences of relevance to this complaint from the version in force for 2021/22 academic year.
33. The Council says that for reasons of sustainability and cost its first preference is to provide a bus pass for children to use public transport when it makes free home to school travel arrangements. (section 6(g))
34. The Council says that when using pick-up and drop-off points for school transport these will be ‘as near to pupils home as possible’. But that it, ‘considers it reasonable for pupils to walk up to one mile to and from a designated boarding/drop off point. The suitability of the walking route to a boarding point is not a consideration for free transport. It remains parental responsibility to deliver pupils to the allocated boarding point if the distance is reasonable (approximately one mile)”. (Section 6(b))
35. In the section on appeals the Council does not say what home to school transport decisions a parent may appeal. But it says parents must use the standard form on its website. The policy explains there is a two stage appeal process;

• the first stage is that is that appeals are assessed by a senior officer in the Children's Services Directorate. Parents will receive a response within 20 working days ‘with detailed reasoning’ providing the outcome of the appeal;
• if still dissatisfied then the second stage is that an appeal will go to a Corporate Relations Officer and ‘if agreed’ a Panel will convene within 28 working days of the request.

Council complaint procedure

36. The Council publishes details of its corporate complaint procedure online. It has two stages. At the first stage a senior manager should reply to the complaint within 20 working days. If this is not possible the Council says it will advise the complainant of an alternative date.
37. At stage two a Consumer Relations Officer will reply to the complaint, ‘ideally within 25 working days’.

Previous relevant Ombudsman decisions

38. In November 2019 we decided a complaint under our reference 18 001 482. We found the Council at fault for not following a clear procedure when a parent wanted to appeal a school transport decision. Their case had been considered at stage one of the appeal process but then subsequently considered under the complaint procedure. We recommended the Council ensure it was following Government guidance on how to conduct appeals.
39. In January 2020 we decided a complaint under our reference 19 006 385. We found the Council at fault for ‘confusion in the way [it] operated its two stage appeal process and complaints process’. In particular we criticised the practice of a Corporate Relations Officer deciding if an appeal should go to the second stage of the appeals process, finding this incompatible with the statutory guidance. The Council agreed it would either make its appeal process compliant with statutory guidance or give a clear explanation if this was not to be followed. It said that it would ensure relevant officers knew the difference between appeal and complaint procedures.
40. In February 2020 we decided a complaint under case reference 18 012 656. In the body of that decision we noted that while statutory guidance allowed the use of boarding points, ‘the Council must still establish whether a child ‘cannot reasonably be expected to walk’ to a boarding point or a parent cannot reasonably be expected to accompany their child to the boarding point’.
41. In October 2020 we made a decision under case reference 19 013 953 finding the Council at fault for ‘wrongly adopting a blanket policy that all parents were responsible for delivering children to bus boarding points’. I have noted from that decision:

• the Council policy on home to school transport relevant to the issue of boarding points used the same wording as that quoted at paragraph 34 above;
• that we found fault in the rigid application of this policy as it was incompatible with statutory guidance quoted at paragraphs 26 and 29 above. We said that where the Council provided free home to school transport to an eligible child it must consider the safety of the whole route from home to school, not just from the bus boarding point. It must consider the circumstances of the child and whether the route to a boarding point may be considered safe if the child is accompanied by an adult. And if it is reasonable to expect a parent to accompany their child given factors such as the child’s age, the parents’ circumstances and so on;
• that the Council said it accepted these findings and that it would review its policy. It also said it would revise its online appeal form to allow for the recording of more specific details around boarding points. It would give revised guidance to its officers in the light of this decision.

42. Commenting on a draft of this decision statement the Council told us that despite not changing the wording of its home to school transport policy, it accepted it must consider the safety of the route from home to the boarding point when making school transport decisions. It sought to reassure us this advice had been communicated to relevant staff further to the decisions referred to above.

My findings

43. The issue at the crux of this complaint is that Mr C is unhappy with the free home to school travel arrangements made for his son, D, to attend his allocated middle school. Mr C made his concerns known to the Council as early as August 2021, as soon as he heard what the Council proposed. Mr C has explained why he thinks the arrangements made for his son are unsuitable. He has cited various factors including his son’s age; potential safeguarding concerns and the safety of the traffic crossing his son must use when returning home at the end of the school day. He has also referred in his complaint to being unable to accompany his son to the bus stop in the morning.
44. It is not my role to adjudicate on the merits of Mr C’s case. We are not an appeal body that can use our judgement to replace a decision taken by the Council on the suitability of home to school transport arrangements. Instead, our role is to look at the process followed by the Council. To ensure that those in Mr C’s position, who wish to appeal a school transport decision, have had their appeal considered properly and fairly.
45. In this case I find a series of failures by the Council in its handling of Mr C’s case. The first and most obvious is that it has never treated his expressions of dissatisfaction as an appeal. I quoted above the relevant extract from statutory guidance that makes clear a parent can appeal ‘the transport arrangements offered’ by the Council and not just a decision to refuse free home to school transport. From the outset in August 2021, the Council should therefore have ensured Mr C’s expression of dissatisfaction with the transport offer for his son was treated as such. It did not do so and missed repeated opportunities to correct this in the subsequent months. This was a fault.
46. The failing appears to reflect a wider confusion on this point. Because on its website the Council does not make clear either in its policy or on its appeal form that an appeal can include one against the transport offered. Mr C was misled by the online appeal form because it suggested he could only appeal a refusal of home to school transport. The Council is therefore further at fault for maintaining the current format of its online appeal form.
47. A third failing is the Council replies to Mr C’s representations indicate it is failing to follow the law and guidance when it comes to assessing the suitability of children travelling between home and bus boarding or dropping-off points. There is no fault in the Council having a policy that requires the use of boarding points. And it is not required to run a dedicated school bus, even though I understand why Mr C would think this sensible. There is also no fault in the Council starting from the assumption a parent can reasonably be expected to accompany their child to those boarding points.
48. But what the Council cannot say is that ‘the suitability of the walking route to a boarding point is not a consideration for free transport’. Because where the Council receives representations that a journey from home to the boarding point is unsuitable for an individual child – whether that be on grounds of road safety; the child’s needs or parental circumstances – the Council must consider those representations on their merits.
49. I note the reply to Mr C’s complaint at stage one of the complaint procedure did offer some limited comment on the safety of the route from D’s home to the bus stops. But this falls short of what we would expect to see which is that the Council has assessed the whole of D’s home to school route and provided full reasoning if it considers the boarding and drop off points used are ‘safe and reasonably stress free’.
50. The fourth failing is notwithstanding that Mr C’s representations have been wrongly treated as a complaint rather than an appeal, he has had to wait far too long to receive responses from the Council. Stage one complaint responses should take around a month, but Mr C had to wait around five months for the Council to reply. Stage two responses should take around four to six weeks, but Mr C had to wait three months.
51. Fifth, those responses, especially the stage two response failed to engage with Mr C’s concerns. Mr C’s request to escalate his complaint was focused and clear to follow. He stressed his concerns about the safety of his son’s journey from home to the boarding or drop-off point. But the reply only talked about potential safety hazards at the opposite end of his son’s journey – something Mr C has never raised with the Council.
52. Next, I note the Council appeals procedure envisages at the second stage that a response may be provided by a ‘Corporate Relations Officer’, which I assume is the same as a 'Consumer Relations Officer’. This is wrong also. Because the statutory guidance makes clear the Council cannot use gatekeeping to decide which appellants have access to an independent panel to hear a home to school transport appeal.
53. It is concerning that many of the criticisms I have made above of the Council we have made before when looking at other cases. The Council should know therefore that it cannot adopt a blanket policy of ignoring concerns raised by parents of the safety of home to boarding or drop-off points as part of the home to school journey. It knows also that it must have a clear, accessible appeal procedure that operates according to statutory guidance and allows for appeals about the type of transport offered. The Council has acknowledged these matters in the past and promised to make improvements. It has sought to assure me it has made those improvements. But Mr C’s case calls into question such commitments. Especially as the Council has not changed the wording of policy nor the online appeal form.
54. In considering the injustice caused to Mr C, I cannot second guess what might have been the outcome of an appeal the Council should have offered him no later than September 2021. But the denial of that right of appeal is itself a significant injustice and a source of distress. As is the uncertainty that results.
55. Added to which Mr C has also experienced considerable time, trouble and frustration in pursuing this matter given the failure to signpost him through the correct appeal procedure and the delays. That this matter has not been resolved 12 months since D started middle school reflects poorly on the Council.

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Agreed action

56. The Council accepts these findings. To remedy the injustice set out above it has agreed that within 20 working days of a decision on this complaint it will:
1. apologise to Mr C accepting the findings of this investigation;
2. pay Mr C £250 as a financial remedy to recognise the loss of his appeal rights while his son was in Year 5 of his education and the time and trouble he has been put to as a result;
3. agree in writing that it will now treat Mr C’s case as that of an appeal; the Council will provide a response to Mr C under stage one of that procedure and if he is dissatisfied offer him the chance to then escalate his appeal to an independent appeal panel at stage two.
57. As part of the appeal agreed at paragraph 56c) above the Council should take account of Government advice contained in Annex 2 of the statutory guidance on home to school transport. This includes making clear how it has assessed the suitability of the walking route including any reference to the standard followed (for example guidance published by Road Safety GB). This will be most relevant when considering Mr C’s concerns on the safety of the route from his home to and from the bus stops.
58. In the event the Council completes the steps at 56c) above and Mr C remains dissatisfied then he can make a fresh complaint to the Ombudsman. There will be no requirement on him to make a further corporate complaint to the Council first.
59. The Council has also agreed to learn lessons from this complaint. Within three months of a decision on this complaint it will:
1. complete a review of clause 6b) in its home to school transport policy. The clause should be revised to take account of the repeated criticisms made by this office. In particular, the statement ‘the suitability of the walking route to a boarding point is not a consideration for free transport’ is incompatible with statutory guidance, because dependent on the individual circumstances of the case, it can be a consideration;
2. complete a review of clause 6d) of its policy to make clear that grounds of appeal can include the type of transport offered; also to review the reference to the Corporate Relations Officer deciding which cases should be referred to an independent appeal panel; the Council should either end this practice or have its policy explain any exceptional circumstances where it believes a case should not be passed for an independent appeal;
3. revise its online appeal form to make clear a parent can appeal the transport offered by the Council where it has offered this;
4. ensure all officers working within its school transport service and its corporate complaints service receive a briefing covering points a) to c) above.

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Final decision

60. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr C. The Council accepts these findings and has agreed action that I consider will remedy that injustice. Consequently, I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman