Summary: Ms X complained about the outcome of a home to school transport appeal for her son. She said the panel did not properly all the information she provided or give clear reasons for its decision. There was fault in the Council’s record keeping but this did not cause Ms X a significant injustice as it did not affect the outcome of the appeal. Service improvement is recommended.

The complaint

1. Ms X complains about the Council’s decision to refuse her son free home to school transport from September 2022. Ms X says this will cause financial difficulty and may affect her employment as she relies on her children using school transport to get to work on time.

Back to top

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 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)
3. 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)

Back to top

How I considered this complaint

4. I have considered the information provided by Ms X and the Council.
5. I have discussed the complaint with Ms X by telephone.
6. I have considered the Clerk’s notes of the transport appeal panel, decision letters and the Council’s home to school transport policy.
7. I have considered relevant law and guidance including:
• Education Act 1996 (‘the Act’)
• Department for Education ‘Home to School transport guidance’, July 2014 (‘The Guidance’)
• Ombudsman’s Focus Report ‘All on Board? Navigating School Transport Issues’, 2017
• Ombudsman’s ‘Principles of Good Administrative Practice’.
8. Ms X and the organisation had an opportunity to comment on my draft decision. I considered any comments received 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 the final decision with Ofsted.

Back to top

What I found

Relevant Law and Guidance – School Transport

10. Local authorities have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances (s508B and Schedule 35B of the Education Act 1996).
11. 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.
12. 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’.
13. ‘Eligible children’ are defined in Schedule 35B of the Act as:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16)
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem
• 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
• children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit in certain circumstances defined in the Act including if the school is between 2 and 15 miles and is the nearest school preferred on the grounds of religion or belief.
14. At paragraph 24, the Home to School Travel and Transport statutory guidance sets out that ‘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. A smaller number of cases will need to be considered during the course of the school year eg, as a result of families moving to a new area’.
15. Local authorities also have discretion to provide transport for children who are not entitled to free transport (Education Act 1996, s.508C). The Council may pay all or part of the reasonable expenses for children who would not otherwise be ‘eligible children’. The guidance says councils are best placed to determine local needs and circumstances and will need to balance demands for discretionary transport against their budget priorities.
16. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55)
17. The Guidance recommends councils adopt the following appeals process:
• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us. (Annex 2 of the guidance)

The Council’s policy

18. The Council’s policy says where it has a legal obligation to provide free school transport normally this will be a bus or rail service from a home address to the nearest school.
19. The policy says if a child is not eligible for free transport they may be able to access the Vacant Seat Payment Scheme which is where the Council will ‘sell’ seats on a bus transporting eligible children in return for a termly contribution.
20. The policy says: ‘We cannot help with transport if you choose to send your child to a school other than the nearest school’.
21. The policy says discretionary transport will be considered in cases of:
• Permanent exclusion or managed moves
• House moves
• Placement in temporary housing
• Changing school for any other reason
• ‘Other exceptional circumstances where the pupil may be at risk of educational disruption. Evidence to support such applications will be required from relevant professionals. Each application will be considered on its own merits’.

What happened

22. Ms X has two children, whom I shall refer to as Y and Z. Y and Z both attend School A. School A is not the nearest school to their home by distance, but at the time Y applied for a school place the nearer school (School B) was over-subscribed. Y therefore received a place at School A and was provided with free home to school transport by the neighbouring Council (where he then lived).
23. In 2018, Z joined his older brother at School A. Ms X says she wanted her children at the same school and to attend School A because it was a faith school.
24. In 2020 due to parental separation Ms X moved house. Ms X says she works two jobs and relies on the children using the school ‘bus’ to be able to get to work on time. The Council told me in response to my draft decision that there were places available at the nearer school, School B when the family moved into the area in 2020.
25. Ms X applied for free home to school transport for Z in 2021.
26. Ms X says the difference in distance from their home between School B (their nearest school) and School A is 250 yards.
27. The Council approved transport on the basis that as Y was receiving free transport there was a spare seat that Z could use. The Council said this was a ‘temporary exception for the 2021/22 academic year’ only. Z could share Y’s transport until Y left School A in July 2022. After that Z would have to move to School B to continue to receive free home to school transport or travel to School A at Ms X’s expense.
28. Ms X appealed. Ms X says Z has special educational needs (SEN), is awaiting further diagnosis and is settled at School A. Ms X is happy with the additional support Z receives at School A for his SEN and thinks he will be distressed if he must move to a new school. School A is also a faith school, which is Ms X’s preference. Z’s school provided evidence it would be detrimental for Z to move and Z’s attendance had been much improved since Y and Z had been using school transport. Ms X does not consider the Council and appeal panel properly considered the evidence about Z’s SEN.
29. The Council’s stage one appeal said the Council had made clear siblings would not necessarily get transport if they joined a school that was not their nearest school with places available. It also said there was no automatic right to a faith school. The Council said it had made the temporary exemption in 2021 for Z to use Y’s transport for one year only.
30. The appeal documents show Ms X referred to the transport as a ‘bus’ and the Council referred to it as a taxi.
31. Ms X told me the Council provided both children with a free bus pass. This suggested the cost to School A and School B was cost neutral as both journeys would have been on a school bus route.
32. In response to my draft decision, the Council told me this was incorrect. There is no school bus to School A, the vehicle used for Y was commissioned under taxi arrangements at a cost of £13,387. It was commissioned to transport three students, including Y, but the other two students have left the school leaving Y as the only pupil using the transport. It would therefore represent a significant additional cost to maintain the taxi for Z after Y leaves School A.
33. When Ms X appealed to stage two the appeal panel upheld the decision to refuse. The panel questioned Ms X about her work, about Y’s secondary school, about wrap around childcare available and about how she intended to get both children to school when Y left School A in 2022.
34. In response to my draft decision the Council confirmed Ms X was not entitled to free school meals or transport based on low income.
35. The Council confirmed places were available at the nearest school at the time of the panel hearing and there was a bus route to School B. The panel noted there was wraparound childcare at School A if Ms X needed to transport Y to his new school although Ms X indicated she did not intend to use this as she considered it unsuitable.
36. The panel recorded all members refused transport. No reasons are recorded in the Clerk’s notes. The decision letter stated Z was not entitled to free transport, but the Council may be able to offer a place on a bus under the Vacant Seat Payment Scheme. Again, no reasons are stated.
37. Ms X says the panel did not have accurate information and did not properly consider whether to use its discretion to award transport.
38. Ms X also complains that in February 2022 she received a letter from the Council, via her Member of Parliament (MP) who was assisting her, stating the Council would provide transport and offering £100 remedy for council error. This this turned out to have been sent to her by mistake.

Analysis

39. The Council did send an incorrect response to the MP. This was fault but a clerical error does not mean the Council should provide free transport. The Council has provided an apology, which is an appropriate remedy.
40. The Guidance says that appeal decisions should set out the nature of the decision reached; how the review was conducted; what factors were considered; and the rationale for the decision reached.
41. The Ombudsman’s Principles of Good Administrative Practice says councils should be open and accountable, giving clear reasons for decisions and keeping proper records.
42. The stage one appeal says Z was not eligible for free transport as he was not attending his nearest school.
43. At stage two, neither the Clerk’s notes nor the appeal decision sets out the rationale for the Stage two panel’s decision. This is fault. It would appear the panel has decided the Council had followed its policy of not providing transport to a school which was not the nearest qualifying school and so Z was not eligible under s.508B. It is not clear what its decision was under s.508C but based on the information the Council has now given me about the taxi cost, this would have been based on budget considerations.
44. It is unclear whether the panel knew that there were places available at the nearer school (School B) when Ms X moved into the area. However, as the Council has told me there were, this information would not have altered the outcome of the appeal.
45. The panel has not referred to the costs of travel to School A and School B in its records or addressed Ms X’s comments about there being a ‘bus’ to School A. It therefore appeared to me on reading the records that perhaps this was a cost neutral proposal by Ms X as buses were available to both schools. The Council has told me in response to my draft decision this is wrong; there is a bus to School B, but no direct bus to School A. Continuing to provide Z with transport would create a significant additional cost of a sole taxi.
46. The Guidance requires the panel to balance Z’s individual circumstances against the Council’s budget considerations. The panel has not explained what weight it gave the evidence from School A that it would be detrimental for Z to move to School B or made any mention of the cost differential between Z receiving free home to school transport to School A versus School B. This is fault. However, I am satisfied the panel did understand the cost to the Council was a place on a direct school bus route to School B versus an individual taxi to School A even though it has not included this rationale in its decision record. The panel also asked questions to confirm childcare was available if Ms X could not take Z to school herself.
47. Therefore, while I consider there was fault in the way the decision was recorded, I do not consider this affected the decision reached; the panel’s decision was undoubtedly based on this cost difference and there is evidence from the notes of the hearing the panel considered Ms X’s concerns including the evidence about Z’s SEN.

Back to top

Agreed action

Within four weeks of my final decision

48. The Council will ensure Clerk’s notes and decision letters provide sufficient detail to meet the statutory guidance.

Back to top

Final decision

49. I have completed my investigation. There is fault in the way the Council appeal panel recorded its decision as it failed to clearly set out the reasons for the decision reached. However, this fault did not cause an injustice as it would not have altered the decision made.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman