Summary: Mr B complains the Council removed a fare paying school bus service without consulting parents. Mr B says he relies on the service to get his child to school. He says the Council’s decision is having a significant financial impact as he needs to take time off work to take his child to school. The Ombudsman finds fault in the Council not consulting on the change and not reviewing its position following a further exemption.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council removed a scheme, whereby parents whose children were not eligible for free school transport, could pay a fare to access a place on an existing school bus. Mr B says he relied on the scheme to get his child to school. He says the bus is still running and has spaces, so it does not make sense for the Council not to allow him to continue to purchase a seat. Mr B says he works shifts and has had to take time off work for the school run. He says this has had a significant financial impact.

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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 considered the information Mr B provided and spoke to him about the complaint. I obtained legal advice in relation to the PSVAR exemptions. I sent a copy of my draft decision to Mr B and the Council for their comments before making a final decision.

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What I found

Law and Guidance

6. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age. Eligible children include children living outside the statutory walking distance from the school.
7. Local authorities also have discretion to provide transport for children who are not entitled to free transport. In such cases the authority can make charges. The Home to School Statutory Guidance (“the Guidance”), says ‘it is very much for the individual local authority to decide whether and how to apply this discretion’.
8. The Guidance says local authorities should consult widely on any proposed changes to their school travel arrangements with all interested parties. It says that good practice suggests the introduction of changes should be phased in so children who start under one set of arrangements continue to benefit from them until concluding their education at that school. It says parents make choices based on the home to school travel arrangements and any changes might adversely impact on family budgets.
9. The Public Services Vehicle Accessibility Regulations 2000 (“the Regulations”) provide that all public service vehicles carrying over 22 passengers on local and scheduled routes must have an accessibility certificate. For this, the vehicle must comply with certain accessibility requirements.
10. In 2019 the Department for Transport (“DfT”) confirmed the Regulations applied to home to school services that carried a mixture of fare paying and non-fare paying passengers. However, it said it understood some providers were not in a position to provide compliant services and would cease to provide mixed services when the Regulations came into effect. It therefore granted a limited exemption from the Regulations for services where no more than 20% of the passengers were fare paying, in order to allow operators time to become compliant. The exemption was due to expire on 31 December 2021.
11. In July 2021 the DfT extended the exemption to 31 March 2022. In December 2021 the DfT further extended the exemption to 31 July 2021.

Background

12. Mr B’s child attends a local school. She has one more year of school to complete in 2022/23.
13. In previous years the Council offered a fare paying scheme so that students who were not eligible for free home to school transport could pay a fare to access a place on a school bus, provided there was space. Over several years the number of people accessing the fare paying scheme dropped significantly. In 2020/21 the Council sold 15 fare paying places.
14. Mr B was one of the people who accessed the scheme.
15. In March 2021 the Council held a meeting at which it discussed whether to continue the fare paying scheme for the 2021/22 year. The Council’s home to school transport vehicles were not complaint with the Regulations. It was aware the exemption to the Regulations was due to end on 31 December 2021 and, at that time, it was not clear if the DfT would extend the exemption. Therefore, it was possible that at the end of that year, the Regulations would prevent it from taking fare paying passengers on its existing school services.
16. The Council considered three options:
• To remove the fare paying scheme
• To upgrade the three vehicles that were being used by fare paying passengers to be complaint with the Regulations
• To upgrade all its services to be compliant with the Regulations
17. The second option would have cost slightly more than the money it expected to receive from fare paying passengers that year. However, just upgrading the three services would mean inconsistency across its services and the Council could not predict which parents would apply for fare paying transport and on which services in future years. The third option would cost significantly more.
18. The Council decided to remove the fare paying service. It amended its Home to School Transport arrangements to reflect that the service was no longer offered.
19. I asked the Council whether it consulted with parents before removing the scheme from its transport arrangements. The Council said it did not have a duty to consult as the arrangements were discretionary. It said it would not have been practically possible to undertake a meaningful consultation. The families who benefited from the scheme in previous years were not necessarily the ones who would apply in the coming years. Also, it would have been very unlikely to change the Council’s decision as it already knew the decision would cause inconvenience to those families.
20. Mr B and his former partner reapplied for the scheme for the 2021/22 year. However, the Council had removed the scheme. Mr B says there are spaces on the bus his child used to take and there is no reason they could not continue to access this.

Findings

21. I do not find fault with the decision itself to remove the fare paying service. It is not a mandatory service, and it is at the Council’s discretion whether it offers this going forward. However, I find fault with the Council not consulting relevant parents before making its decision, and for not properly considering whether to phase the scheme out for existing customers. I also find fault in the Council not properly reviewing its decision in light of extensions to the exemption.
22. The Council says it does not have a statutory duty to consult. However, the statutory guidance is clear that councils should consult with interested parties when it makes any changes to its home to school transport arrangements. The fact the arrangements were discretionary does not mean the statutory guidance on consultation does not apply. The fare paying scheme was part of the arrangements and its removal meant the Council changed its arrangements.
23. The Ombudsman’s position is that Council’s should follow the statutory guidance unless it has good reasons not to. I have therefore considered whether the Council has provided good reasons for diverting from the statutory guidance in this case, by not consulting.
24. I understand the Council’s point that anyone could apply in future years. Therefore, it may not have been practical to consult on whether it offered the scheme to new people in future years. However, the statutory guidance also says it is good practice to phase in changes, so that people who have relied on them continue to have access until they leave the school. Given the small number, it would not have been difficult for the Council to identify those already using the service and consult them on the impact of the change.
25. If the Regulations prevented the Council from running the service, it may have made little difference to the Council’s decision. However, the exemption ran until 31 December 2021, so would have at least covered the first term. The DfT had said it might grant further exemptions and it did so two months before the start of the school term. It then extended this again in December 2021 so that it covered the entire 2021/22 school year.
26. This means that throughout this school year so far, and for the remainder of the year, it would have been possible for the Council, in conjunction with its providers, to apply for exemptions on the same basis it did before and provide the fare paying scheme to those who already used and relied on it, at no extra cost to the Council. If the Council had consulted with Mr B, for example, it would have known his child had only two years of school to go and would greatly benefit from continuation of the scheme, even if only for the first term originally, and then longer when further exemptions were granted. The Council did not consider this, as it did not attempt to obtain the views of any relevant people who already used the scheme.
27. It would still have been the Council’s decision whether to provide the scheme to existing customers. However, for the reasons outlined in the above paragraphs, I do not believe the Council properly considered all the relevant factors when making its decision. I also do not consider it has provided good reasons for diverting from the statutory guidance. I note the Council has provided reasons retrospectively, but there is no evidence it considered whether it should consult or not at the time. I find the Council at fault for not consulting interested parties and for not giving any consideration to what the statutory guidance sets out as good practice.

Consideration of Remedy

28. The Council should reconsider whether to apply for an exemption for the remainder of the year. It should also consider any future exemptions that are granted in respect of those already accessing the service. I will not recommend the Council consult parents first as it is already more than halfway through the year, and this would delay things further. The Council now has the views of parents through their complaints, and it should consider these when making its decision. It should also consider Paragraph 53 of the statutory guidance, which sets out what the DfT considers is good practice.
29. I cannot recommend any specific remedy for financial loss in terms of loss of earnings as I cannot say for certain what decision the Council would have made but for the fault. However, the fault has caused distress and uncertainty to Mr B. I recommend the Council pay Mr B £150 in recognition of this.
30. The Council should review its procedures so that in future, whenever it makes changes to its home to school transport arrangements, it considers Paragraph 52 of the statutory guidance and decides whether it is necessary to consult interested parties in line with the Guidance.

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Agreed actions

31. The Council has agreed to, within a month of this decision:
• Apologise to Mr B for the fault in the way it made its decision
• Pay Mr B £150 to recognise the distress and uncertainty caused
• Reconsider whether to apply for an exemption to the Regulations and temporarily reinstate the fare paying scheme for those who accessed it in previous years, as outlined at Paragraph 28
32. The Council has also agreed to, within three months of this decision:
• Review its procedures on consultation when making changes to its home to school transport arrangements, as outlined at Paragraph 30

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Final decision

33. The Council is at fault in not consulting before removing its fare paying scheme, not considering the good practice set out in the statutory guidance and not reviewing its position in light of further exemptions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman