Summary: there is no fault in the Council’s consideration of Ms B’s request for transport for her three younger children

The complaint

1. The complainant, whom I shall refer to as Ms B, says Somerset County Council failed to properly consider the exceptional circumstances that she put forward before refusing her application and appeal for home to school transport for her three younger children.

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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 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)
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)

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How I considered this complaint

4. I discussed the complaint with Ms B and made written enquiries of the Council. I considered all the information on the complaint including the written Ms B provided when she complained to us before reaching a draft decision.
5. Ms B 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

What should have happened

6. Under the Education Act 1996 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.
7. ‘Eligible children’ include children of compulsory school age who live outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16).
8. 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’. Qualifying schools include community, foundation or voluntary schools.
9. The Education Act 1996 provides councils with discretionary powers to provide transport for children who are not entitled to free transport. The council can charge for such discretionary arrangements or provide these for free. It is for each council to whether and how to apply this discretion.
10. The Council says it will consider non-statutory (discretionary) provision in certain named circumstances including:
• Religion or belief;
• Low income including free school meals, universal credit or working tax credit in certain circumstances;
• Pupils with temporary medical needs;
• Severe or sustained bullying;
• If a family moves at a critical point in a child’s education;
• Where a parent has a serious illness that affects their ability to take their child to school;
• Where a school closes;
• Children who are in local authority care.

A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section I names the school the child will attend.

11. The Council has a two stage process for asking for a review of a school transport decision. This states there are four grounds to request a review:
• Applicant believes the school applied for is the nearest or designated school and the distance exceeds the statutory walking distance;
• Applicant believes the walking route is unsafe;
• Applicant not satisfied with transport offered;
• Applicant has been assessed under the exceptional grounds policy and applicant believes this was not properly applied.

What happened

Relevant background

12. Ms B has four children of school age. She and her family moved to their current address from a different area as a result of domestic abuse in 2020.
13. Ms B’s eldest child has special educational needs and an Education, Health and Care Plan. That Plan names X School as her school placement. X School is a mainstream secondary school located around 12 miles from the family’s home.
14. Ms B decided to send her three younger children to schools close to X school as she was unable to transport the three younger children to school nearer to home and get them there on time and take her eldest daughter to X school for the same start time. As I understand it Ms B’s partner was originally able to help with transport but became unable to continue to help with this due to work commitments. Ms B also works. As a consequence in late 2021 Ms B asked the Council for free home to school transport for all four children.

Events related to the complaint

15. In her application for transport Ms B explained that her eldest daughter attended the school named on her EHC Plan some distance away and that she was unable to transport her other three children to more local schools. She said the younger three children therefore attended a school close to the school her eldest child attended. The Council confirms it agreed to provide transport for her eldest child promptly after the application was received because she was attending the only school named on her EHC Plan. The Council told her it was still considering her application regarding the three younger children. In early 2022 the Council told Ms B that it would not provide transport for the three younger children. The Council says the reason for this was the school the children attend is not “…the designated transport area school or the nearest school to Ms B’s address”. It therefore argues the children do not meet the criteria to receive transport as they are not attending their “qualifying school”.
16. In January 2022 Ms B submitted a review request as a first stage appeal for transport. She appears to have given the reason for this as the walking route being unsafe. In the free-text section of the appeal form, however, she said that her eldest child had special needs and was awarded a place at a school around 12 miles from the family home. She again said she then decided to apply for school places for her three younger children at a school close to that special needs school. She says she did this in order to be sure that she could get all the children to school safely as the youngest was only 7 years old at the time so was unable to walk to school unaccompanied by an adult. She also said that her employment means she works 12 hours shifts and that due to a change in her personal circumstances she could no longer transport the children to and from school so needed transport for her three younger children. She said there was no longer anyone she could ask to transport her children to and from school. She said the children were settled at school and said the reason she had moved to the area was to escape domestic abuse so she didn’t want to further disrupt her children by moving them to a nearer school.
17. The Council responded almost immediately stating that as Ms B had requested a review on the grounds of unsafe walking route, the Council could not proceed with her request as the Council did not undertake route safety assessments of routes to schools other than the nearest and designated school for the home address. The Council told Ms B that whilst she did not meet the criteria for a review of the transport decision she could submit a complaint instead if she wished.
18. Ms B responded shortly after to complain.
19. The Council responded to her complaint in early February 2022. In its response the Council stated the nearest designated school for the three younger children was around a mile from the family’s home address. The Council also said that none of its listed exceptional circumstances applied to the family’s situation so transport would not be agreed on the grounds of exceptional circumstances.
20. It appears that Ms B responded to the Council again in early February stating she considered her request met the criteria for consideration under its exceptional circumstances policy. She said the family had relocated due to domestic abuse, that this had caused distress to her children that she did not wish to compound by moving them to a different school. She also said the only school that was suitable for her eldest child was the one that she was attending so she had no real choice but to accept that place. She also said that her eldest daughter was refusing to use the transport being provided to her because her siblings were not able to travel with her and she was unable to understand the reasons for this.
21. The Council completed a review at stage 2 of its complaints procedure. It stated:
• the reviewer was satisfied the previous response explained why transport could not be provided to Ms B’s younger children; and
• The Council’s exceptional circumstances policy included the categories ”severe and sustained bullying”, “critical stage” and “home based issues” and her circumstances did not meet any of these.
22. Ms B then complained to the Ombudsman.

Was the Council at fault and did this cause injustice?

23. The three younger children do not meet the criteria to be considered eligible for transport. There was no fault in the Council’s original decision on this. There is nothing on the original application form that suggests Ms B was applying under the exceptional circumstances criteria but none of those applied to her application in any case.
24. Ms B appealed against the decision to refuse transport for the three younger children. She ticked the box stating she was appealing on the grounds of the safety of the walking route. It was clearly not the case that she was appealing on these grounds and I assume she ticked this box as she had to tick one and was unsure which was the most relevant to her situation. The Council rejected the appeal on the grounds that the case she made did not fit one of the four criteria eligible for an appeal. I would agree with the Council that it did not fit one of the criteria. I have carefully considered whether the appeal arrangements comply with the requirements for these detailed in the statutory guidance and consider they do. There are therefore no grounds for me to conclude there was fault in its decision not to consider the matter under the review process.
25. The Council did consider the matter under its complaints procedure instead. Essentially it said the application had been properly considered under the criteria for statutory eligibility when it first considered the application. I agree this was the case. It did not consider the matter under its exceptional circumstances policy but her initial application form mostly provided information about her eldest child. In relation to the younger three the only information she provided was that her partner had to return to work and she was unable to get her three younger children to school locally when the eldest was some distance away so she had to send them to school near her. There was not enough information in that for the Council to have considered under the specified exceptional circumstances criteria. I have carefully considered whether the criteria the Council has set regarding exceptional circumstances is acceptable under the requirements relating to the provision of discretionary transport. Having done so I consider they are acceptable as the Council has wide discretion on what it will consider and provide in circumstances outside of the requirements to make statutory provision. There was no fault in the Council’s consideration under the complaints procedure.

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Final decision

26. There is no fault by the Council on the matters complained about in relation to the Council’s consideration of Ms B’s request for transport for her three younger children.

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Investigator's decision on behalf of the Ombudsman