Summary: Mr X complained the Council failed to properly consider his application and appeal for assistance with home to school transport. We find the Council was at fault for failing to adhere to the statutory guidance when considering Mr X’s appeal. However, this did not cause Mr X a significant injustice. The Council has agreed to my recommendation.

The complaint

1. Mr X says the Council has failed to properly consider his home to school transport application and appeal for his child, B.
2. He says this has left the family confused and distressed and resulted in a three-hour journey to take B to school. Mr X says this has placed a financial burden on the family and has put him to the time and trouble of complaining.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. As part of the investigation, I have:

• considered Mr X’s complaint and comments.
• made enquiries of the Council and considered the comments and documents the Council provided.

7. Mr X and the Council had an opportunity to comment on my draft decision. I have considered the comments received before making this final decision.

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What I found

Law and Guidance

8. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
9. Eligible children are children of compulsory school age who:
• cannot walk to school because of their SEN, 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.
10. Councils should assess eligibility for children with SEN on an individual basis to identify their transport needs. Councils should not consider normal requirements such as walking distances.

Appeals

11. The Government issued statutory guidance in 2014, ‘Home-to-school travel and transport statutory guidance’ (‘the guidance’) which recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support.
12. The guidance says council policies should set out a clear and transparent two stage process for parents who wish to challenge a decision about:
• the transport arrangements offered.
• their child’s eligibility.
• the distance measurement in relation to statutory walking distances; and
• the safety of the route.
13. The guidance says the process should involve:
• Stage 1: review by a senior officer.
• Stage 2: review by an independent appeal panel.
14. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case.
15. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.
16. The guidance says previous guidance made clear local authorities should have in place and publish their appeals procedures but left it to the individual authority to determine how this should operate in practice. The 2014 guidance recommends local authorities adopt the two-stage appeal process. The intention is to ensure a consistent approach across all local authorities and to provide a completely impartial second stage, for those cases that are not resolved at the first stage.
17. The Council’s school transport policy provides for a two-stage review process. At the first stage the Council’s School Places and Appeals Officer will decide on the case. At the second stage the request will be considered by senior officers within the education service.
18. The Ombudsman’s position is that councils should follow the recommended appeal procedure unless they have good reason not to.

The Council’s Policy

19. The Council’s Policy says assistance with home to school transport costs will be considered for children who attend the nearest qualifying school and the distance between the home address and the school is over the statutory walking distance.
20. The nearest ‘qualifying’ school means the nearest qualifying school that provides education appropriate to the age, ability and aptitude of the child and any special educational needs the child may have. The qualifying school will normally be the nearest school, whether denominational or not, within the borough.
21. Attendance at a denominational school is a matter of parental preference. There is no statutory entitlement to assistance with transport on denominational grounds other than as set out for children from low-income families.
22. Where an application has been refused the parents may request special consideration be given to their request by the Assistant Service Director in accordance with a Scheme of Delegation agreed by the Council. The Scheme of Delegation involves the assistant director, early help and schools being responsible for considering and authorising/declining an application for home to school transport. There is no further right of appeal if this request is denied.

What Happened

23. Mr X made a late application for his child, B, for a school reception place in April 2021.
24. The Council refused to allocate B a place at Mr X’s preferred school. It said all places had been offered to other children who applied ‘in time’. The Council nominated the nearest local school with available places. However, this happened to be a denominational school.
25. Mr X refused the Council’s offer for a place at the nominated school due to religious reasons and appealed the decision in September 2021. The Council rejected Mr X’s appeal.
26. Mr X applied for assistance with home to school transport (in the form of a bus pass) for B in February 2022. He said that this was because the Council had failed to offer B a place at his preferred school and had not provided a decision to his school admissions appeal. He also said the Council delayed in offering B a school place until May 2022. However, he said that B was now settled into his new school following a move from a different city. Mr X told the Council he wanted B to remain at his current school but needed assistance with home to school transport. He said he feared that a change in school could damage B’s mental health and education.
27. The Council rejected Mr X’s application. It said it had refused Mr X’s application for a bus pass for B as he was not attending the nearest qualifying school with an available place. It quoted its policy to Mr X. The Council offered Mr X the opportunity to apply for a place at an alternative school which was nearer to his home address and within the statutory walking distance. It also asked Mr X to explain why he believed B’s current school was the only suitable school for him.
28. Mr X appealed the Council’s decision in April 2022.
29. The Council responded to Mr X and explained his appeal could not be considered under exceptional circumstance as it did not contain enough information. It refused to allow Mr X’s appeal to progress to the next stage, where it would have been considered by the Assistant Service Director under its Scheme of Delegation agreed by the Council.
30. Mr X complained to the Ombudsman in May 2022.
31. In June 2022, the Council escalated Mr X’s appeal and this was reviewed by the Assistant Service Director.
32. I have seen the information the Council considered when reviewing Mr X’s appeal. This was the same as Mr X’s previous application and did not contain new information.
33. The Council refused Mr X’s appeal in late June and wrote to him in early July 2022.
34. The Council said Mr X had the opportunity to apply for a nearer qualifying school that had available places. Instead, he had elected to send B to a school further away due to religious reasons. It reminded Mr X of its policy. It said it would not normally pay travel expenses when a parent arranges for their child to attend a school other than the nearest qualifying school with available places. The Council provided Mr X with the name of a nearer school that had an available place and suggested Mr X could apply for B to transfer there. It said that this was the end of its appeals process.
35. In response to my enquiries the Council said it was currently reviewing its home to school transport policy.

Analysis

36. It is not for the Ombudsman to comment on the merits of a decision unless there is fault in how that decision has been reached.
37. Mr X applied for assistance in the form of a bus pass for his child, B, in February 2022. The Council considered this, having before it all the information Mr X had supplied. However, in line with its policy, it told Mr X, B was not attending his nearest qualifying school with an available place. It provided Mr X with details of the alternative school and asked him to consider this. It also gave him the opportunity to appeal if he could explain why B’s current school was the only suitable choice. I therefore do not find fault with how the Council considered Mr X’s application at this stage.
38. I have concerns about how the Council dealt with Mr X’s request for an appeal. The Ombudsman would expect the Council to follow statutory guidance unless it has good reason not to. Any departure from the guidance should give appellants at least the same opportunities to present their case.
39. In this case I find the Council’s appeal policy departed from the statutory guidance. The Council’s appeals policy is in my view, a gatekeeping exercise. There is an expectation that Mr X would provide information for the Assistant Service Director to exercise their delegated power to consider the appeal. The Council’s policy does not give clear instructions about what Mr X had to say or do to be allowed to move to the next stage. The guidance also says an independent appeal panel should consider written and verbal representations from both the appellant and officers involved in the case. Appellants should be able to present their case and there are good reasons for this including: transparency, natural justice, and the opportunity for all parties to ask questions. Mr X was not given the opportunity to do this, and it is my view the Council’s appeal policy departed from the statutory guidance without showing good reason and this was fault.
40. However, I must also consider if this caused Mr X an injustice. I have seen a copy of Mr X’s appeal the Council considered in June 2022. I am satisfied the Council had before it all relevant information when making its decision and have seen no evidence Mr X sent any new information to the Council for it to consider. The Council offered Mr X the opportunity to consider a school that met the policy’s requirements that the school be the nearest with an available place. Mr X exercised his choice not to apply for a place at the alternative nearer school.
41. I would usually recommend the Council reconsider Mr X’s appeal using the correct statutory procedure. However, I find the Council has considered all relevant information provided by Mr X and therefore I cannot see a further appeal would result in a different decision. Therefore, I find this did not cause Mr X a significant injustice.
42. I have noted the Council’s home to school transport policy is currently under review. As part of that review, I would expect the Council to include how it can best meet the requirements of the latest version of the statutory guidance.

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Agreed Action

43. By 17 February 2023, the Council should complete its review of its home to school transport policy and write to the Ombudsman explaining how it now complies with the statutory guidance.

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Final decision

44. The Council was at fault for departing from statutory guidance when considering Mr X’s appeal. However, I do not find this caused Mr X a significant injustice.

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Investigator's decision on behalf of the Ombudsman