Summary: Mrs D complains about an unsuccessful appeal to the Council in relation to her son’s (Young Person X) application for free school transport. She says the appeal panel errored in its assessment of whether Young Person X was eligible for free school transport. Further, Mrs D alleges there was a serious delay in her appeal being heard. She also says the hearing was procedurally biased and fell short of the standards expected of an independent process. We found a delay by the Council in convening an independent appeal panel. However, this did not prejudice the appeal panel’s decision. The Council’s appeal panel considered Mrs D’s representations and made the necessary material considerations with procedural accuracy. We therefore have no authority to question the merits of the decision made. Nevertheless, the identified delay caused Mrs D an injustice and the Council has agreed to our recommendations to remedy this.

The complaint

1. The complainant, who I refer to as Mrs D, is making a complaint in relation to her son (Young Person X). Her complaint concerns an unsuccessful school transport appeal to the Council which would have entitled Young Person X to free home to school transport. Specifically, Mrs D alleges the following:
1. The Council’s appeal panel failed to consider and take proper account of national guidance in relation to home to school transport, particularly with respect to reasonable walking time and safety.
2. The Council’s appeal panel did not consider any of the points raised during the hearing beyond the ‘statutory walking distance’. She feels this undermined the entire process, particularly with respect to her safety concerns.
3. The Council failed to adhere to its own policy timeframes for reaching a decision in this case as it took 28 months to provide a decision.
4. The appeal process lacked transparency and integrity as she was not afforded a face-to-face hearing despite requesting one.
5. The appeal panel members were not independent as they were employees of the Council’s Children’s Services team who had prior knowledge of the case.
6. The minutes taker of the appeal hearing was a Council employed Solicitor. She feels this was unfair as she was not afforded the same level of representation.
2. In summary, Mrs D feels aggrieved and frustrated that the Council has not shown regard to natural justice in relation to the appeal process. Further, she says she has spent many months suffering unnecessary stress and anxiety due to the time taken to reach a decision. Mrs D also alleges she will now incur financial loss due to the flawed appeal decision and the need to fund transport for her son. Absent this, she feels the walking route is too unsafe for Young Person X to undertake.
3. As a desired outcome, Mrs D wants the Council to provide a new appeal hearing, properly consider her representations and national guidance and reverse its decision to not provide Young Person X free home to school transport.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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).
6. We cannot question whether a appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended).

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How I considered this complaint

7. I have read Mrs D’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and statutory guidance. I invited both Mrs D and the Council to comment on a draft of my decision. All comments received were fully considered before a final decision was made.

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My findings

Background and legislative framework

Duty to provide school transport

8. In accordance with Section 508B and Schedule 35B of 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. 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 has’.
9. ‘Eligible children’ are defined in Schedule 35B of the Education Act 1996 as:
1. Children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16).
2. 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.
3. 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.
4. Children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if:

• the nearest suitable school is beyond two miles (for children over eight and under 11) or;
• the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or
• the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.

Statutory guidance

10. The ‘Home to School Travel and Transport Statutory Guidance’ was issued in July 2014 (the 2014 Guidance). This is statutory guidance from the Department for Education. This means local authorities are under a duty to have regard to it when carrying out their duties in relation to home to school travel and transport, and sustainable travel. In accordance with the 2014 Guidance, the Council uses a Geographical Information Mapping System (GIS), which uses Ordnance Survey information, to determine home to school transport distance measurements.

School transport appeals

11. Councils should have complaints and appeals procedures for dealing with school transport issues. The 2014 Guidance sets out a recommended two-stage procedure. It says this is to ensure a consistent approach across all local authorities and to provide a completely impartial second stage. The two-stage process recommended is:
1. Stage 1: review by a senior officer
2. Stage 2: review by an independent appeal panel.
12. The 2014 Guidance says the panel should consider “written and verbal representations from both the parent and officers involved in the case”. It also prescribes a set of timeframes to adhere to in carrying out the review process.

Chronology of events

13. Throughout Years 8 and 9, Young Person X was eligible for free school transport while he attended the Lower Site of his school. He is now attending the Upper Site of the same school for Years 10, 11 and 12.
14. In September 2019, Mrs D contacted the Council to request free school transport for Young Person X. The Council issued Young Person X a free bus pass pending its assessment of whether Young Person X was eligible.
15. In December 2019, the Council wrote to Mrs D to inform Young Person X did not qualify for free school transport as the distance from his home to school did not exceed the ‘statutory walking distance’. The Council invited Mrs D to request a Stage 1 review. In response, the Council extended Young Person X’s temporary bus pass as a gesture of goodwill to allow for the review process and the conclusion of a route safety assessment it was undertaking.
16. In January 2020, the Council concluded its formal safety assessment of the route Young Person X would need to take to walk to school. It found the route to be safe and so it gave 6 weeks’ notice of the withdrawal of the temporary bus pass.
17. In early February 2020, Mrs D made a request for a Stage 1 review of the decision that Young Person X was not entitled to free school transport.
18. In mid-February 2020, the Council sent Mrs D its Stage 1 review response which was undertaken by a senior officer. The Council did not agree it held a duty to provide free school transport for Young Person X and so declined to do so. In doing so, the Council considered the 2014 Guidance, as well as Mrs D’s comments relating to the ‘statutory walking distance’ and safety concerns.
19. Mrs D then requested a Stage 2 review of the decision. There is a conflict of accounts as to when this request was made. It is accepted by both parties the request was made by telephone. Mrs D says she made the request shortly after receiving the Stage 1 outcome letter. The Council says Mrs D made the request in late 2021, though accepts it is possible the request was made earlier.
20. In December 2021, the Council’s appeals panel heard Mrs D’s appeal. The Council sent Mrs D the outcome of her Stage 2 panel appeal within 5 working days of the appeal hearing. This notified Mrs D of the independent appeals panel’s decision to not provide Young Person X with free school transport. Mrs D therefore referred her complaint to the LGSCO for an independent assessment.

My assessment

My role and jurisdiction

21. By law, I cannot question the merits of the Council’s decision to not provide free school transport absent a finding of fault (see Paragraph 6). My role is therefore to assess the procedural accuracy of the Council’s decision-making process and whether this complied with applicable legislation and statutory guidance. If it did, then regardless of my view, I cannot uphold the complaint. I have read Mrs D’s appeal to the Council. In summary, she raises two points which she says makes Young Person X eligible for free home to school transport. These are:
1. The distance from Young Person X’s home to school exceeds the ‘statutory walking distance’ of 3 miles.
2. The walking route is not safe for Young Person X to undertake unaccompanied.
22. I will now assess these two substantive grounds in turn.

a) Statutory walking distance

23. The ‘statutory walking distance’ determines who is responsible for the provision of home to school transport. Where the home to school distance measures over the relevant ‘statutory walking distance’, the responsibility for the provision of transport rests with the Council. Where the distance measures less than the ‘statutory walking distance’, the responsibility for the provision of transport rests with the parent, with the mode of transport and any necessary accompaniment also being a matter for the parent. Because Young Person X is aged over 11, the law defines the ‘statutory walking distance’ as 3 miles.
24. The Council has calculated the walking distance as being 2.933 miles. It has done so using the Geographical Information Mapping System (GIS), which uses Ordnance Survey information, to determine home to school transport distance measurements. The Council applies GIS across all applications for free school transport to ensure consistency and fairness. However, Mrs D has taken her own measurements to determine the walking distance using a GPS, AA route planner and RAC website. She says in all cases, the calculated walking distance exceeds 3 miles. I have read the minutes of appeals panel. This shows Mrs D’s concerns relating to the ‘statutory walking distance’ were considered.
25. I fully acknowledge Mrs D’s point relating to other methods of calculation. However, GIS is a recognised, accurate and acceptable method of determining the ‘statutory walking distance’. The Council assess all applications for free school transport using GIS for consistency. The Council is entitled to make this judgement and I do not consider it would be good administrative practice for the Council to apply different methods of calculation to individual cases. This would be procedurally unfair to other applicants. It should also be noted that each method (e.g. GPS, AA or RAC route planners) Mrs D used to calculate the distance gave three different results. It cannot therefore be said the methods used by Mrs D are more accurate and reliable than that adopted by the Council.
26. The Council is entitled to determine how it measures the ‘statutory walking distance’. It has chosen a recognised and reliable method which it applies to all cases. There was no fault by the Council’s appeal panel in applying the GIS method to determine Young Person X’s walking distance. I have no authority to question the merits of the Council’s decision, nor method of calculation. I have however considered Mrs D’s point that the ‘start’ and ‘end’ points taken by the Council to determine the ‘statutory walking distance’ are incorrect. She says:
1. Her home is 120 meters above sea level which should be included in the overall measured distance and;
2. The ‘end point’ is a point of access to the school playing fields, as opposed to the entrance to the school buildings.
27. Firstly, and as the appeals panel took into account, the GIS method does not consider vertical distance and is measured horizontally on the flat. I have commented already that the GIS is an acceptance and recognised method of calculation the Council is entitled to adopt and apply universally to all applications. The Council cannot subsequently take into account vertical distance and have varied calculations for individual cases because this would be procedurally unfair to other applicants. Second, the appeals panel noted that the end point in determining the ‘statutory walking distance’ is the closest authorised access point to the school which is open all year round. I have not found any evidence of fault by the appeals panel addressing Mrs D’s concerns before making a decision.
28. The appeals panel has properly determined the ‘statutory walking distance’ in Young Person X’s case as being 2.933 miles. I have no legal jurisdiction to question the distance calculated or decision to deny free school transport on the grounds the route does not exceed the ‘statutory walking distance’.

b) Route safety

29. Free home to school transport must be provided to children living within walking distance of the school if the route is reasonably deemed unsafe. In deciding whether a child can reasonably be expected to walk to school, (whether the issue is safety or disability), the question is whether they can do so if accompanied, and whether it is reasonable to expect a parent to accompany them. In assessing safety, local authorities should consider a range of risks, such as canals, rivers, ditches, speed of traffic and fields of vision for the pedestrian or motorist.
30. It is Mrs D’s position that the proposed route the Council expects Young Person X to walk unaccompanied is fundamentally unsafe. In her appeal documents, Mrs D explains the footpaths along the route are poorly maintained and includes areas with poor fields of vision which is exacerbated by poor weather conditions. Moreover, Mrs D says the route poses safeguarding risks as it is rural and isolated in nature and considering the early time Young Person X would need to travel to school, this would be unsafe. She also says Young Person X would not be fit to start his school day considering the physical exertion of spending up to 80 minutes walking to school. Mrs D made these points clear to the appeals panel.
31. I found that the Council’s Inspection Panel completed a safety assessment of the proposed route which was determined as safe by the relevant Cabinet Member in January 2020. In addition, Councillors and officers have walked the proposed route and are satisfied it is a safe. I also found the appeals panel fully considered Mrs D’s concerns with respect to safety, as well the 2020 safety assessment and shared view the route is considered safe. This is well documented in the minutes of the appeal hearing. I fully respect Mrs D’s concerns, but there is no evidence of procedural fault by the appeals panel in considering this matter. I have no jurisdiction to question the merits of a properly made decision and so the provisions I outline at Paragraph 6 apply.

Process delay

32. We expect Council’s to make decisions in accordance with the timescales prescribed by its policies and the 2014 Guidance. Mrs D complains in relation to a significant delay by the Council to reach a decision about her application for free school transport. The Council’s school transport policy states a parent has 20 working days from the date of the original decision to reject an application to request a Stage 1 review by a senior officer. Within 20 workings days, a senior officer should review the original decision and send a detailed written notification of the outcome to the parent. Following this, the parent has a further 20 working days to request a Stage 2 independent panel appeal. On receipt of the request, the Council’s appeal panel should hear the appeal within 40 workings days. The Council should notify the parents of the outcome of the appeal panel within 5 working days of the hearing. I have had due regard to the 2014 Guidance and acknowledge the Council’s school transport policy is consistent with this in relation to recommended timeframes.
33. Firstly, the Council told me that Mrs D never applied for school transport. Rather, it says Mrs D telephoned the Council in September 2019 to make enquiries about a bus pass for Young Person X. I have reviewed the evidence in this case and found the Council responded by letter in December 2019 stating Young Person X was not entitled to free school transport. The contents of that letter treated Mrs D’s telephone call as an application. Further, the Council engaged in the review and appeals process which is only applicable to a rejected application. For those reasons, I do not accept the Council’s position that Mrs D has never applied for free school transport for Young Person X.
34. The Council responded to my formal enquiries stating it received a request for a Stage 1 review in February 2021 (14 months after the original rejection letter). This is erroneous as the review form Mrs D completed states it was logged by the Council in February 2020. Further, the Council’s Stage 1 review outcome letter is dated the same month. The evidence shows:
1. Mrs D requested a stage one review 29 working days after the Council’s initial outcome letter. This is slightly (though, in my view, immaterially) outside of the 20 working days prescribed by the Council’s written policy and 2014 Guidance.
2. The Council responded to the Stage 1 request in 9 working days. The response demonstrates good administrative practice and was consistent with the timescales prescribed by the Council’s written policy and 2014 Guidance.
35. The Council told me Mrs D requested a Stage 2 appeal panel review in December 2021 (20 months after the Stage 1 outcome letter). However, the Council later told me Mrs D’s request was made by telephone in September 2021 (18 months after the Stage 1 outcome letter). I spoke to Mrs D who disputes this date given by the Council. Though she acknowledges the request was made by telephone, she says it was shortly after she received the Stage 1 outcome letter. The difficulty with this issue is that Mrs D did not make her review request in written form which is a requirement of the Council’s written policy. It has therefore been difficult to determine the exact date Mrs D made her request.
36. That being said, the Council told me by telephone it logged the Stage 2 request in September 2021 acting under a good faith presumption it had been made earlier. Further, I do not accept the Council would accept a Stage 2 request 18 months after the Stage 1 outcome letter. This is because the Council’s written policy and 2014 Guidance states a Stage 2 request must be made within 20 working days from the date of the Stage 1 outcome letter. This is a significant and consequential delay which, on balance, I do not believe would have been accepted. On that basis, I believe there has been some delay by the Council in completing a Stage 2 review. The Council’s written policy and 2014 Guidance states this should be done within 40 working days of the written request. I have been unable to determine the exact delay due to an absence of the telephone records on both sides. There was however fault by the Council due to delay.
37. I consider this delay caused Mrs D an injustice. There was no injustice to Young Person X as he was not entitled to free school transport. Further, the Council issued a free temporary bus pass from September 2019 to February 2020 as a goodwill gesture. Notwithstanding the delay, there is no evidence the fault identified prejudiced the Council’s decision and so the injustice suffered is limited to uncertainty and anxiety. I have therefore made recommendations that the Council remedy this, including service improvements.

Appeal hearing format

38. In summary, the 2014 Guidance states the appeal panel should consider “written and verbal representations from both the parent and officers involved in the case”. The Council told me the appeal hearing was held virtually in light of the Covid-19 pandemic and to reduce the risk of transmitting the virus. This was consistent with Government guidance at the time relating to reducing in person contact. Notwithstanding this, Mrs D was still able to make both verbal and written representations to the appeal panel. On this basis, Mrs D was afforded the opportunity to make representations in way which is consistent the 2014 Guidance. I have not determined any fault by the appeals panel in this respect.

Integrity of appeal process

39. Seperatelty, Mrs D alleges the appeal panel members were not independent as they were employed by the Council and had prior knowledge of the case. In response, the Council says the appeal panel members were independent of both the initial transport application assessment and the Stage 1 senior officer review process. The 2014 Guidance permits Council officers sitting on the appeal panel. However, it states that the independent appeal panel members must be “independent of the original decision-making process and suitably experienced.” There was no fault by the Council with respect to how the appeal panel was constituted. Moreover, given panel members are given advance copy of the appeal papers prior to the hearing, it is understandable they had prior knowledge of the case. There is no evidence of a lack of independence or bias in the manner the appeal panel considered Mrs D’s school transport appeal.
40. Further, Mrs D is dissatisfied that the appeal panel minute taker was a Council employed Solicitor. She says she should have been afforded the same representation to advance her position. I found this Council employee attended the appeal hearing as a clerk and minute taker. Further, the appeal hearing was not an adversarial process. In any event, there is no evidence to suggest this particular employee provided legal counsel during the course of the appeal hearing, or that their presence undermined the independence of the process. Following the hearing, the Council is entitled to take any legal advice it deems necessary to inform compliance with its obligations. The appeal panel was convened to hear Mrs D’s representations and from my review of the evidence, she was able to do so unimpeded. I have not found any evidence of fault in relation to this part of the complaint.

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Agreed actions

41. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following actions:
1. Within one month of this final decision: Provide Mrs D a written apology which acknowledges the delay in hearing her Stage 2 appeal. The Council will also pay Mrs D £150 to acknowledge the uncertainty and anxiety she suffered by reason of the delay.
2. Within three months of this final decision: The Council will undertake a formal review of Mrs D’s case. The purpose of the review is to identify why the delay occurred and to adopt measures to prevent similar occurrences in the future. The review will also look at whether it is suitable for the Council to be accepting school transport review requests by telephone when its policy outlines this must be by written means. The review outcome will be shared with Council officers involved in school transport decision making to inform any necessary training and guidance.
42. The Council will provide evidence to the Ombudsman it has satisfied the above actions by the deadlines outlined above.

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Final decision

43. The complaint is upheld in relation to a delay by the Council in reaching a final determination of her request for school transport. The evidence shows there was a delay by the Council in convening an independent appeal panel. However, this did not prejudice the appeal panel’s decision. The appeal panel considered Mrs D’s representations and made the necessary material considerations with procedural accuracy. I recognise Mrs D does not accept the walking route is safe, nor that it falls short of the ‘statutory walking distance’. The Council has however undertaken a safety assessment and used a recognised measuring system which it applies consistently to ensure fairness. This was fully considered by the appeals panel and so I have no authority to question the merits of the decision made.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman