Summary: There was fault in the way the Council considered an application for home to school transport on unsafe route grounds. It failed to carry out an assessment of the whole route and misdirected itself as to the legal test it needed to apply. I also find that the appeal hearing was not carried out in a way which is compatible with the Ombudsman’s Principles of Good Administration and the rules of natural justice. These faults cast doubt on the decision reached. The complainant has not received a fair hearing, which is an injustice and has been put to unnecessary time and trouble pursuing the complaint. The Council will apologise, review the decision, make a remedy payment and service improvements.

The complaint

1. Ms X complains about the way the Council has decided her application for free home to school transport for her two children. Ms X complains the Council has decided the route from her home to her children’s school is safe to walk without assessing the whole route, which is below the expected standard in statutory guidelines.
2. Ms X says as a result her children are either expected to accept unreasonable risk walking to school or will miss out on their education.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have considered:
• Information provided by Ms X
• Information provided by the Council;
• The Education Act 1996;
• Home to school travel and transport guidance, Statutory guidance for local authorities published by the Department for Education (’The Guidance’);
• Our focus report All on Board? Navigating School Transport Issues, 2017
• The Ombudsman’s Principles of Good Administration
• The Council's transport policy.
6. 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 this decision with Ofsted.
7. Ms X 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

Relevant law and guidance

8. Local authorities must make ‘suitable’ home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’ (Education Act 1996 s.508B). The travel arrangements 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 may have. ‘Eligible children’ include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• 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 walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

9. In deciding whether a child of statutory school age cannot reasonably be expected to walk for the purposes of ‘’unsafe route’ eligibility, a council will need to consider whether the child could reasonably be expected to walk if accompanied and, if so, whether the child’s parent can reasonably be expected to accompany the child. When considering whether a child’s parent can reasonably be expected to accompany the child, a range of factors may need to be considered, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied. The general expectation is a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so. (Department of Education 2014 home to school travel and transport guidance)
10. In assessing the safety of routes councils should consider a range of risks, such as canals, ditches, speed of traffic and fields of vision for the pedestrian and motorist. Using local knowledge, coupled with modern IT tools is essential when assessing walking routes. (Department of Education 2014 home to school travel and transport guidance). 
11. Councils should have an appeal 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)
12. Statutory 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 (including the standard followed eg Road Safety GB), 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 (including the standard applied eg Road Safety GB), what factors were considered, the rationale for the decision reached, and information about appealing to us. (Annex 2 of the guidance)

13. The Guidance says the independent panel members should be independent of the original decision making process but are not required to be independent of the Council. They should be suitably experienced to ensure a balance is achieved between meeting the needs of parents and the local authority and that road safety requirements are complied with and no child is placed at unnecessary risk.
14. The organisation ‘Road Safety GB’ produces ‘Assessment of Walked Routes to School guidelines’. These are mentioned in the Statutory Guidance as it is the sole published standard known to the Department for Education. Councils do not have to use Road Safety GB guidelines but must assess the route as suitable and safe to walk.
15. The Road Safety GB Guidelines say:
• Case law has found assessments must look at the relationship between pedestrians and traffic only. Personal safety issues of children travelling alone are not considered, a route would not fail to be available because of dangers which would arise if the child was unaccompanied.
• Where possible the assessment should be carried out on foot.
• It is presumed that road users will behave reasonably and responsibly.
• A footway or roadside strip is one of adequate usable walking width for the circumstances and should be clear of overgrowth.
• Sight lines must be enough for pedestrians to see oncoming vehicles and have sufficient time to safely take avoiding action and for drivers to see pedestrians walking in the carriageway and have sufficient time to take avoiding action at whatever speed they are travelling. Advice is given about calculating speeds, volume of traffic and stopping distances.
• A ‘step-off’ is where pedestrians can step clear of the roadway onto reasonably even and firm surface such as a roadside verge. On a road with light traffic flow a verge that can be stepped on by a child and accompanying parent can normally be assumed to provide an available route.
• For roads with no footway or verge the width of the carriageway, traffic speed, type of traffic as well as visibility/sight lines that may be affected by sharp bends, high hedgerows or other obstructions must be considered.
• In rural areas the exercise of continuous professional judgment is likely to be required, no criteria can provide all the guidance or answers to every situation.

Council’s policy on unsafe walking routes

16. The Council does not use Road Safety GB guidelines but has its own policy ‘Support on extremely hazardous routes grounds’. It says where parents believe a route is extremely hazardous the Council has a duty to assess the hazards and reach a decision on whether provision of free transport is necessary.

Key facts

17. The following is a summary of key events. It does not include everything that happened.
18. Ms X applied for free home to school transport for her two primary age children. The Council refused on the basis Ms X lived within statutory walking distance and the route was not extremely hazardous.
19. Ms X complained as the route crossed an ‘A’ road / bypass with traffic travelling at 60mph. Ms X argued that all unsafe routes should be eligible, not just ones deemed ‘extremely’ hazardous. Ms X says she received an assessment of the route from the Council, but this did not include the road accident record, gap count analysis, sight line information, traffic type and speed, or a road crossing assessment. Ms X says sight lines allowed 3-4 seconds to see approaching traffic but the time to cross the road of 10.4 metres was 11 seconds.
20. Ms X also said there was no useable verge between the ‘A’ road and her home and this part of the route had also not been properly assessed.
21. Ms X considered the Council’s assessment had not been thorough as the Council had only assessed the part of the route that was walked along, but not the crossing and did not refer to sections with no useable verge.
22. Ms X obtained evidence from the police of seventeen collisions on this section of road.
23. Ms X complained the Council has not used the Road Safety GB standards for assessing walking routes.
24. The Council’s stage one decision letter referred to its policy for exceptionally hazardous routes (EHR) and said the threshold for EHR had not been met. It said after it had received Ms X’s appeal it did carry out a vehicle count but it only did so for part of the route, it did not do so for the bypass as its policy did not cover roads over 6.5 metres wide. It said ‘we are not saying the roads are not hazardous but within the confines of the policy they do not meet the threshold’. No explanation as to why wide roads were excluded from the policy was provided.
25. Ms X appealed to stage two. This was to be an oral hearing. Unfortunately, Ms X did not receive the invitation for the hearing as it went into her ‘junk mail’ and so did not attend. The Panel instead heard from a representative of the transport team. The Panel did arrange a later meeting between Ms X and panel members so both parties could be heard. The Council and Panel told Ms X’s her representations would be taken into account before a final decision was made.
26. The decision at stage two refers to considering the Council’s route assessment. It said the Council was not looking to change the policy at this time. The letter said the Council had considered photographs of the overgrown verges on the lane leading to Ms X’s home, but this section of road was not found to be extremely hazardous and referred Ms X to the Highways team about the state of the verges.
27. Ms X was offered places on a bus under the spare places scheme for a termly fee per child as she was not eligible for statutory transport.
28. Notes of the two stage two panel hearings have been provided to me. A transport officer attended the first hearing as the Council’s representative (‘the Rep’). Ms X attended the second hearing. There were three panel members who were all Managers of Council departments.
29. At the first hearing attended by The Rep, but not Ms X, notes refer to the following pertinent matters:
• The Rep opened the hearing and explained the grounds for refusing transport.
• The Rep showed a google image of the road crossing. A panel member stated they believed visibility on the ‘A’ road was good. The Rep did not give evidence on this point.
• The Rep said the lane between the ‘A’ road and the home was quiet and traffic counts had been completed here.
• The ‘A’ road was over the width of what fell under the Council’s EHR policy so no information about this road eg traffic counts, gaps, speed was provided. The family would only be crossing the ‘A’ road not walking along it.
• A panel member said they thought it unlikely the family would walk but would travel by car and it was rare for the Council to approve door to door transport.
• The Rep said Ms X had raised things which were not set out within EHR criteria, like measurements between cars and number of accidents.
• A panel member said they were reluctant to go through everything Ms X had raised in her written representations in the hearing.
• A panel member said Ms X had chosen to live at the property and surely these things should be considered by parents.
• A panel member asked why Ms X could not walk to a pickup point to use the spare places scheme on the bus and said it is not our responsibility.
• The Rep referred to Ms X’s childcare issues and said the parent was seeking to pass these on to the Council. A panel member said this is not for the LA to sort out – parents are responsible for driving their children to school.
• A panel member asked if there had been a legal challenge. Another panel member said they were comfortable saying no door-to-door transport could be provided.
• A panel member said the Council’s policy had never been met for crossing a road.
• A panel member said nothing will deviate from the fact it is the parent’s responsibility to ensure pupils travel to school safely. Another panel member agreed and said he would listen and answer questions Ms X may have but that he didn’t want a debate.
• A panel member said they were not there to look at policy but whether the application met the policy.
30. The Rep then left the hearing.
31. The panel waited ten more minutes for Ms X to join, when she did not, the panel invited the Rep to re-join. The Rep confirmed emails inviting Ms X had been sent. The panel discussed whether they should decide without hearing from Ms X. The panel decided to give Ms X another opportunity before deciding, but rather than adjourn until after Ms X had given oral representations, the Panel went on to deliberate with the Rep present and participating in the discussion.
32. A panel member said they were there to see if the application met the policy. The ‘A’ road measured more than 6 metres which was not included in the Council’s policy, so the gap between cars did not fall under the policy. The policy also did not include risks relating to crossing a road. The Rep asked if there should be a policy on crossing roads, but a panel member said it was not part of Council policy.
33. A panel member thought it was appropriate to offer to divert the bus and offer a spare seat for a fee and if you choose to live in a rural area you have to accept it is your responsibility to ensure your child’s safety.
34. A panel member said speed of vehicles was a police matter.
35. The Rep said the Council did not look at gaps between cars as it did not fit our analysis.
36. On vehicle counts the Rep said the ‘A’ road was similar to ones they had done counts on previously, there is a high volume of traffic on all A roads we look at the width of the road and whether there are verges.
37. The Rep said it seemed to come down to childcare issues. The family have no childcare one day a week.
38. The panel agreed the issue was about crossing the road and this was not in their policy and if they wished to change the policy this would have to be done separately.
39. At the second part of the hearing attended by Ms X five days later, she gave evidence about her concerns about the safety of the route. Ms X asked for the whole route to be fully assessed.
40. A panel member asked Ms X how long she had lived at her property and whether this was when the ‘A’ road had already been built, Ms X confirmed it was built before she moved in.
41. Questions were asked about signage, number of accidents, childcare and getting the verges cut.
42. The panel said it would focus on the Council’s policy, not the Road Safety GB standard, although it would consider things she had mentioned about the guidelines.
43. A panel member said Ms X had answered the question they had about whether the road was there when she moved in.
44. Ms X emphasised she felt the crossing needed to be looked at as part of her application.
45. The notes for the second part of the hearing do not indicate any further deliberation took place by the Panel after the hearing with Ms X present. The decision letter was sent two weeks later.

Analysis

46. The legal test the Council had to apply was whether the route was safe or unsafe, not whether it was extremely hazardous. The Council was wrong to say it does not have to consider hazardous routes only extremely hazardous ones. I find the Council essentially misdirected itself from the start.
47. The Council did not have to apply Road Safety GB Guidelines, but the Ombudsman would expect a council to have a policy which was similarly rigorous and carry out an assessment which covers the entire route. We expect councils to consider each case on its merits; no guidelines can address every potential situation.
48. The Statutory Guidance requires Council to consider a range of risks, such as canals, ditches, speed of traffic and fields of vision for the pedestrian and motorist. (Department of Education 2014 home to school travel and transport guidance). The Council failed to do so as its policy did not include large roads or risks related to crossing roads. It therefore did not consider aspects such as traffic volume, speed or gaps in traffic to enable crossing safely. This was fault and casts doubt on the decision reached.
49. The panel had to consider the law and statutory guidance not just the Council’s own policy. There is no legal exemption to considering the safety of ‘A’ roads, or roads over a certain width, or the need to cross them. It should have been obvious to the Panel the policy was flawed; indeed, the Council’s Rep raised this possibility during the hearing.
50. The Council’s position about the stretch of road with the verge is unclear. Was Ms X and her children expected to use the verge? If so, was it useable? Failing to consider this part of the route and provide a clear rationale was fault.
51. The Council was wrong to put the expectation on Ms X to contact Highways to cut the overgrown verge. If the Council wanted to rely on the verge being available (so the route could be deemed safe) then it was for the Council to organise this. It is clear in the Statutory Guidance that councils can take action to make an unsafe route safe, for example cutting overgrowth or hedges or putting in crossing facilities.
52. I have significant concerns about the way the stage two panel appeal hearings were conducted. These were oral ‘hearings’ not ‘meetings’ between council officers. The usual process for a hearing would be to listen objectively to the evidence from both sides and then to deliberate in private, without the parties present, to reach a decision. This is not what happened.
53. The Ombudsman’s Principles of Good Administration set out our expectations of councils. Councils should act fairly, be impartial and deal with issues objectively. Our Principles draw on the rules of natural justice, which includes procedural fairness. Proceedings should be conducted so they are fair to all the parties, with both sides heard. A person who makes a decision should be unbiased and act in good faith. The transport appeal process requires panel members to be independent, and capable of being objective to ensure a balance is achieved between meeting the needs of parents and the local authority and that road safety requirements are complied with and no child is placed at unnecessary risk. A decision-maker should only take into account relevant considerations and ignore irrelevant considerations.
54. I find the stage two panel appeal hearing failed to meet the Ombudsman’s Principles of Good Administration or the rules of natural justice. This was fault.
55. Some panel members gave evidence in support of the Council’s position, which was not their role, this was the role of the Rep. A panel member cannot be independent, as Statutory Guidance requires, if they are also acting as one of the parties who has an interest in the case.
56. The Clerk’s notes read as a discussion or ‘meeting’ between the Rep and the panel and not a hearing between an impartial panel and one party.
57. The decision appears to have been made before the panel met Ms X, as there was no further deliberation included in the notes after the first part of the hearing. The panel deliberated with the Rep present, who participated in the decision-making process, an opportunity not granted to Ms X. This was unfair. I find the outcome of the second part of the hearing, when Ms X gave her representations, was pre-determined.
58. The Panel took into account irrelevant considerations. Whether Ms X would drive, when she had moved to the property, whether the road was already there when she moved, or whether she had childcare issues were not matters relevant to the safety of the route or part of the legal test.
59. There was an inappropriate emphasis on parents being responsible for taking their children to school and the panel being encouraged not to deviate from this principle. The legislation sets out in s.508B several exceptions to this principle. Ms X was not responsible for walking her children to school if the route was unsafe or if it was not reasonably practicable for her to accompany her children.
60. I find Panel members made inappropriate personal judgments about Ms X trying to shift childcare responsibilities and knowingly moving to a rural property near an ‘A’ road. These were not matters that formed part of the legal test of whether a route was unsafe and were inappropriate.
61. There was a failure to take into account relevant considerations such as speed of traffic, gaps and sight lines when crossing the road. There was a refusal to consider or ‘debate’ all Ms X’s concerns, although some were highly relevant given the flaws in the Council’s policy.
62. These significant flaws in the stage two appeal mean I am not satisfied Ms X has received an independent appeal.

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Agreed action

Within four weeks of my final decision:

63. The Council will apologise to Ms X for the faults identified in this investigation.
64. The Council will pay Ms X £250 for her time and trouble in bringing the complaint and for the distress caused by the way her appeal was handled.
65. The Council will carry out a full walked assessment of the whole route from Ms X’s home to school, at the time of day her children would be travelling, taking into account all hazards. This includes the crossing of the ‘A’ road and whether the lane to the home is safe to use, given the current state of the verges.
66. The Council will share a report of this assessment, including any photographic evidence, with Ms X and the Ombudsman.

Within six weeks of my final decision:

67. The Council will take a fresh decision on Ms X’s application based on the outcome of the route assessment and provide a written decision, with reasons to Ms X, shared with the Ombudsman.
68. If the Council reverses its previous decision about route safety, it should consider making a financial payment to Ms X for the period the family has missed out on transport. If the Council and Ms X cannot agree on the level of payment, Ms X can bring this matter back to the Ombudsman for us to determine.
69. If the Council decides the route is safe, it should go on to consider if it safe to walk only if children are accompanied, and if so, if it is reasonably practicable for Ms X to accompany her children. Again, its rationale should be clearly set out in a written decision.
70. If the decision is not in Ms X’s favour either on safety of route or on accompaniment, then the Council should provide the same appeal rights at stage one and stage two as for any other transport application. Appeals should be considered by a senior officer and panel members who have had no previous involvement in Ms X’s case.
71. The Council should alert all officers and panel members involved in transport decisions about the problems with the current EHR policy and the need to undertake assessments of the whole route including large roads and crossings.
72. In response to my draft decision the Council informed me following another recent Ombudsman complaint, it has already drafted a revision to its school transport policy for assessing whether walking routes are unsafe.  The Council accepted in that complaint its current Extremely Hazardous Routes policy needed to be updated in line with the Department for Education’s Statutory Guidance for Home to School Transport 2014.  A revised policy is in a draft format at present, following recent public consultation and Cabinet Members will be recommended to approve the updated policy on 8th March and assuming they do it will be re-named the ‘Unsafe Walking Routes’ policy. This will include some additional checks being undertaken when assessing whether routes are unsafe for children to walk to school in accordance with Road Safety GB Guidelines.
73. In response to my draft decision the Council has acknowledged that a number of factors during the Appeal hearing were unsatisfactory and has agreed to revisit these to ensure that going forwards, each application which reaches Stage 2 of the Appeals process is carefully considered on its own merits and relevant guidelines are applied and understood by the Panel before reaching a decision.  
74. The Council will provide us with evidence it has complied with all the above actions.

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Final decision

75. I have completed my investigation. There was fault in the way the Council considered an application for home to school transport on unsafe route grounds. It failed to carry out an assessment of the whole route and misdirected itself as to the legal test it needed to apply. I also find that the appeal hearing was not carried out in a way which is compatible with the Ombudsman’s Principles of Good Administration and the rules of natural justice. These faults cast doubt on the

76. decision reached. I am satisfied completion of the actions set out above are a satisfactory resolution to the complaint. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman