Summary: There was fault in the way the Council considered applications for home to school transport for two siblings who moved into the area. This casts doubt on the decisions to refuse transport. The Council will reconsider the applications, apologise and make a payment for time and trouble.

The complaint

1. Mr X complains about the way the Council has considered his application and appeal for free home to school transport for his two children, whom I shall refer to as Y and Z.
2. Y and Z attend schools within statutory walking distance, but Mr X says the route is unsafe.

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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 Mr X and the Council including:
• Complaint documents
• Transport applications and appeal documents
• Council’s home to school transport policy
• Council’s response to my enquiries.
6. I have spoken to Mr X and the Council.
7. I have considered relevant law and guidance including:
• Education Act 1996
• Department of Education Home to School Transport Guidance (‘The Guidance’), 2014
• Ombudsman Focus Report ‘All on Board – Navigating school transport issues’, 2017.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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.

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What I found

The law and relevant guidance

10. Section 508B of the Education Act 1996 ('The Act') says councils must provide free school transport to eligible children for the purpose of ‘facilitating the child’s attendance at the relevant educational establishment in relation to him’. The term 'eligible' means children of compulsory school age who meet certain criteria as set out in Schedule 35B of the Act.
11. ‘Eligible’ children fall into four categories:
• Children with special educational needs (SEN) or a mobility difficulty who cannot reasonably be expected to walk to school even though the school is within the statutory walking distance.
• Children whose route to school is unsafe.
• Children who live outside the statutory walking distance to school (currently 2 miles of under 8 years and 3 miles if between 8-16 years).
• Children from some low income families.
12. Councils also have discretion under s.508C of the Act to make provision for non-eligible children where they consider it 'necessary' to facilitate the child's attendance at school. A common situation where this may arise is where a child has a disabled parent.
13. References to relevant educational establishment in relation to an eligible child under unsafe route criteria means the qualifying school at which a child is a registered pupil as set out in Schedule 35B(4).
14. Schedule 35B(4) says a child will fall within this paragraph if:
1. they are of compulsory school age and a registered pupil at a qualifying school which is within walking distance of their home and,
2. the Council has not made suitable arrangements for them to become a registered pupil at a qualifying school nearer to their home, and
3. having regard to the nature of the routes they could reasonably be expected to take they cannot be reasonably expected to walk to the school mentioned in paragraph (a).
15. Qualifying schools are defined in Schedule 35B(15) and include community, foundation or voluntary mainstream schools.
16. The Guidance says at Paragraph 24 Timing of Assessment of Eligibility at the point when eligibility is being considered the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one. ‘For most children this will be during the normal admissions round when places are allocated. A smaller number of cases will need to be considered during the course of the school year eg as a result of families moving to a new area’.
17. Put simply this means that eligible children only qualify for free transport to their nearest qualifying school which is defined as the nearest publicly-maintained school with places available that provides education appropriate to the age, ability and aptitude of the child. (All Aboard Focus Report, page 3).
18. The Government has issued statutory guidance 'Home to School travel and transport' for local authorities ('the Guidance'). Councils must have regard to the Guidance when carrying out their duties. This means Councils can depart from the Guidance, but if they do, they must have a good reason for doing so.
19. If the child can physically walk the distance but is unsafe to do so unaccompanied, the Council must 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.
20. When considering whether a child's parent can reasonably be expected to accompany the child on the journey to school 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 that 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.
21. 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) It 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, 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; what factors were considered; the rationale for the decision reached; and information about appealing to us. (Annex 2 of the guidance)

Council’s policy ‘Travel assistance for Children and Young People attending School

22. The Council’s policy sets out the four categories of ‘eligible’ children as set out in The Act. It says ‘if you make a parental preference selection of a school that is not your nearest or catchment school you may not be eligible for travel assistance’.
23. For unsafe route eligibility the policy says ‘where a child is not eligible to the nearest suitable qualifying school because it is under the relevant distance threshold and the parent believes the nature of the route is unsafe for the child to walk (accompanied by an adult where a parent / carer would normally be expected to do so)they should contact the CBC Transport Team stating why they believe the route to be unsafe. CBC Transport Team will then assess the route’.
24. For a child without an Education, Health and Care (EHC) Plan the nearest suitable qualifying school will be the nearest or catchment mainstream school. ‘Also included is a school designated as the appropriate school for a particular child. This may include children who have been permanently excluded or placed under the Fair Access policy’.
25. The policy says the Council will not provide assistance to a school which is not the catchment or nearest suitable qualifying school based on parental preference.
26. The Council’s policy includes discretionary support in a range of situations, including exceptional circumstances but only where a child attends the catchment or nearest suitable qualifying school.
27. The policy says transport assistance is only provided on the basis of a formal application and where the criteria set out in the policy is met. For in-year applications the Council aims to process applications within fifteen working days.

Key events

28. Mr X moved into the Council’s area and made in-year school admissions applications in Summer 2021 for Y and Z. Due to being abroad and then the COVID-19 pandemic the children had been unable to attend school during 2021 so Mr X told me he was very anxious to get them into any school in September.
29. Mr X says he contacted the Council for information about which schools had places available.
30. The statutory walking distance that applied to both Y and Z was 3 miles.
31. The Council says Mr X could list three preferences on his application, which he did, but he also changed these several times. Mr X says this was because schools told him they were full, so he changed his preference to name different schools on advice from the Council.
32. The Council says Mr X did not apply for transport at the time school places were allocated, but several months later.

Y (older child)’s application for schools

33. Mr X says he applied to the catchment school (School A) as Y’s first preference, which is 1.8 miles from home, but no places were available at the time of his application. Mr X says Y was placed on the waiting list, but the school told him it was oversubscribed. Mr X also applied to School B (second preference) and School C (third preference).
34. The Council says Mr X applied again in late August listing three different preferences, which did not include the catchment school (School A). Mr X listed School C first, then School D, then School B.
35. Mr X says when he asked the Council which schools did have places the Council that told him only School B had a place available and he should resubmit his application with new preferences, which he did, with School B listed as his third preference.
36. Mr X said School B contacted him direct and offered a place which he accepted as based on information provided by the Council, no other school had a place available at that time.
37. The Council’s records at the time it received the second preference form in late August show Mr X’s application to Schools C and D were unsuccessful (that is they were full), ‘so [School B] remains offered’.
38. For School B to remain offered must imply that it had been offered previously. The Council has not recorded that School A was able to offer a place. The clear implication from the records available is that out of Mr X’s two lists of preferences only School B had a place.
39. Mr B says this was the basis on which he accepted the place at School B. School B was 2.0 miles from home.
40. The Council later said during Mr X’s complaint that:
• School C was full and Y was put on a waiting list.
• School D was fifteen miles away and again Y was put on a waiting list.
• A place became available at School D in mid-September and was offered. When Mr X did not reply the Council recorded this as a parental refusal of a place.
41. Mr X says he had already accepted the place at School B in August. School B was also closer than School D (2.0 miles compared to 15 miles).
42. Mr X later applied for transport to School B which was refused. Mr X appealed. As School B was within statutory walking distance, Y would only be eligible for transport if another ground such as unsafe route or SEN applied.

Transport Appeal and complaint for Y

43. The Council said Mr X had refused a place at School D before accepting a place at School B. Mr X denies this and says the place at School B had been accepted in August before the place at School D was offered in mid-September.
44. The Council’s response to the transport application said as Mr X had refused a place at School D before accepting School B the placement at School B was not ‘a local authority placement’ and there was no entitlement to free transport. I asked the Council what it meant by not a local authority placement it told me a local authority placement means a school allocated if all parental preference schools have been unsuccessful.
45. At stage one of the appeal process the Council said the school Mr X had chosen for Y was not the catchment or closest school. School A was Y’s catchment school. The Council again said as Y attended School B, and this was not a local authority placement, then there was no transport entitlement.
46. Mr X argued the route to School B was unsafe. The Council’s stage 2 response told Mr X by declining the placement offered from the council [School D] and opting to select an alternative school Y’s placement at School B is considered parental preference and therefore cannot be considered under the Distance or Unsafe route criteria.

Analysis

47. The Act says councils must provide free school transport to eligible children for the purpose of ‘facilitating the child’s attendance at the relevant educational establishment in relation to him’.
48. The Council had to determine Y’s relevant educational establishment as well as whether she was eligible under any grounds such as unsafe route.
49. The relevant establishment was the nearest publicly maintained school with places available at the time of the in-year application.
50. Mr X says, and Council documents confirm, that no place was available at the nearest school or catchment school for Y. However, the Council’s database had noted the application for School A as ‘withdrawn’ not as ‘place refused’. This meant when information was (much later) passed to the transport team, the transport appeal was refused on the basis Mr X had not applied to the catchment school and the place accepted was parental preference.
51. In July and August, at the time Mr X applied, the documents show the only school with a place available was School B. Mr X accepted a place at this school, he says before a place came available at School D. At the time he accepted the place at School B, School B was the qualifying school for transport eligibility purposes as it was the only school with a place available. I consider Mr X’s admission application ended when he accepted a place at School B. That a place came up at another (further away school) a few weeks later was not relevant for transport purposes. The relevant time for assessing transport eligibility was when the admission application was completed.
52. Even if places had been available at both School B and School D and offered at the same time, School B would still have been the qualifying school as it was nearer than School D.
53. In summary, I find that School B, which Y attends, was the qualifying school for transport and the Council should therefore have gone on to consider eligibility for transport, for example on grounds of unsafe route. I acknowledge the information on the database the catchment school application was ‘withdrawn’ misled the transport team, however I am satisfied the Council should have taken into account Mr X’s explanation that the application was withdrawn only because School A was full and investigated this further.
54. That School B is the relevant qualifying school does not mean the Council will necessarily agree Y is an eligible child due to unsafe route, but that it should have properly considered the matter and given Mr X a decision, with reasons, why it considered the walking route to be unsafe. Failure to do so was fault.

Z’s (younger child)’s application for schools

55. Mr X says he contacted the Council asking about which schools had places for Z.
56. Mr X had listed three preferences.
• School E, which was the catchment school and was 0.5 miles away.
• School B (the school where Y obtained a place) was 2.0 miles away
• School F was 2.3 miles away.
57. Two weeks after Mr X’s application School F offered a place which Mr X accepted. The Council’s records show Mr X informed the Council School F had contacted him direct to offer a place at the start of July. Mr X says based on information provided by the Council no other school had a place available at that time.
58. Four days after Mr X accepted a place at School F, School E told the Council it could ‘now’ offer a place. The Council passed this information on to Mr X, but Mr X had already accepted the other place.
59. Mr X considered he had no choice but to take the place at School F when this was offered due to the short period before the new term starting.
60. On the Council’s database Admissions recorded the place at School E as ‘offered’ and as the catchment school and School B and F as ‘withdrawn’.

Appeal and complaint for Z

61. Mr X applied for transport for Z, which the Council refused on the basis Z was attending a parental preference school (School F) and not the nearest / catchment school, School E, although School E had offered a place.
62. The Council also said that Mr X’s concerns the walking route to School F was unsafe were not a relevant point for the transport appeal because admissions had not placed Z at School F. The Council said road safety is only considered to the closest or catchment schools or when placed by the local authority and under the statutory walking distance for the age of the student.

Analysis

63. Mr X’ s evidence is that School F was the only school with a place available on the date he accepted the place.
64. School F was Mr X’s third preference and School E was his first preference. It would seem logical the only reason Mr X would have taken the place at School F was because School E did not have a place at that point.
65. Mr X accepted the place at School F four days before School E told the Council it ‘now’ had a place available. On the balance of probabilities, I am satisfied School F is Z’s qualifying school as it was the nearest suitable school with places available at the time Mr X’s application was resolved by him accepting the place at School F.
66. The Council’s transport decisions imply Mr X had a choice between School E and School F, but the evidence does not support this. This is fault.
67. The database does not record the accurate position as it states only a place at the catchment school was offered and other applications were withdrawn. It should have stated School F was offered and accepted. This misled the transport team. However the error would have become apparent had the Council taken into account Mr X’s explanation and investigated further.
68. As I have found Z is attending her nearest qualifying school with places available at the relevant time of the application, the Council should have gone on to consider eligibility for transport for example on grounds of unsafe route raised by Mr X. This does not mean the Council will necessarily agree Z is an eligible child due to unsafe route, but that it should have properly considered the matter and given Mr X a decision, with reasons, why it considered the walking route to be unsafe. Failure to do so was fault.

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Agreed action

Within four weeks of my final decision

69. The Council will apologise to Mr X for the fault identified.
70. The Council will pay Mr X £150 to acknowledge his time and trouble in bringing the complaint and the frustration his applications have not been considered correctly.
71. The Council will reconsider Mr X’s transport applications on the basis both children are attending the nearest publicly maintained school with places available at the time of their admission application. As both schools are within statutory walking, distance transport will only apply if Mr X can put forward evidence to support another ground of eligibility, such as unsafe route.
72. The Council will allow Mr X the opportunity to provide any further evidence to support his transport application before it is decided.
73. The Council will provide a decision letter, with reasons, whether transport is to be provided to either child.
74. If the Council changes its view about transport eligibility it should consider offering Mr X a financial remedy for any period when transport should have been provided had the application been properly considered earlier. If the Council again declines transport it should provide Mr X with the same rights of appeal as an initial application.
75. The Council should provide us with evidence it has complied with the above actions.

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Final decision

76. I have completed my investigation. There was fault by the Council in the way it considered transport applications as it failed to identify the children, while not attending the catchment schools, were attending the nearest schools with places available at the relevant time of their admission application. This casts doubt on the way the transport applications were decided. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman