Summary: The Council was at fault for failing properly to consider Mrs X’s request for free school transport for her child. The Council has agreed to apologise, provide free transport, and repay Mrs X the costs of transport since she applied. The Council has also agreed to our recommended service improvements.

The complaint

1. Mrs X complained that the Council wrongly refused her application and appeal for free school transport for her child.
2. As a result, she has experienced financial loss and avoidable distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 considered the complaint and the information Mrs X provided.
6. I made written enquiries of the Council and considered its response along with relevant law and guidance.
7. I referred to the Ombudsman's Guidance on Remedies, a copy of which can be found on our website.
8. Mrs X and the organisation 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

School transport

9. 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’. The travel arrangements must be made and provided free. 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)

10. Councils should have an appeals 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)
11. If a council’s policy is clear that to get free school transport the parent must have applied for the nearest school during the school admissions process, this policy would not be fault. For the policy to be clear, it should include details of how parents can find out which is their nearest suitable school. Although school admissions and school transport are set out in different legislation, our view is councils can manage their school transport duties by telling parents they should apply for the nearest qualifying school. This would be the council making ‘suitable arrangements’.
12. If a council’s policy is not clear, then when a parent applies for school transport the council needs to assess whether the child had a real prospect of securing a place at the nearest school if the parent had known and had applied for a place there. Sometimes local school admission arrangements and patterns of oversubscription mean there is little or no chance of a child getting a place at their nearest qualifying school.

What happened

13. Mrs X has two children, Y and Z. Her eldest child, Y, attends School 1 and gets free transport. When applying for school places for Y, Mrs X put School 2 as her first preference. Y did not get a place at School 2.
14. When Mrs X applied for secondary school places for Z, she put School 1 as first choice. School 2 was her third choice. Z got a place at School 1 because Y was already a pupil there. The Council decided Z was not eligible for free transport because Z was not attending the nearest qualifying school.
15. Mrs X asked for an appeal of this decision in January 2023. The stage one appeal outcome was that Y was eligible because Mrs X had put School 2 as her first choice. Z was not eligible because School 1 was her first choice, which wasn’t her nearest school.
16. Mrs X asked for a stage two appeal. At the appeal, she explained that School 2 was very over-subscribed, and she knew Z would not get a place if she put it as her number one choice.
17. In April, the appeal panel refused Mrs X’s request for school transport. Its decision said that Z attended School 1 “which was your first choice of school, and which is not the nearest qualifying school.”
18. In response to my enquiries, the Council confirmed Z would not have been admitted to School 2 if that had been Mrs X’s first choice.

My findings

19. The Council and the appeal panel told Mrs X that Z did not qualify for free school transport because Z did not attend the nearest suitable school.
20. The Council’s school admissions information does not provide the transport information necessary for parents to make an informed decision about which schools to apply for. It:
• tells parents to be realistic about their child’s chances of getting a place when applying for schools. The information for School 2 was that the last school place the previous year went to a pupil who lived 1.6 miles away from the school. Mrs X lives over 2 miles away.
• does not tell parents they need to apply for their nearest school as first preference to get free school transport. It says that free transport is available if the child lives over three miles from the “nearest available school”. “Nearest available” means the nearest suitable school with places available.
• does not tell parents how to work out what their nearest school is for transport purposes. This is important because the distances used for school admission are “as the crow flies”, while the distances for school transport are based on the shortest safe walking route. In this case, the nearest school to Mrs X for admissions purposes is 1.67 miles away. But this is a 3.1 mile walk.
21. Mrs X could not, therefore, have known that she needed to put School 2 as her first preference for Z to get free transport to School 1.
22. When a parent applies for transport to a school beyond the statutory walking distance that is not their nearest school, the Council should not automatically refuse it if the parent did not put the nearer qualifying school as first preference during the admissions process. It also needs to assess if the nearer qualifying school is suitable and whether the child had a real prospect of getting a place there.
23. In reaching its decision, the appeal panel failed to consider whether Z would have got a place at School 2 had Mrs X put it first. Not to have considered this was fault. Z would not have been admitted to School 2 had Mrs X put it as her first choice. It was not, therefore, the nearest suitable school with places available.
24. If it were not for the fault, the panel would have decided Z attended the nearest school with places available, which was over three miles away. This means Z qualified for free school transport.
25. As a result, Mrs X has experienced avoidable distress and financial loss in paying for transport for Z. This is an injustice to Mrs X.

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Agreed action

26. To remedy the injustice to Mrs X from the fault I have identified, the Council has agreed to:
• apologise to Mrs X in line with our guidance on Making an effective apology;
• provide Z with free school transport; and
• pay Mrs X the value of the transport from January 2023 until the point the Council begins providing transport for Z.
27. The Council should take this action within four weeks of my final decision.
28. The Council should also take the following action to improve its services:
• Amend its school admissions information for parents to make it clear they must name their nearest school as first preference to qualify for free school transport and tell parents how to work out which school this is, for transport purposes.
• Remind relevant staff that when a parent applies for transport to a school beyond the statutory walking distance that is not their nearest school, the Council should not automatically refuse it if the parent did not put the nearer qualifying school as first preference during the admissions process. It also needs to assess if the nearer qualifying school is suitable and whether the child had a real prospect of being offered a place there.
29. The Council should tell the Ombudsman about the action it has taken within three months of my final decision.

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Final decision

30. I have completed my investigation. There was fault by the Council. The action I have recommended is a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman