Summary: Miss X complained about the Council’s decision to refuse free school transport for her daughter. There was fault in how the Council considered Miss X's appeal, but this did not result in a flawed decision. Nonetheless, the Council’s fault caused Miss X avoidable frustration, for which it will apologise. The Council will also remind staff of the test they should apply when considering free school transport appeals.

The complaint

1. Miss X complained about the Council’s decision to refuse free school transport for her daughter, W. Miss X also complained the Council held its stage two panel on a day she could not attend. Miss X said this caused her stress and financial worry.

Back to top

The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. 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)

Back to top

How I considered this complaint

6. I have considered:
• all the information Miss X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies, relevant law and guidance and the Ombudsman's guidance on remedies.
7. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

8. The Education Act 1996 sets out councils must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their qualifying school (a school which of a type listed in the act, such as an academy or voluntary aided school). The travel arrangements must be made and provided free of charge.
9. A child from a low-income family is ‘eligible’ if they attend one of their three nearest ‘suitable’ schools (providing the school is between two and six miles from their home) and if the child is aged 11 to 16.
10. A school is ‘suitable’ if it is a qualifying school, with places available, that is suitable for the child’s age, ability, aptitude, and any special educational needs they may have.
11. Councils should be prepared to offer free school transport where they do not owe the duty but the parent has exceptional circumstances. These are sometimes called discretionary decisions. The Council’s policy on free school transport gives examples of some of the situations where it might make a discretionary decision. These include when a child has a temporary medical condition which means they cannot travel to school using their normal arrangements and when the available walking route is unsafe.

What happened

12. This section sets out the key events in this case and is not intended to be a detailed chronology.
13. W previously attended her nearest school (School A), where Miss X says she was badly bullied. Miss X removed W from School A and later applied for her to attend a different school (School B). School B is the ninth closest school to W’s home.
14. W began attending School B September 2022.
15. In July 2023, Miss X applied for free school transport for W. The Council refused the application on the basis School B was not one of W’s three nearest schools.
16. Miss X appealed the Council’s decision. She sent evidence of the bullying she said W had dealt with at School A. Miss X also said the Council’s education department had told her to apply to School B.
17. As part of its stage one consideration, the senior officer carrying out the appeal sought information from School A on the bullying incidents. The officer also contacted the Council’s education department, which confirmed it had not recommended School B but had suggested it as a potential placement for W. The officer’s notes of the appeal state “any spaces at nearer schools, given [W’s age] at the time?”. There is no evidence the officer explored this further.
18. The Council did not uphold the stage one appeal. It said School B was not one of the three nearest appropriate schools with spaces available so it would not offer school transport.
19. Miss X asked for a stage two appeal. She said the only nearby school with spaces at the time she applied to School B was a school attended by some of the children that she said bullied W (School C).
20. The Council arranged the stage two panel for a day Miss X was unable to attend. Miss X said she was concerned this would impact the outcome of the appeal. The Council offered to ask the Chair of the panel if they would move the hearing to another date. It also said Miss X could send a video or recorded message for the panel to listen to or write a statement for it to consider. It reassured Miss X the panel would contact her if it had any questions. Miss X did not take up the Council’s offers.
21. The stage two appeal panel met and considered the evidence Miss X had sent as part of her appeals and the Council’s list of schools nearest to W’s home. It contacted Miss X for more information about W’s attendance and her reasons for not applying for school transport for the 2022/2023 school year. Miss X said W had poor attendance at School B in the 2022/2023 school year because of health reasons and financial issues. Miss X said she had been forced to reduce her working hours, which made paying for the bus more difficult. She also explained the Council’s children’s department had made her aware she could apply for school transport.
22. The panel came to its decision and sent Miss X a letter setting out its rationale. It said it had concluded School B was not one of the three nearest schools Miss X could have applied to. It said as a result, it agreed with the Council’s original decision that it did not owe W the duty to provide free school transport. The panel said it had considered Miss X’s circumstances, but they did not justify the Council providing free school transport outside of its policy.

Findings

Consideration of Miss X’s application and appeals

23. W was eligible for free school transport if she attended one of the three nearest suitable schools to her home. The Council refused Miss X’s application and did not uphold her appeals on the basis School B was not one of the three nearest schools. However, for a school to be ‘suitable’ for the purposes of transport, it needed to have spaces at the time Miss X applied to School B. There is no evidence the Council checked if any of W’s three nearest schools had spaces at the time of Miss X’s application to School B. This was fault and meant the Council’s initial decision and stage one and two appeals were flawed. This caused Miss X frustration.
24. The Council’s fault does not, however, call its decision not to award free school transport into question. In her request for a stage two panel, Miss X told the Council that School C had a place available when she applied to School B. School C is one of W’s three nearest schools. Miss X told the panel she did not send W to School C because some of her bullies attend that school. Miss X did not make any arguments to indicate the school was not suitable according to the definition set out in the Education Act 1996 (for W’s age, ability, aptitude, and any special educational needs).
25. On balance, even if the stage two panel had properly considered if any of W’s three nearest schools had places available, it would have concluded School C was ‘suitable’ for W and therefore, that W could have attended one of her nearest three schools and was not eligible for free school transport.
26. The Council’s stage two panel properly considered Miss X’s reasons for not sending W to School C and her other arguments for having free school transport, including her financial situation. It concluded Miss X’s circumstances did not justify it offering free school transport outside of its policy. There was no fault in the Council’s decision making so I cannot question the outcome of its decision.

Attendance at the stage two appeal hearing

27. The Council was not at fault; it offered to see if the panel would be willing to change the hearing date and offered Miss X ways to engage with the hearing without attending, including sending a video recording or a written statement. These were appropriate actions and it was open to Miss X to accept them. In any event, the panel considered the evidence Miss X had submitted with her appeals and contacted her for more information.

Back to top

Agreed action

28. Within one month of the date of my final decision, the Council will take the following actions.
1. Apologise to Miss X for the frustration she felt due to its failure to properly consider if the three nearest schools were ‘suitable’ for W when deciding her application for free school transport and when holding her appeals.
2. Remind staff involved in free school transport appeals that when deciding if there were closer suitable schools, they must check a school place was available to the child at the time of the admission applications.
29. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

30. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman