Summary: Mrs G complained about the Council’s poor handling of her free home to school transport application and appeal. She said as a result she experienced distress, uncertainty and had to transport her daughter to school. We found the Council at fault for causing delays, communicating poorly with her, and it failed to consider her appeal as set out in its policy. The Council should apologise and make payment to acknowledge the uncertainty it caused. It should also offer Mrs G for its appeal panel to consider her case.

The complaint

1. The complainant, Mrs G, complained about how the Council dealt with her free school transport application and appeal for her daughter (X). She said the Council had failed to:
• provide enough information about the nearest suitable school until after she applied for schools:
• properly consider and explain how it had calculated the walking distance to relevant schools as there is no safe walking route; and
• respond to her appeal as set out in its policy.
2. Mrs G said, as a result, she experienced distress and a loss of trust in the Council. She also said she had time and trouble to raise her concerns and had cost to provide transport her daughter to school.

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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 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)
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)

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How I considered this complaint

6. As part of my investigation, I have:
• considered Mrs G’s complaint and the Council’s responses;
• discussed the complaint with Mrs G and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• had regard to the law, guidance, and policy relevant to the complaint.
7. Mrs G 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

Free home to school transport

8. Section 508B Education Act 1996 says for ‘eligible’ children, councils must make such travel arrangements as they consider necessary to secure that ‘suitable’ home to school travel arrangements are made to facilitate attend the child’s attendance at their relevant educational establishment, and that these arrangements are provided free of charge.
9. For arrangements to be ‘suitable’, they must be safe and reasonably stress free, to enable the eligible child to arrive at school ready for a day of study.
10. A child under the age of eight is eligible for free transport to their nearest, suitable school if it is more than two miles from home. For a child over the age of eight, it is more than three miles.
11. The Department for Education’s statutory guidance was updated recently. The 2023 guidance says councils must ensure the travel arrangements take account of the needs of the child concerned. Some children will need the support of a passenger assistant.
12. Assessments should take account of a child’s physical ability to walk to school, accompanied or unaccompanied, on a case-by-case basis.
13. The statutory guidance says councils should have both a complaint and an appeals procedure for parents to follow should they have cause for complaint about the service or wish to appeal about eligibility for travel support or about the travel arrangements proposed. It says appeals should have two stages: Stage one conducted by a senior officer and stage two by an appeal panel independent of the process to date. The appeal panel should consider written and verbal representations from both parents and officers involved.

Council Policy

14. The Council’s website shares information about finding secondary schools in its area. This includes:
• information about how to find schools through a link to a government website. This helps parents filter nearest suitable schools from a home address or a postal town.
• It suggests parents should consider which school they apply for to ensure they can transport their child, public transport is available, or that a child is attending their nearest suitable school if free school transport is to be applied for.
15. The Council’s policies ‘Applying for a Secondary School place’ and ‘Home to school transport and travel assistance policy 2023-2024 both sets out the Council can provide free school transport to children attending their nearest suitable school. In line with the Department for Education’s guidance this is:
• for a child under 8, where the walking distance is more than 2 miles from home to school;
• for a child aged 8 to 16, where the walking distance is more than 3 miles from home to the school; and
• for a child where the route has been assessed as unacceptable to walk according to the council’s published criterion.
16. The policy says if a parents choose a school place for their child that is not the nearest or a linked school, they will be responsible for the cost of their child’s transport to and from school.
17. If there is no space at a child’s nearest suitable or linked school, free home to school travel arrangements will be provided to the next nearest suitable school, subject to the distance and route acceptability criteria.
18. If a child is placed at the nearest suitable school available to them and the parent applied for free home to school transport, the Council uses google maps to determine the walking miles distance to the school, it will then consider the safety of the route.
19. If the Council’s refuses a free school transport application, there is a right of appeal which must be made within 20 days of the decision. The Council can consider appeals on the grounds of:
• Eligibility;
• Distance measurements;
• Safety of the route; and
• Transport arrangements offered.
20. A senior officer from the Council’s Highways will review the original decision and share the outcome of the Council’s review with the parent within 20 days of the request.
21. A parent can request for the appeal decision to be considered by an independent panel made up of three members of the Council. Such requests will be considered within 40 working days of the request.

What happened

22. Mrs G has a daughter (X) who attends school in the Council’s area. In late 2022 she applied for secondary school places for the 2023/2024 academic year. She listed three preferred schools. School Z was her first preference, and X was offered a place.
23. In Spring 2023 Mrs G applied to the Council for free home to school transport assistance for her daughter to attend School Z.
24. Mrs G chased the Council by email and phone over the following three months to get the outcome of her application. She said she was promised responses, but she did not receive any.
25. In June 2023 Mrs G complained to the Council as she had not received a response to her free home to school transport application.
26. In July 2023 the Council responded to Mrs G’s free school transport application. It apologised for the time it had taken to process her application and refused her application as X did not qualify. It said this because School Z was not the nearest suitable school based on walking miles from X’s home. It explained its policy and said there were three suitable school school’s nearer to X’s home. The Council also shared information about how Mrs G could appeal its decision.
27. Mrs G appealed the Council’s free school transport refusal. She said she lives near a busy road with no footpaths. This meant there was no safe walking routes to the nearest schools for X, even if accompanied by an adult. She disputed how the Council had calculated the walking route as this was not a safe walking route.
28. In response to Mrs G’s complaint the Council said it had now provided the outcome of her free school transport application. It apologised for the delay to process the application and respond to her communication. It said it had reviewed staffing within the team to mitigate the issues going forward.
29. In August 2023 Mrs G complained again to the Council as she had not received any information about her appeal regarding X’s free home to school transport and it had taken longer than the 20 working days set out in its policy.
30. Three days later the Council sent Mrs G a combined complaint and appeal response regarding X’s free home to school transport. It acknowledged it had failed to provide its appeal response within the timescales set out in its policy and apologised. However, it did not uphold her complaint or accept the grounds of her appeal relating to the outcome of her free home to school transport application as X was not attending her nearest suitable school.
31. Mrs G again disputed the Council’s decision. She said:
• she had not been made aware of how to find out which school would be classed as the nearest school when she applied, which put her at a disadvantage as the walking distance calculation had not taken account of the route being unsafe for X’s to walk, and questioned how the Council had calculated the distances to schools;
• it had not followed the Department for Education’s guidance on free school transport. She said this was because it should assess whether the walking distance could be walked safely by X whether accompanied by an adult or not;
• she provided reasons why she had not applied to the three school’s the Council said was nearer to X’s home; and
• it had taken the Council six months so far without a satisfactory response to her concerns.
32. In November 2023, the Council decided to respond to Mrs G as a final complaint response. It apologised to Ms G for the delay in responding to her complaint. However, it found its transport decision had been made in line with its policy, which was available when she applied for X’s secondary school places on its website.
33. Mrs G asked the Ombudsman to consider her complaint.
34. In response to our enquiries the Council acknowledged it should have responded to Mrs G’s complaint and free home to school transport appeal separately, and it should have given her appeal rights for its panel to consider her transport appeal at stage two. However, it believes it has responded to her appeal through its final complaint response, and it was not possible to say if X would have been admitted to the nearest suitable school as an admissions test was required.

Analysis and findings

Information available to Mrs G before applying for schools

35. I found the Council provided Mrs G with enough information through its policies ‘Applying for a Secondary School place’, ‘Home to school transport and travel assistance policy 2023-2024, and its website. In reaching my view I was conscious these set out:
• how Mrs G could apply for secondary schools and which schools were the nearest to X’s home. This was through the government website which shows the distance to school Z was further than several other schools in the area; and
• a warning about considering school transport as the nearest suitable school must be applied for if free home to school transport will be applied for. Otherwise, the parent accepts responsibility for ensuring their child attends school without free home to school transport.

Council free home to school transport decision

36. The Council’s policy says it requires all free home to school transport applicants to apply to their child’s nearest suitable school as determined on the government website.
37. The evidence shows Mrs G did not apply for X to go to the nearest suitable school to her home. This is because there were other schools which were closer to her home both based on the government’s website and the walking distance in miles based on google maps. I understand Mrs G believes School Z was a suitable school and she had her reasons for applying for it. This included the safety of X walking to school.
38. However, as Mrs G did not apply to the nearest suitable school for X, I have not found fault in Council’s decision she was not entitled to free home to school transport. This is because the statutory walking distances and any concerns about safety of the walking route is first considered after a parent has applied to the nearest suitable school in line with the Council’s policy.
39. The Council agreed it was at fault for its delay in reaching its decision and poor communication with Mrs G until it made its decision. I am satisfied this caused her some distress due to the uncertainty this caused around arranging transport for X for the new academic year.

Appeal and complaints handling

40. Mrs G complained about the Council’s handling of her free school transport application. She then appealed its decision to refuse her application.
41. The Council upheld Mrs G’s complaint about its handling of her application. It apologised and explained this had been due to staffing issues, which had since been addressed through recruitment. However, it did not action her request for an appeal. This was fault, and it was first when Mrs G again complained to the Council it provided a response.
42. The Council has since agreed its combined complaint and appeal response should have been made separately and Mrs G should have been given appeal rights for the Council’s appeals panel to consider her disagreement with the Council’s free home to school transport decision.
43. I agree with the Council. Mrs G’s complaint and her appeal should have been dealt with separately, and as a result of failing to do so, she had a loss of opportunity to have the Council’s appeals panel consider her appeal. This was fault.
44. I would expect the panel to have regard to the Department for Education guidance on free home to school transport and the discretionary powers available to the Council under section 509 of the Education Act 1996. This asks local authorities to consider each application on a case-by-case basis, regardless of whether Mrs G applied to the nearest suitable school to X’s home. This would also include considerations to the fact there may not be any safe walking routes for X to any schools she could have applied for. It should then have reached a decision on whether her circumstances justified a departure from its policy.
45. As the Council’s responses to Mrs G’s complaints and appeal did not address this, I cannot say what the appeal panel’s decision may have been. The Council should therefore offer Mrs G for its appeals panel to reconsider her appeal and give her the opportunity to share her views.
46. If the panel decides X was entitled to free home to school transport from the start of the 2023/2024 academic year, the Council should consider what remedy is appropriate to acknowledge the impact and costs Mrs G had between September 2023 until free home to school transport is available to X.

Service improvements

47. I understand the Council has only recently become responsible for free home to school transport, and as a result it had insufficient staffing available to deal with the number of applications it received.
48. However, it has since recruited to posts, updated policies for staff and provided training to ensure all staff understand the processes and responds within the deadline set out in its policy. The Council has therefore actioned the recommendations I would have made, I have therefore not made any service improvement recommendations.

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Agreed action

49. To remedy the injustice the Council caused to Mrs G, the Council should, within one month of the final decision:
1. apologise in writing to Mrs G, and pay her £200 to acknowledge the distress and uncertainty the Council’s poor handling of her free home to school application, complaint, and appeal caused her, including her delayed opportunity to have its appeal panel consider the case; and
2. offer Mrs G for its appeal panel to consider her appeal against its free home to school transport refusal as set out in the Council’s policy. The panel should have regard to X’s individual circumstances and the discretionary powers available to the Council under section 509 of the Education Act 1996; and
3. if the appeal panel finds X was entitled to free home to school transport for the 2023/2024 academic year, it should consider what remedy is appropriate to acknowledge the impact the lack of free transport had on Mrs G from September 2023 until free school transport is available to X.
50. The Council should provide us with evidence it has complied with the above actions.

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Final decision

51. I have completed my investigation with a finding of fault by the Council which caused Mrs G an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman