Summary: We will not investigate this complaint about the Council’s decision not to provide Ms X’s child with free transport to school. This is because there is not enough evidence of fault by the Council.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained the Council rejected her application for home to school transport for her son (Y). Ms X says an appeal panel failed to properly apply the relevant legislation and the Council’s policy is discriminatory.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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What I found

Legislation

5. Local authorities must make travel arrangements, free of charge, to facilitate the attendance at school of eligible children resident in their area. (Section 508B, Education Act 1996).
6. A child is eligible if they are of compulsory school age, they attend their nearest suitable school, and:
• the distance from home to school is more than the statutory walking distance; or
• the child could not reasonably be expected to walk to school because of their SEN, disability, or mobility problem, even if accompanied by their parent; or
• they would not be able to walk to that school in reasonable safety, even if they were accompanied by their parent.
7. Paragraph 5 of the Department for Education’s Statutory Guidance (the Guidance) on Home to School Transport, explains the nearest secondary school to the home of a child of secondary school age will almost always be their nearest suitable school.
8. Eligible children also include those from low-income families. These are where the child is entitled to free school meals, or the family receives the maximum Working Tax Credit. This extra help includes free transport to children:
• Aged 11 to 16 who attend a school two to six miles from home – if it is one of the three nearest suitable schools.
• Aged 11 to 16 who attend a school two to fifteen miles from home – if the school is chosen because of religion of belief.
9. The Guidance requires local authorities to have regard to any wish of a parent to have their child educated at a school based on their religion or belief. But this does not mean local authorities must arrange travel to a particular school where parents have chosen it on such grounds. Councils should instead not have a blanket policy to refuse assistance in such circumstances. Local Authorities should make decisions on a case-by-case basis.
10. For children with an Education, Health and Care Plan (EHC Plan) the nearest suitable school will normally be the school named in their EHC Plan.
11. The Guidance recommends a two-stage appeals process for parents to challenge decisions about home to school transport.

Application and appeal

12. Ms X asked the Council to provide Y with free transport to her preferred secondary school. The Council refused Ms X’s application. It said the school Y would be attending was 8.51 miles away. The nearest suitable school was 2.68 miles away. The Council refused Ms X’s application on the basis Y was not attending the nearest suitable school. Even if Y attended the nearest suitable school, they would not qualify for free transport. This was because the journey to school was less than the statutory walking distance.
13. Ms X appealed the Council’s decision at stage 1 and 2 of its appeals process. Ms X sent written information in support of her appeals. Points raised by Ms X included:
• Y has SEN and the school he will attend is the only one able to meet his needs. The Council should therefore consider it to be the nearest suitable school.
• Because of Y’s SEN he is unaware of his surroundings and cannot be left unsupervised. Ms X could not take him to school due to work commitments and caring for her other children.
• Y did not yet have an EHC Plan due to delays by the Council. It should therefore make a reasonable adjustment to avoid discrimination.
• Ms X’s wish, based on her identity and beliefs as a member of the neurodiverse community, was the school Y would attend was the only appropriate school.
• Ms X had made changes to her pension contribution which would mean Y should be considered from a low-income family.
• Ms X was unaware of the criteria for free transport when applying for schools.
14. An independent panel considered Ms X’s appeal at the second stage of the Council’s process. Ms X had a chance to take part in the appeal. The panel refused Ms X’s appeal. The reasons for the panel’s decision included:
• Y would not be attending the nearest suitable school as defined in the Council’s policy.
• Y did not have an EHC Plan.
• Ms X’s original application had been correctly rejected.
• Even with the changes to Ms X’s income, Y would not be eligible as a low-income child.
• Information about transport eligibility was available to all parents.
• The additional information sent by Ms X did not show the school Y would attend was the nearest suitable for his needs.
• The panel decided Y was not eligible for free transport and it would not use its discretionary powers to set aside the Council’s policy.

Assessment

15. We will not start an investigation into Ms X’s complaint.
16. We are not a right of further appal and cannot question a council’s decision if it has made it in line with the correct process.
17. The Council initially decided Y was not an eligible child because he is not attending the nearest suitable school. That decision is in line with the relevant legislation set out in the Guidance and the Council’s own policy. There is no evidence of fault.
18. The Council then considered Ms X’s appeals in line with its published policy. This also aligns with the Guidance. Members of the panel considered the information presented by Ms X and the Council. The panel decided the Council had properly considered Ms X’s original application. The panel also decided the extra information from Ms X was not enough to make an exception to the Council’s published policy. These are decisions the panel was entitled to take. The panel confirmed its decision in writing as we would expect.
19. Ms X says the Council’s policy discriminates against children with disabilities. But it is in line with the Guidance and the evidence shows it has been properly applied.
20. While I understand Ms X is disappointed with the Council’s decisions, there is not enough evidence of fault in how they have been reached for us to become involved.

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Final decision

21. We will not investigate Ms X’s complaint because there is not enough evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman