Summary: Miss X complained that the Council acted unfairly when it decided not to award free school transport to her children. The Council was at fault. The Council did not carry out its assessment properly. The Council should apologise to Miss X and review its internal procedures.

The complaint

1. Miss X complained the Council refused to provide the free school transport she considers her two children are entitled to. Miss X said the Council acted unfairly, and the basis for refusing the school transport was flawed.
2. Miss X said this has impacted her ability to work full time and has subsequently caused financial hardship.

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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)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

4. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
5. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

6. 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 of charge. 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)

7. When Councils refer to ‘linked’ schools, it refers to the catchment area for the school. Many schools give priority to children living in the immediate local area, referred to as the ‘linked’ area or the catchment area.
8. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
9. The statutory guidance 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.
  (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

10. The Council publishes guidance about free school transport. It says:
• Free school transport can only be provided to the nearest suitable school, that has places,
• If a parent chooses to apply to a school that is not the nearest suitable school, they will likely be responsible for their child’s transport,
• Where a child’s nearest school is unable to offer them a place, the nearest school with places available is their nearest suitable school for school travel purposes.
11. The Council has timeframes in place for processing applications. It says:
• For applications for school transport, to start at the start of a new academic year, applications must be sent to the Council by the 3rd Friday in May,
• A decision may not be made and shared with parents until mid-August,
• It cannot guarantee the transport will be in place in time for the new academic year.
• For applications for school transport, to start mi way through an academic year, it may take up to six weeks to process and decide on an application.
12. The Council publishes guidance about school admissions procedures. As part of the guidance, it says:
• Applications for primary school places are coordinated nationally,
• Applications for schools outside of the Council area should still be submitted to the Council (where the child lives),
• The Council will liaise with the relevant authority about applications that are outside of its area.

What happened

13. Miss X has two children of primary school age. Both of her children attend school B.
14. School B was first choice on the applications Miss X made to the Council, for both of her children.
15. In between her first (child A) and second (child B) child starting school, Miss X moved closer to school B.
16. Miss X applied for free school transport for both of her children in February 2024.
17. In July 2024 the Council informed Miss X the applications had been declined. The Council said this was because Miss X had not chosen the nearest school to her home. It said she had made a choice based on parental preference. The Council listed two other schools which were closer. One of the schools was a private school.
18. Miss X appealed the Council’s decision. She said she knew of other local families using the transport service provided by the Council to get to School B. She said the bus the Council used appeared daily, to have spaces.
19. The Council referred to a change in its policy. For new applicants, free transport was no longer available to linked schools unless they were the nearest to home.
20. Miss X said she was not aware of the Council’s new policy, due to be in force from September 2024. She argued she applied for transport in February 2024 and her case should have been considered sooner, and in line with the old policy.
21. Miss X explained she had chosen to send her children to School B from her previous address but had been looking to move for some time.
22. In September 2024 an independent panel considered Miss X’s appeal at the final stage of the Council’s appeals process.
23. The panel considered information from Miss X and the Council.
24. Miss X said:
• She had chosen School B because it was the nearest in the local authority area. The other two options the Council had listed in the stage one appeal were in other local authorities,
• Other children in the local area to her home, attending School B, were receiving free school transport,
• Whichever school her children attended would require transport, all the schools were too far to walk to,
• She assumed she would not have received a place at either closer school to her home address, as neither were in the same local authority.
25. The panel decided the Council had properly applied its published policy. Because School B was not the nearest suitable school, it said, there was no entitlement to free transport.
26. During the stage two panel meeting, Miss X said a Council officer verbally told her that School B would be her children’s qualifying school, as there were likely no spaces at the closer schools.

My findings

Decision making

27. The Council said it made one significant change to its policy, for the academic year starting September 2024. The main change was that linked schools would no longer be treated as the nearest suitable school for new applications for school transport. Unless the school was the nearest suitable school with places available.
28. Neither Miss X’s previous nor current address seem to be in the linked area for School B. The new policy had no impact on her eligibility for transport. Even if Miss X’s previous address was in the linked area of School B, the policy states that if someone moves, they will be assessed against the new criteria. Based upon this alone, Miss X’s children would not be eligible for free transport.
29. The Council were correct in advising Miss X that whether the nearest school was in a different local authority, or not, was not relevant. Applications for school places (whether in its area or not) should be made to the local authority where the child lives. The Council will then make sure the applications are shared with the relevant local authority and coordinate the response to the parent.
30. The Council publishes school admissions guidance. This information is available on its website.
31. If a child does not attend the nearest suitable school, there is no entitlement to free transport.
32. However, what appears significant in the Council’s decision making was its uncertainty about availability of the schools it told Miss X were closer.
33. In the initial refusal letter sent to Miss X, from the Council, it named a private school as one which was closer to her home address. It should not have done this. A private school should not have been listed.
34. In the stage one and two appeal response, it went on to list other schools closer to Miss X. The private school was not referred to again in Council correspondence.
35. We would expect the Council to have ascertained the suitability of the schools it listed by confirming they had places for her children at the following times:
• for child B, in April 2023, at the point reception places were confirmed,
• for child A, in September 2023, as they moved into the next school year.
36. This is because, unless the Council evidenced there was a suitable school closer to Miss X, which could accommodate her children, there would be no basis for stating School B was not the qualifying (nearest, suitable) school.
37. The Council must have definite knowledge of availability and suitability of schools it refers to in its decision making.
38. The Ombudsman asked the Council about this more than once. We gave the Council several opportunities to explain its decision making.
39. In response to our formal enquiries the Council did not say how it considered availability of places. It simply referred to Miss X’s original application to School B.
40. In response to our draft decision for this investigation, the Council explained that it had since contacted the schools that are closer and confirmed that there would have been spaces available for both of Miss X’s children, in April and September 2023.
41. It maintained its position that it believed Miss X listed the school her children attend due to parental preference.
42. This was never in doubt. Miss X was forthcoming about this. However, what the Council should have done, from the point at which it decided on the school transport applications, was to show the availability of places in closer schools, as its evidence for not awarding the school transport. It could have done this, as it has since confirmed there were spaces available.
43. Difficulty in discussing and obtaining this information from the Council, during this investigation suggests it does not understand how it should consider suitability of schools, when awarding school transport. This indicates a training need for its staff.
44. The Council was at fault for failing to evidence the availability of school places for Miss X’s children, at schools it said were closer to her home. It should have been able to evidence this, at the point it made decisions about the school transport for her children.

Delay

45. Miss X made the application for free school transport in February. The Council did not reply until July. The Council told us it was late responding to Miss X’s original application for free school transport. In correspondence between Miss X and the Council, it referred to this being due to ‘in year applications’ being given priority. This was confusing as Miss X’s application was an ‘in year’ application.
46. Miss X waited for several months for a response which the Council’s guidance said should take six weeks.
47. This delay was fault by the Council and caused unnecessary uncertainty for Miss X.

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Action

48. Within four weeks of a final decision being issued, the Council has agreed to:
• Apologise to Miss X in line with our guidance on Making an Effective Apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
49. Within twelve weeks of a final decision being issued, the Council has agreed to:
• Issue reminder guidance about decision making for school transport applications. Ensure staff are aware of the need to evidence availability of school places in decision making, and in communication to parents.
• Share learning from this decision with the relevant teams, and panel members.
50. The Council should provide us with evidence it has complied with the above actions.

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Decision

51. I find fault causing injustice. I have recommended actions the Council should take to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman