Summary: Mr B complained the Council refused to provide free home to school transport for his child, which he said was contrary to its policy. We found fault in how the Council described its policy, which did not explain how it measured home to school distance in all cases. It agreed to our recommendation to amend this. However, we did not consider this fault caused Mr B injustice. This is because he knew before choosing his child’s secondary school, which school the Council considered the nearest qualifying school for home to school transport purposes.

The complaint

1. Mr B complained the Council refused to provide free home to school transport for his child, C. He complained the Council did not follow its policy when deciding C did not qualify for help with their travel costs to school. He said C attended their nearest qualifying school, if the Council followed the method of measuring it set out in its policy.
2. Mr B said as a result, he had to pay for C’s transport to attend secondary school. C had to pay to use the bus or else he and his wife had to re-arrange their working patterns to take them by car, incurring petrol costs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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)
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. I considered evidence provided by Mr B and the Council as well as relevant law, policy and guidance.
7. I gave Mr B and the Council chance to comment on a draft version of this decision statement. I considered any comments they made before finalising the statement.

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What I found

Relevant law and guidance

8. 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). (Education Act 1996, 508B(1) and Schedule 35B)

9. Councils should have an appeals procedure in place for parents who wish to appeal about the eligibility of their child receiving travel support. Government statutory guidance recommends councils adopt the following two-stage procedure:

• Stage 1: review by a senior officer. Within 20 working days of receiving a written request to appeal the decision, a senior officer reviews it. They send the parent a detailed written notification of the outcome of the review setting out their decision. They should explain what information they took account of, the rationale for the decision reached, and how the parent can escalate their case to stage 2.
• Stage 2: review by an independent appeal panel. Within 40 working days of receipt of the parent’s request a panel should consider written and verbal representations. The Panel should provide a detailed decision setting out its reasoning. It should say what factors it considered; the rationale for its decision and information on making a complaint to the Ombudsman. (Department of Education, Travel to school for children of compulsory school age - statutory guidance 2023, Part 5)

10. Government statutory guidance also says:

• When a local authority assesses whether the distance between a child’s home and their school is further than the statutory walking distance, the route they measure must be the shortest route along which a child, accompanied as necessary, may walk in reasonable safety. This is not necessarily the shortest distance by road. The route may also include footpaths, bridleways, other pathways and alternative entrances to the school (paragraph 12).
• Children may sometimes live a very similar distance from more than one school. Where the schools are within the statutory walking distance, local authorities should determine which is the nearest by measuring the shortest walking route […]. Where the schools are beyond walking distance, local authorities may consider it more appropriate to measure the shortest road route or the straight-line distance. It should be clear in the local authority’s school travel policy how the route will be measured (paragraphs 38 & 39).
• It should be clear to parents how they can find out their nearest school for admissions purposes and whether this is also their nearest school for school travel purposes (paragraph 43).

11. In 2017 the Ombudsman published a focus report which set out the general principles we follow when we receive complaints about school transport - https://www.lgo.org.uk/assets/attach/4087/School-Transport-FINAL-FINAL.pdf. We stressed that councils should:

• provide clear and accurate information about school transport polices;
• ensure information is available in line with the relevant school admission round;
• that parents should be able to find out how the Council measures distance to the nearest qualifying school.

Relevant Council policy

12. The Council publishes a Home to Educational Establishment Travel Assistance Policy. Section 3.1 explains the Council must provide free home to school travel for children aged 8 or over attending their nearest qualifying school, when it is more than three miles from home.
13. Section 3.3 explains “the process that will be followed when considering whether a child is eligible for assistance on the grounds they live beyond the statutory walking distance (along a non-hazardous route) to the nearest qualifying school […]”. It says the Council will use in-house mapping technology to measure distance “along the footpath network” from the home to the education setting and “by way of the nearest available walking route”. The section then goes on to explain in more detail how the Council decides what walking routes it considers safe or hazardous.

The key facts

14. Since September 2024 C has attended a secondary school I will call ‘School X’. It is around five miles from C’s home address by road.
15. In June 2023, before C applied for a place at School X, Mr B contacted the Council and asked the following: “which secondary school does [home postcode] fall under for transport purposes?”.
16. The Council answered that School Y was the nearest qualifying school, providing a distance measurement of around four and a half miles from the home address, which equates to the shortest driving route. The Council said: “under current policy, a child would be eligible for free school transport from your address to [School Y]. We would need confirmation from our Admissions team that any nearer schools could not have offered a place, if you apply for transport to any other school than [School Y], to be eligible”.
17. The Council also provided measurements for School X (the second nearest school) and three other schools.
18. After C received a place at School X, Mr B asked for the Council to provide them with home to school travel assistance. In line with its earlier advice, the Council refused the request. It said C did not attend their nearest qualifying school. The Council offered Mr B a right of review, and Mr B asked for a review in August 2024.
19. In his review request Mr B explained his understanding that under the Council’s policy the nearest qualifying school was that with the shortest safe walking route from the home address. He said this was School X, because walking the shortest route to School Y involved a stretch of unsafe road. The shortest safe walking route from the home address to School Y took the journey over five miles, further than that from home to School X.
20. In its reply sent in September 2024, the Council said it did not consider the safety of the shortest route between home and school, where the distance between the two was more than three miles. So, it said School Y was C’s nearest qualifying school. It said had C applied to School Y they would have received a place there. So, the Council could not provide travel assistance for C to travel from home to School X. The Council offered Mr B the right to appeal its decision to a review panel.
21. Later that month Mr B made an appeal, subsequently heard by a panel of three elected Councillors, assisted by a legal officer. In his case to the appeal Mr B pointed to section 3.3 of the Council’s home to school transport policy. He provided data to support his view that measured by safe walking routes School X and not School Y was the nearest qualifying school.
22. The Council continued to defend its position saying it did not take account of safe walking routes where the home to school distance was more than three miles. It introduced at appeal that Mr B had taken advice on which was C’s nearest qualifying school in 2023.
23. The review panel recorded its deliberations, noting that it found the Council policy unclear. However, it considered the Council had still followed its policy and so it refused Mr B’s appeal. It recommended the Council amend its policy to “make clear that if the nearest school to a home address is over the relevant statutory walking distance, then the route is calculated based on the driving route and not the walking route”.

My findings

24. I began my analysis by considering the approach a council should take when a child’s nearest ‘qualifying school’ is further than the statutory walking distance from home, whichever school they choose. There is some tension in the Government guidance. In one place it implies the Council should only measure distance to identify the nearest qualifying school using the “shortest route” along which a child “may walk in reasonable safety”. But elsewhere it says in this circumstance, councils have discretion to measure using the “shortest road route or straight-line distance” instead.
25. I considered therefore councils have discretion. Where a school is further than the statutory walking distance, they can choose to identify the nearest qualifying school using the safe walking route, or the shortest road distance. But whatever method it chooses, a council should be transparent and apply its policy consistently.
26. I found Government guidance also made clear that councils should make information available in advance to parents on what they consider is the child’s nearest qualifying school for home to school transport purposes. This is so a parent can make an informed choice on what school they want their child to attend, weighing the availability or non-availability of home to school travel assistance in the balance.
27. Applying these general principles, I did not find any inherent fault in the Council using the shortest road route to identify the nearest qualifying school to C’s home. There was no overriding legal requirement for the Council to measure the home to school distance using the shortest safe walking route.
28. However, the Council had set an expectation in its policy that it would use the safe walking route to measure this distance and not the shortest road route. Section 3.3 makes no mention that it will use any other method to measure home to school distance other than using “the footpath network” and “walking route”. It does not qualify that this only applies in some cases and not where children live beyond the statutory walking distance.
29. I accepted that in practice the Council had been following a different policy to that set out in section 3.3. I saw no reason to doubt what the Council said in response to Mr B’s review and in its submissions to the appeal panel. That when a child had a choice of schools and they all lay beyond the statutory walking distance, it would measure the nearest qualifying school without reference to the footpath network. I noted this was consistent with the answer it gave to Mr B’s enquiry in June 2023, when he asked which was C’s nearest qualifying school for home to school transport purposes.
30. The fault in this case lay therefore not in the policy the Council had chosen to follow, nor in any inconsistency in how it applied its policy, but in the information it published about that policy. It was not transparent. A point its appeal panel recognised and sought to remedy.
31. I could not fault the Panel therefore, for taking the view the Council had followed its policy while also saying it needed to make it clearer. While at first sight this appeared contradictory, I considered the logic of its position clear.
32. Where I considered the Panel was less clear, was in considering the impact of the written policy on Mr B. The Panel needed to consider if the written policy had misled Mr B when he chose for C to attend School X over School Y. On this point neither the Panel deliberations nor its decision letter fully explained its thinking. But it knew that before C applied for School X, the Council had told Mr B that it considered School Y would be C’s nearest qualifying school. I presumed it gave that factor some weight when it decided not to uphold Mr B’s appeal, although it failed to explain this directly to Mr B.
33. This led me to consider therefore if we should refer the case back for the Panel to reconsider. But I decided against this, as I did not consider such a referral likely to lead to a different outcome.
34. This was after considering whether the fault by the Council had resulted in an injustice to Mr B.
35. I could not make that finding. This was because, even though it could not be established from the policy, Mr B knew before deciding which school C would attend, which school the Council considered C’s nearest qualifying school. Mr B told me he did not question the advice at the time, as he did not know which school C would choose. Also, because there was at that time, no decision to appeal.
36. I accepted this. However, I could not overlook that when Mr B chose for C to attend School X, he knew there could be no guarantee of support with home to school transport. I agreed with Mr B the written Council policy could only be read one way. But the answer to his enquiry showed in practice the Council used a different method to calculate distance to what the policy said.
37. So, it was apparent in June 2023 the Council used the shortest driving route to decide C’s nearest qualifying school. Only by this measure would School Y be so noticeably closer to the home address than School X and tally with the measurements the Council gave Mr B. I also noted the schools the Council ranked third to fifth in its list of nearest schools, involved routes with roads likely considered hazardous.
38. So, in summary while the Council was not transparent about the policy it followed, it was transparent about which it considered C’s nearest qualifying school before C needed to apply. In these circumstances, I did not consider the Panel duty bound to have upheld Mr B’s appeal. And I could see no grounds to recommend that it reconsider or for this office to recommend a different outcome.

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Agreed Action

39. Because I did not find fault by the Council resulted in a personal injustice for Mr B, I could not recommend a personal remedy for his complaint.
40. However, his complaint highlighted a flaw in the Council’s written policy. I noted the appeal panel which heard Mr B’s case sought to remedy this, but the Council had not yet amended its policy. It agreed therefore that within 20 working days of a decision on this complaint it would:

• re-write section 3.3 of its home to school transport policy. This will explain how it measures home to school distance to establish the nearest qualifying school, where a child lives beyond the statutory walking distance.

41. The Council will provide us with evidence when it has complied with the above.

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Final Decision

42. For reasons set out above I upheld this complaint finding fault by the Council. This did not cause injustice to Mr B. But the Council needed to take action to prevent a repeat of the fault, which it agreed to do. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman