Summary: Mr X complained the Council failed to follow government guidance when deciding the route Y’s school transport should take. We find the Council at fault for failing to evidence its decision-making process and for providing incorrect information, creating uncertainty for Mr X. The Council should apologise, make a symbolic payment to recognise the injustice, and act to prevent recurrence.

The complaint

1. Mr X complains about how the Council decided on what school transport is suitable for his daughter, Y. Mr X says the transport the Council provides takes between 75 and 90 minutes due to multiple stops along the route and means Y arrives at school distressed and not ready to learn.

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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. 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr 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

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);
• 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)
9. Government guidance says as a general guide, the maximum journey time for as child of primary school age should be 45 minutes each way, and 75 minutes each way for a child of secondary school age. The guidance recognises this may not always be possible, particularly where a child needs to travel a long way to the school named in their Education, Health and Care (EHC) Plan.
10. The guidance also explains councils have a duty to promote the use of sustainable travel, including the use of shared transport.
11. If only one school is named in a young person’s EHC Plan, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration. This is because the council has not made arrangements for the child to attend a closer school. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
12. The Council’s Education Travel Policy (the policy) can be found on its website and reflects the law and guidance set out above.

What happened

13. I have summarised below some key events leading to Mr X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
14. Y has SEN and her education is supported by an EHC Plan. Following an annual review, from April 2024 Y’s EHC Plan named only School A, an out-of-borough specialist primary school.
15. The Council provided travel assistance to and from School A by use of a shared taxi with two other students and a journey time of around 45 minutes each way.
16. In June 2024, the taxi service reported behavioural issues from Y at times where the taxi was stopped and queueing to enter School A. The Council briefly removed morning transport for Y, but reinstated this when School A agreed special measures, such as allowing the taxi to bypass the queues.
17. In July 2024 the Council wrote to Mr X to explain three additional students would be joining the route to and from School A from September 2024. It explained Y would now be travelling in a larger taxi and this would increase the journey time.
18. Mr X complained to the Council as he said the journey time now significantly exceeded government guidance. Mr X reminded the Council Y had previously experienced issues on the journey and said the new pickups, taking the journey time beyond 45 minutes, may result in a recurrence. Mr X said he knew the journey should not take more than 25 - 35 minutes one way even during busy times and he did not feel the Council was treating Y fairly.
19. The Council responded to explain the 45-minute journey time was best practice, but not always possible particularly with out-of-borough schools. The Council said it had to extend the time to allow it to offer services in a more efficient manner. The Council said for out-of-borough primary schools, it aims not to exceed the guidance of 75 minutes which is suggested for secondary school aged children. The Council said School A was parental preference so it was only providing transport on a discretionary basis and said Mr X could consider receiving mileage reimbursement if he would prefer to transport Y to and from school.
20. In response to our enquires the Council has said it received no reports of Y arriving at school distressed or unable to access education due to the length of the journey following its decision to change the route in September 2024. The Council also said shared transport with five other students has increased the overall journey time and it has not been feasible to create a shorter, more direct route. However, the Council has not provided evidence of its decision-making from the time or how it weighed up competing priorities within the guidance.

Analysis

21. The Ombudsman is not an appeal body. It is not our role to take a second look at a decision on how to provide school transport to decide if it was right or wrong. We are not here to substitute the Council’s opinion for our own when it comes to matters such as what is an appropriate route to school. Instead, we look at the processes a council followed to make its decisions. If we consider it followed those processes correctly, and they were in line with the relevant law and guidance, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
22. In the academic year 2023/24 the Council provided transport to and from School A through use of a shared taxi with a journey time of roughly 45 minutes each way, in line with the guidance. There was an incident where Y became unsettled due to the length of time spent waiting in the taxi, but measures were put in place to remedy this. I do not find fault with how the Council provided school transport for Y in the academic year 2023/24.
23. From September 2024, the journey time increased beyond 45 minutes as three additional students needed transport to and from School A. The Council said this was in order to meet the guidance to promote sustainable transport. Elements of the guidance often pull in different directions and in those instances the Council will need to decide which to give most weight to. Exceeding the 45-minute journey time in order to promote sustainable transport is not in itself a reason to find the Council at fault.
24. However, the Council has not provided me with records to show its decision-making process and what it considered when deciding the guidance to promote sustainable transport outweighed the guidance for journeys not to exceed 45-minutes. It is not my role to say what decision the Council should have reached, but not providing evidence to show its considerations from the time, how it considered the impact on Y, and how it weighed up how the additional cost of a second taxi offset the need to keep the journey time below 45 minutes amounts to fault and creates uncertainty which is injustice.
25. The Council has said there were no reports of incidents involving Y on school transport or arriving at school unable to engage in education following its decision to change her route. This being the case, I would not find the Council at fault for failing to review the route during the course of the year, but the initial uncertainty remains. I say this particularly as I cannot see the Council ever gave Mr X a clear explanation around why it decided the guidance to promote sustainable transport outweighed the guidance for journeys below 45-minutes, particularly when it had previously been able to achieve journeys of that length for Y.
26. In its responses to his complaints, the Council told Mr X transport was provided on a discretionary basis as School A was parental preference. However, this is incorrect as School A was the one school named on Y’s EHC Plan, meaning that is the school the Council had deemed to be the nearest suitable school for her. The Council also said for out-of-borough schools it is not always possible to meet the 45-minutes set out in the guidance and so it works to the 75-minutes suggested for secondary school aged children. However there is nothing in the guidance or the Council’s policy around using the 75-minutes as a substitute for out-of-borough schools so it is unclear where this rationale has come from. This incorrect and misleading information from the Council amounts to fault and creates further uncertainty, which is injustice.

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Action

27. To remedy the injustice identified above, the Council should carry out the following action.
28. Within one month of the date of this decision:
• Write to Mr X to apologise for the uncertainty caused by its failure to evidence its decision-making process around increasing Y’s school journey time beyond 45 minutes and for the misleading information it provided. 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.
• Pay Mr X £300 to recognise the uncertainty caused to him by the injustice identified above.
• Write to Mr X setting out plans for Y’s school transport from September 2025. If the journey time will be longer than 45 minutes, the Council should clearly set out its reasoning and how it weighed up competing priorities in the guidance before making its decision.
• Remind staff who make decisions on school transport applications of the importance of clearly setting out their reasons and what they have considered, particularly when deciding not to meet specific elements of the guidance.
29. Within six months of the date of this decision:
• Create a process for staff to follow when making decisions on school transport to aid decision making where guidance pulls in different directions and setting out what should be prioritised. The Council should also update its policy to reflect this.
30. The Council should provide us with evidence it has complied with the above actions.

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Decision

31. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman