Summary: Ms X complained the Council did not properly consider the religious grounds for her appeal against its decision not to provide school transport for her children. There was no fault in the Council’s actions.

The complaint

1. Ms X complained the Council did not properly consider the religious grounds for her appeal against its decision not to provide school transport for her children when she moved house. She also complained it incorrectly advised her the children would qualify for school transport when she was considering moving house. Ms X stated as a result, she was compelled to pay to maintain two properties. Ms X wanted the Council to provide transport for her children to attend their current school.

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The Ombudsman’s role and powers

2. 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)
3. 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 Ms X and the Council as well as relevant law, policy and guidance.
5. Ms 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 Legislation and Statutory Guidance

6. The Travel to School for Children of Compulsory School Age Statutory Guidance sets out councils 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. Section 509AD of the Education Act 1996 requires councils to have regard to any wish of a parent for their child to be educated at a school based on their religion or belief when exercising their school travel duties. The statutory guidance states this does not mean parents have a right to have travel arrangements made by the council (unless the child would be eligible for free travel to that school), but the council should not have a blanket policy and should consider whether it would be appropriate to exercise its discretionary power when requested to do so.
8. The statutory guidance sets out there are extended rights to support low-income families to exercise school choice. Under the extended rights, a child is eligible for free travel to school if they are aged 11 to 16 years, attend a school that is more than 2 but not more than 15 miles from their home that their parents have chosen on the grounds of their religion or belief if, having regard to that religion or belief, there is no suitable school nearer to their home.

Council’s school transport policy

9. The Council’s school transport policy states it will consider individual requests for school transport where there are compelling reasons to make an exception to the policy, or it is claimed it has not applied the policy correctly.
10. The policy also sets out its discretionary offer of school transport for children who were not yet of compulsory school age but attending school (rising five-year-olds) and for children and young people travelling to their nearest suitable school which was outside of the Council’s area.

Appeals

11. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. 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)

What happened

12. Ms X has children of primary school age, Y and Z. Y and Z attend School 1 which is a faith school. Ms X used to walk Y and Z to School 1 as they lived nearby.
13. Ms X was offered a new property in a different area to meet her housing needs by a housing provider. Ms X said before she accepted the new property she contacted the Council on the phone and asked if Y and Z would be eligible for school transport to School 1 from the new property as it was further away from School 1.
14. The Council’s call records show Ms X contacted the Council twice by phone. On the first occasion the Council told Ms X that Y and Z would be eligible for school transport under the extended rights set out in paragraph 8. Ms X contacted the Council again the next working day to double check the children’s eligibility before she accepted the housing offer. The Council advised Ms X to put in the application for school transport so it could properly consider it and stated she could use the appeal process if necessary. Ms X again asked about eligibility and the Council explained there were no extended rights on religious grounds for children of Y and Z’s age.
15. Ms X applied for school transport for Y and Z to School 1 using the new address.
16. The Council told Ms X that Y and Z were not eligible for school transport as they were not attending their nearest suitable school to their new home address.
17. Ms X appealed the Council’s decision. She said:
• Y and Z were eligible because they attended School 1 for religious reasons;
• they were a low-income family; and
• she had accepted the new property because the Council had told her the children would be eligible for school transport on religious grounds.
18. The Council responded to Ms X’s appeal and said there were over 30 schools closer to their new home, with the nearest less than two miles away. It said School 1 was over nine miles away and was not the qualifying school so Y and Z were not eligible for transport. The letter told Ms X the Council’s policy did not offer any discretionary transport arrangements on the basis of a parent’s religion. It said Y and Z were not eligible under the extended rights as they were both under 11 years old. It said it understood Ms X had moved away from School 1 but the children were not eligible for school transport.
19. Ms X appealed to stage two. She asked the Council to reconsider the children’s eligibility on religious grounds. She said none of the other schools were a school of their faith and attending them would compromise her children’s beliefs. She said she would have to apply for school transport anyway due to the safety of the walking route to the nearest school. She said she could not drive and had accepted the new property because the Council had told her the children would be eligible for school transport on religious grounds.
20. The Council considered Ms X’s appeal for school transport for Y and Z at an independent appeal panel consisting of the Chair, the Clerk and panel members. They unanimously decided to reject Ms X’s appeal. The record of the meeting showed the panel considered:
• the distances to the relevant schools;
• Y and Z’s ages and current attendance rate;
• their entitlement to free school meals;
• Ms X’s request for school transport on religious grounds and the evidence she provided;
• that school travel would need to be provided to the nearest suitable school due to the safety of the route;
• the Council’s policy in relation to discretionary transport arrangements; and
• the extended rights for school transport on religious grounds.
21. The Council wrote to Ms X and explained how it had considered her appeal. It said it considered Ms X’s stage one review request and outcome, and the information on her reason for appeal. It said it considered the distance to School 1, and the other schools in the area that Y and Z could attend. It said it had considered Ms X’s request to provide transport at School 1 based on religious grounds. It said the criteria for extended rights did not apply to children of primary school age. It said the panel did not find sufficient exceptional evidence to provide funded school travel for Y and Z to School 1. It did not uphold Ms X’s appeal.
22. Ms X remained dissatisfied and complained to us.

My findings

23. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, regardless of whether you disagree with the decision the organisation made.
24. Ms X contacted the Council to ask about her children’s eligibility from a new address. The Council initially gave incorrect information about their eligibility under the extended rights. The Council corrected that information within four days and before Ms X accepted the new property. The Council could not provide a definitive answer on Y and Z’s eligibility before Ms X had applied and provided her supporting information. There was no fault in the Council’s action.
25. When Ms X did apply the Council considered the application for school transport and subsequent appeals through the correct process. It declined the applications on the basis that the children were not attending the nearest suitable school and so therefore they were not eligible and there were no exceptional circumstances that meant it should provide school transport outside of the policy. It also considered the extended rights, which it correctly identified did not apply to Y and Z by virtue of their age. There was no fault in how the Council made its decision and so I cannot question the outcome.

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Decision

26. I find no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman