Summary: We will not investigate this complaint about the Council’s decision not to provide free home to school transport. This is because there is not enough evidence of fault by the Council to warrant an investigation.

The complaint

1. The complainant, whom I shall refer to as Miss X, complained about the Council’s decision not to provide her son (Y) with free transport to school. Miss X says Y has Special Educational Needs (SEN) but does not have an Education, Health and Care Plan (EHC Plan). Miss X says the Council wrongly failed to consider Y for free transport under the SEN section of its policy.

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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))
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)

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How I considered this complaint

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

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What I found

The Council’s duties

6. Councils have a duty to provide free transport to school to ‘eligible’ children. The Government has produced statutory guidance (the Guidance) which sets out the law on school transport.
7. A child is eligible for free transport to school if they attend the nearest suitable school and one of the following applies:
• Live beyond the relevant statutory walking distance. This is two miles for children up to the age of eight, or three miles for children aged eight and over.
• Cannot walk to school in safety, accompanied as necessary, because of the nature of the route.
• Cannot reasonably be expected to walk to school because of their SEN, disability or mobility problem, even if they were accompanied by a parent. To be eligible under this criterion a child does not need to have an EHC Plan, attend a special school, or live beyond the statutory walking distance.
8. Extra help with transport is also available to children from low-income families under the ‘extended rights’ heading. If a child is in receipt of free school meals or their parent(s) receive the maximum level of Working Tax Credit, free transport is provided if a child is:
• aged over eight but under eleven and attends their nearest suitable school and it is more than two miles from home; or
• aged 11 to 16 and attends one of the three nearest suitable schools, provided it is between two and six miles from home; or
• aged 11 to 16 and attends a school that is more than two but not more than 15 miles from home, their parents have chosen on the grounds of religion or belief, and there is no suitable school nearer to home.
9. The Council has published a home to school transport policy it uses as the basis of assessing applications for free transport. The policy is in line with the Guidance.

What happened

10. Miss X’s son (Y) is in reception and attends School B. Miss X says Y has SEN but does not have an EHC Plan. Y’s sibling (Z) also attends School B and has an EHC Plan. Z receives free transport as his EHC Plan names School B.
11. Miss X asked the Council to provide Y with free transport to School B. The Council refused. It said there were several other schools closer to Miss X’s home. This meant there was no entitlement to free transport. Miss X appealed the Council’s decision. An appeal panel considered Miss X’s case at the final stage of the Council’s appeals process.
12. At the appeal, the Council explained its position and the reasons it had refused free transport. School B was the only school Miss X had applied for a place at, and the Council did not consider it to be the nearest suitable school. The Council’s representative explained there were nine closer schools to home. The Council had offered Miss X a travel bursary to take both children, but this did not mean the Council accepted Y was an eligible child.
13. Miss X then explained why she wanted Y to attend School B. Miss X said the school supported her application. Y did not have an EHC Plan but there was clear evidence of his complex needs. Miss X wanted both of her children to attend the same school and was currently funding a taxi to take Y to School B.
14. The panel considered all the information presented but decided there were not sufficient grounds to justify an exception to the Council’s policy. Miss X had chosen to send Y to School B, and it was not the nearest suitable school. The panel refused the appeal.

Assessment

15. 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 someone disagrees with the decision the organisation made.
16. In this case, Miss X contends the Council was at fault because it refused her request for transport using its mainstream transport policy. Miss X says the Council wrongly failed to consider her request for transport under its SEN policy. Miss X says there is no need for a child to have an EHC Plan to be considered eligible for transport because of their SEN.
17. Having considered all the information available, we will not start an investigation into this complaint.
18. Miss X is correct that a child does not have to have an EHC Plan to qualify for transport because of their SEN. The Guidance is clear on this as I write in paragraph 7. The Council’s policy correctly reflects what is in the Guidance.
19. But the key issue in this case is the school Miss X’s child attends. The Guidance and the Council’s policy make it clear that for a child to qualify for free transport they need to attend the nearest suitable school. For children without an EHC Plan, this will normally be the nearest school to home with spaces.
20. The Council originally refused Miss X’s request for transport because Y was not attending the nearest suitable school to home. I see no fault with this decision. It is in line with the law and the Council’s policy. If a child is not attending the nearest suitable school the other elements needed for a child to be considered ‘eligible’ are irrelevant. The test for eligibility fails before the other elements need to be considered.
21. Miss X then had a chance to appeal the Council’s decision using its published process. An independent panel considered Miss X’s final appeal. The Council and Miss X had the chance to present their cases, and the panel considered the information available.
22. The key issue in the panel’s decision making was that Y is not attending what the Council considers to be the nearest suitable school to home. I see no evidence of fault in the way this decision was reached on the simple facts. There are numerous schools closer to home.
23. Miss X had the chance to explain why she wants Y to attend School B and why she considers it to be the nearest suitable school – even if it may not be in geographical terms. The panel considered what she said but decided there were not sufficient grounds to make an exception. The panel’s letter explained its decision. The panel’s decision is one it was entitled to reach.
24. While I understand Miss X is disappointed with the Council’s decisions, there is not enough evidence of fault in the way they were reached for us to be able to question the decisions themselves. An investigation is not therefore appropriate.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman