Summary: Miss X complained the Council failed to properly apply its home-to-school transport policy and explain its decisions. Miss X also said the Council’s policy was inadequate. She said this meant the Council made an incorrect decision about her application for transport assistance. We have found the Council at fault for its deficient policy and for relying on incorrect information when it made its decision. This caused Miss X uncertainty when making her application. This also caused uncertainty about whether the appeal panel would have made a different decision. The Council has agreed to apologise and arrange a new stage two appeal panel to consider Miss X's appeal again. The Council has already amended its published home-to-school transport policy and we make no further recommendations in respect of this.

The complaint

1. Miss X complained the Council:
1. Failed to correctly apply its home to school transport policy; and
2. Failed to properly explain the decisions it made under its policy.
2. Miss X also complained the Council’s policy was inadequate, as it did not provide enough information to allow parents to make informed decisions about school transport.
3. Miss X said the Council’s faults meant it reached an incorrect decision about her child’s home-to-school transport arrangements. This caused avoidable frustration and distress.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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(1), as amended)

Back to top

How I considered this complaint

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

Back to top

Relevant legislation, guidance and policy

Transport arrangements for eligible children

10. 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)
11. The government has published statutory guidance (Travel to school for children of compulsory school age). Relative to this complaint, the guidance states:

“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 made clear in the local authority’s school travel policy how the route will be measured.” (Paragraph 39)

12. Further:

“…It should also be clear to parents how they can find out which is their nearest school for admissions purposes and whether this is also their nearest school for school travel purposes. Some authorities have a postcode checker on their website that parents can use for this purpose.” (Paragraph 43)

13. 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.

Transport appeals

14. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
15. 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)

Council’s transport policy

16. The Council published its home-to-school transport policy on its website. Relevant to this complaint, the 2024/25 policy stated the Council would provide transport or travel support, or make free travel arrangements for pupils meeting the following criteria:
• Pupils aged 8 to 16 years who are attending their nearest suitable school and who live more than 3 miles from that school.
17. The Council’s policy stated:

“Walking distances: Except where otherwise specifically stated, the distance between a child or young person’s home and school will be measured by the shortest available safe walking route.”

18. The policy also stated the Council would consider applications for school transport assistance due to exceptional circumstances on a case-by-case basis.

Back to top

What I found

Key events

19. Below is a summary of the relevant key events. It does not detail every exchange between parties. Where necessary, I have expanded on some of these events in the “analysis” section of this decision statement.
20. In June 2024, Miss X applied for home-to-school transport assistance for her child, referred to in this statement as Z, to attend School B. The journey from Miss X’s home to School B is beyond the statutory walking distances set out above. In the application, Miss X stated School B was the nearest school to their home address.
21. On 17 July 2024, the Council wrote to Miss X to confirm it had decided Z would not be eligible for transport assistance. The Council set out its reasons:
• It said, having assessed the application against its published eligibility criteria, it could not provide transport for Z. It said this was because Z was not attending their nearest suitable school, with School B being parental preference. The Council said there were nearer schools, with School C being suitable and a shorter walking distance.
• The Council said authorities did not have to provide transport when parents chose a school other than the nearest suitable school, even if the chosen school exceeded the statutory walking distance.
22. Miss X appealed against the Council's decision. On 30 July 2024, the Council wrote to Miss X with the outcome of the stage 1 appeal. The Council said it had declined the appeal and set out its reasons:
• The Council noted supporting information Miss X provided about Z’s autism diagnosis and that Z could not walk to school unattended due to her SEN needs. The Council said it would agree to provide transport assistance for pupils with SEN needs or a disability, where the pupil was attending their nearest suitable school as determined by the Council and where that school was named in their EHC Plan, if they had one.
• The Council said there was no professional evidence that School B was the only suitable school for Z.
• It set out the relevant criteria from its policy. It said School C was closer than School B when measured in walking miles. It said Miss X had the option of applying for paid-for transport assistance and provided details of how to do this.
• It also provided details of how to seek a second stage appeal, heard by an independent panel.
23. Miss X appealed the Council's decision. On 20 September 2024, the Council convened a panel to hear Miss X's appeal. The Council's subsequent decision letter said Miss X set out her case as follows:
• The supporting information Miss X provided with her initial appeal confirmed Z was autistic and had difficulties with communication and social interaction. Miss X said it would be unsafe for Z to walk to School B alone and Z would be unable to ask for help if they needed it.
• Miss X said their home was equidistant between School B and School C. Miss X provided the panel with details of the walking routes to both schools. Miss X said the Council's proposed walking route was unsafe and her proposed alternative route was safer. Miss X said if Z used Miss X’s proposed route, then School B would be closer.
• Miss X explained she had applied for three schools for Z. School B and School C had been her second and third choices respectively. Miss X said Z was not offered a place at their first-choice school. She said they had been offered a place at School B, but not at School C. Miss X said School B had good SEN provision. The Council later told the Ombudsman Z would have obtained a place at School C, but this was ranked lower than School B in Miss X’s application, so a place was not offered.
• Miss X said when making her application, she had confirmed she would pay for transport. However, she said this was because she was unclear what the Council would provide and she needed to submit the application before the deadline.
• Miss X said while she had read the Council's policy, it had been difficult to locate. She also said School B had been unaware of changes to the policy.
• Miss X understood the Council declined the application because Z would not attend the nearest school by walking distance, which the Council verified using Google Maps. While she understood, Miss X was critical of this approach.
• Miss X said they received no benefits and Z did not have an EHC Plan, though this was being progressed.
• The panel asked the Council whether Miss X’s proposed walking route was safe. The Council said it did not know and would need to examine the route.
24. On 23 September 2024, the Council wrote to Miss X to set out the appeal panel's decision:
• The panel said it had decided the Council had correctly interpreted its policy when it refused transport assistance to School B. It said this was because there was a footpath along the Council's designated walking route. It also said Z was not attending her nearest suitable school.
• The panel approved discretionary home-to-school transport, provided Z had an EHC Plan by 7 April 2025 naming School B. The panel said if the EHC Plan did not name School B, then the offer of discretionary transport assistance should be rescinded, because it would then be parental choice for Z to attend School B.
• The Council provided Miss X with the right to approach the Ombudsman.
25. In late 2024, the Council assessed the safety of both its proposed route and Miss X’s proposed route. It concluded that neither walking route was safe.
26. Miss X told the Ombudsman Z still did not have an EHC Plan in place.

Analysis

Did the Council act with fault?

Appeals procedure

27. Paragraphs 14 and 15 set out the timescales and relevant procedural matters for each stage of the appeal procedure. This includes who should consider and respond to the appeal at each stage, and what the responses should include.
28. The evidence available shows the Council adhered to the timescales and procedural requirements at both stages. I have not found the Council at fault for this.
29. The Council told me it had no record of any minutes taken at the appeal panel. The statutory guidance does not specifically require the Council to retain the minutes for the appeal panel hearing. It instead says the decision letter should set out a summary of the appeal, the decision and the reasons for the decision. Given the decision letter was compliant with these requirements, I have not found the Council at fault. However, it would be better if the Council did retain these minutes, as this would be more in keeping with the Ombudsman's Principles of Good Administrative Practice. While not a formal recommendation, the Council may wish to consider this in future.

Policy and application of policy

30. Miss X said the Council's policy confirmed it would assess the distance to the nearest suitable school by using the shortest available safe walking route. However, Miss X said the Council decided School B was not the nearest school by using a route no parent would consider safe, given the high speed limit, lack of footpaths and no safe crossing points. Miss X said in relying on an unsafe route to make its decision, the Council erred in applying its policy. She said her proposed route was safe to walk and, when using this route, School B was the closest suitable school.
31. On the 2024/25 policy itself, I consider it was deficient because:
• The policy did not explain how the Council assessed which school was the nearest suitable school when there was no safe walking route available.
• The policy did not explain how parents could clearly find out which specific school the Council considered nearest and suitable, so they could consider this in their applications.
32. I have found fault with the Council’s 2024/25 home-to-school transport assistance policy for these reasons.
33. On the Council’s decision-making, the Council said it considered School C the nearest suitable school. This was because it was a shorter walking distance. I note the Council’s initial decision and stage one appeal response did not include mention of the route being “safe”, despite this being the applicable criterion in its published policy. However, the appeal panel decision letter makes clear the Council considered its proposed route safe. The appeal panel relied on this in its decision, specifically stating the Council’s proposed route had a footpath, inferring it was safe and so the Council had correctly applied its policy.
34. However, the Council later confirmed that both its proposed route and Miss X’s proposed route were not safe to walk. This is a material change in the position considered by the appeal panel and a conclusion the Council could have reached sooner.
35. In response to my enquiries, the Council said its published policy was later amended by a guidance note. This stated where there was no safe walking route, the Council would use the shortest available walking route for its first assessment. However, I have seen no evidence showing when this guidance note was introduced and publicised. In any case, I understand no such amendment was in place when Miss X made her application, or when her appeals were heard. This amendment is not referred to in the responses to Miss X’s appeals at either stage of the appeals procedure.
36. I have therefore found the appeal panel relied on mistaken information when it reached its decision. I find this is fault.
37. I note the panel approved a discretionary offer of home-to-school transport, depending on an EHC Plan being in place. I would highlight that if an EHC Plan named School B, any home-to-school transport offer would not be discretionary, provided the other relevant criteria were met. As paragraph 13 sets out, the school named in an EHC Plan is the nearest qualifying school.

Did the Council’s faults cause an injustice?

38. For the reasons set out above, I have found the policy in place for the 2024/25 academic year was deficient. The Council has since acted to improve its policy. In its most recently published version, the Council has removed reference to “safe” walking routes, clarifying it uses the shortest available walking route to assess distances in all cases. It also added more detail about how it identifies the nearest suitable school. These updates address some of the issues identified here. The Council is likely to review and update the policy on an annual basis. I have not made any further recommendations on the policy itself.
39. The Council's 2024/25 policy was unclear on how the Council assessed distance when there was no safe walking route available, or how parents could establish this for themselves in that scenario. This meant Miss X had to interpret the policy with incomplete information and decide how to apply it to identify the safest route and nearest suitable school. This caused avoidable uncertainty to Miss X. This uncertainty is an injustice.
40. The Council later conceded its own proposed walking route was unsafe, the conclusion Miss X also reached. The Council recognising its proposed walking route was unsafe means the appeal panel relied on a mistaken assumption when it made its decision. This causes uncertainty about whether the appeal panel’s consideration and conclusions would have been different, had the Council correctly established the route was unsafe when it made its initial decision. This uncertainty is an injustice to Miss X. I have recommended the Council act to address this.

Back to top

Action

41. Within four weeks of the final decision being issued, the Council has agreed to:
1. Provide a written apology to Miss X for the faults and injustice identified in this statement. The Council should have regard to the Ombudsman’s guidance on “Making an effective apology", set out in our published Guidance on Remedies.
2. Arrange a new second-stage appeal panel to consider Miss X’s appeal again. The panel should comprise of new members and a new clerk, and consider Miss X’s appeal against the 2024/25 policy. It should account for the Council’s finding that there are no safe walking routes to Z’s school when it makes its decision. The Council should ensure the panel makes and communicates its decision in a manner compliant with the procedure set out in statutory guidance.
42. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

43. I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman