Summary: We will not investigate Mr X’s complaint about the Council’s refusal to deal with his late appeal against its decision to reject school travel assistance for his child. This is because the Council has agreed to consider Mr X’s appeal and amend its policy so it can consider late appeals in certain circumstances. Therefore, an investigation by us would not be proportionate.

The complaint

1. Mr X complained about the Council’s refusal to consider his late appeal against its decision to reject his application for school travel assistance. He said his appeal was late because he did not see the Council’s decision email due to either not receiving it or because it was received in his junk email folder.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 information provided by Mr X and the Council.
5. I also considered the Ombudsman’s Assessment Code, the Council’s home-to-school travel assistance policy and the Government’s statutory guidance on travel to school.

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My assessment

6. The Council’s home-to-school travel assistance policy says that applicants must submit their stage 1 appeal within 20 working days of receiving the Council’s decision. However, the policy does not set out how the Council will consider late appeal requests.
7. The statutory guidance on travel to school says that it is for local authorities to determine how their appeals process will operate. The guidance recommends a two-stage appeal process with suggested timeframes for applicants to make appeal requests. These timeframes are recommended, not mandatory.
8. The Council is entitled to set its own policies, however those policies should not restrict the Council’s ability to use its discretion. A policy or practice that does not allow any scope to consider late appeals may seem like fettering discretion, which we would likely find fault with.
9. If we were to investigate this complaint, it is likely we would find the Council at fault causing Mr X injustice because:
• It seems likely that, on balance, Mr X was unaware the Council had refused his application before the appeal deadline passed.
• While we do not suggest the Council was at fault for Mr X not receiving this decision, by refusing his late appeal without considering his circumstances, the Council appears to have fettered its discretion. This is likely to amount to fault causing Mr X injustice by denying him access to the appeal process.
10. We therefore asked the Council to consider remedying the injustice by:
1. considering Mr X’s late appeal and putting it into the Council’s two-stage appeal procedure; and
2. reviewing its policies to allow the Council discretion to accept late appeals if it believes the circumstances warrant it.
11. It is for the Council, not us, to decide whether to uphold the appeal.

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Agreed action

12. To its credit, the Council has agreed to resolve the complaint, and to put things right, will complete:
• point a) within one month of today; and
• point b) within two months of today.

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Final decision

13. We have upheld this complaint because the Council has agreed to resolve the complaint early by providing a proportionate remedy for the injustice caused to Mr X and improving its service for others.

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Investigator's decision on behalf of the Ombudsman