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

The complaint

1. Mr X complains about the Council’s decision to refuse his application for free home-to-school transport for his child. He says the Council failed to properly consider the evidence provided and the Council breached the Equality Act.
2. Mr X says this has disadvantaged his son, Y, and his access to a faith-based education.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Back to top

How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. Mr X applied for free home-to-school transport for his child, Y.
9. The Council has a duty to provide free home-to-school transport for legally eligible children. Y does not meet any of the grounds for free transport, so the Council declined his application.
10. Mr X appealed the decision, questioning the fairness of the decision and the interpretation of what is classed as a “suitable school”. Mr X said his other child previously received free home-to-school transport; therefore, it is unfair that his younger child does not receive it. He also said the Council did not consider Y’s protected religious characteristics when deciding what constitutes a “suitable school”. Mr X gave family reasons why he considers faith-based education is an essential aspect of Y’s upbringing.
11. A Council appeal panel considered the appeal and supporting evidence. It also considered whether the Council should use its discretion to provide free home-to-school transport for a pupil who was not automatically eligible.
12. The panel noted Y is attending the school of Mr X’s preference, which is not the nearest suitable school. Mr X argues that the nearest school is not suitable for Y’s religious upbringing. However, the law defines the nearest suitable school as one that is suitable for the child’s age, ability, aptitude and any special education needs they may have. It does not mean the most suitable school. There was no fault by the panel in following the law.
13. Although Mr X disagrees with how the panel made its decision, this is not evidence of fault. We do not act as an appeal body and can only consider if there was fault in the way the Council made the decision.
14. Mr X complains the Council indirectly discriminated against Y, resulting in a breach of the Equality Act. The Council had regard to information provided by Mr X, the law and relevant guidance. The Council allowed Mr X to appeal against the decision. The question of indirect discrimination is not legally straightforward, especially in this case where it also involves disagreement with government guidance, not just with the Council’s actions. It is reasonable to expect Mr X to take the matter to court because it is for the courts, not the Ombudsman, to decide on the lawfulness of the Council’s actions.

Back to top

Final decision

15. We will not investigate Mr X’s complaint because there is not enough evidence of fault by the Council. It is also reasonable to expect Mr X to take court action if he wants a ruling on the alleged indirect discrimination under the Equality Act.

Back to top

Investigator's decision on behalf of the Ombudsman