Summary: We will not investigate this complaint about the conduct of a school transport appeal hearing. There is not enough evidence of fault by the panel to warrant further investigation by us.

The complaint

1. Mr X said there was disability discrimination by the Council’s school transport appeal panel. He said it was overwhelming male, and lacked any ethnic or disability diversity. He said it did not appear to understand disabilities, and that members of the panel spoke to each other about personal matters and made jokes during the hearing.

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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 cannot make a finding of disability discrimination. That is a matter for a tribunal. However, we may find fault if we find the Council has failed to consider its duties under the Equality Act 2020.
4. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
5. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
6. The ‘protected characteristics’ referred to in the Act are:

• age,
• disability,
• gender reassignment,
• marriage and civil partnership,
• pregnancy and maternity,
• race,
• religion or belief,
• sex, and
• sexual orientation.

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How I considered this complaint

7. I considered information provided by the complainant and the Council, in the form of the appeal papers.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. The documents I have seen support what Mr X told the Council about his family’s circumstances. Their decision to move had not been voluntary and both parents and the child for whom they appealed for free school transport had disabilities. There was a good reason why Mr X wished to keep his child in the current school. There was a also a good reason why they did not wish the child to attend the nearest school with available places. The family was seeking an Education Health and Care (EHC) Plan that would name the child’s current school. He was right that, were the Council to issue an EHC Plan in the future, either of its own volition or as the result of an appeal to the Special Educational needs and Disability (SEND) Tribunal, the Council would have to provide free school transport.
10. But there is currently no EHC Plan naming the school. And a panel does not have to award free school transport on the basis that a child might in future had the school named on an EHC Plan. The panel correctly found there was no automatic free transport entitlement as the current school was not the nearest, and there was a school within a short distance of the family home with places available. The current school was also further than the maximum distance permitted where a parent has a range of options available due to low income. In short, the panel correctly found there was no automatic entitlement to free school transport.
11. However, a panel must also consider whether there were grounds in the case the parent makes for it to exercise discretion to depart from statutory guidance and its own policy to offer free transport. I note the panel made specific reference to the Equality Act 2010, making written comments on a standard form about how this might apply. It also accepted Mr X and his partner had disabilities, as did the child. It did not dispute the reasons for the family wishing the child to remain at the current school. It also decided to depart from policy by providing free transport for a period to the current school with the aim of giving the child more time to adjust to a move to the nearest school. While it is possible members of the panel may have spoken to each other during the hearing about an unrelated matter, or that someone may have made a joke, I have seen no evidence of this. More importantly, I have seen no evidence that the panel failed to give attention to the case before it, or failed to consider the case Mr X put forward. While it could have made a different decision, it was not fault for the panel to reach the decision it did. Without evidence of procedural fault, we have no authority to substitute our own decision.

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Final decision

12. We will not investigate Mr X’s complaint because there is not enough evidence of fault in the conduct of the panel to warrant further investigation.

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Investigator's decision on behalf of the Ombudsman