The Ombudsman's final decision
Summary: Ms X complained the Council failed to properly consider her appeal for home to school transport for her child. There was no fault in the way the Council applied its policy or considered the appeal.
The complaint
Ms X complains the Council failed to properly consider her appeal for school transport for her child to secondary school. As a result, Miss X says she will have to fund transport herself.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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)
How I considered this complaint
I have considered the information provided by Ms X and discussed the complaint with her on the telephone.
I have considered the appeal documents provided by the Council and the relevant law and guidance.
I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received before reaching a final decision.
What I found
The Relevant law Local authorities have a duty to provide free home to school transport for pupils of compulsory school age (5 to 16) in certain circumstances (s508B and Schedule 35B of the Education Act 1996).
Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be 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’ are defined in Schedule 35B of the Act as: children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and 16) 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 reasonably be expected to walk to school because the route is deemed unsafe to walk children entitled to free school meals, or whose parents are in receipt of their maximum level of working tax credit if: the nearest suitable school is beyond two miles (for children over eight and under 11); the school is between two and six miles (aged 11-16 and for transport to one of their three nearest qualifying schools); or the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief.
Local authorities also have discretion to provide transport for children who are not entitled to free transport.
Paragraph 22 of the Home to School Travel and Transport statutory guidance states ‘the measurement of the statutory walking distances is not necessarily the shortest distance by road. It is measured by the shortest route, along which a child, accompanied as necessary, may walk safely. As such the route measured may include footpaths, bridleways and other pathways as well as recognised roads’.
Paragraph 24 states ‘at the point when transport eligibility is considered, the prospect of being able to secure a place in an alternative (usually nearer) school must be a real one. For most cases this will be during the normal school admissions round when places are allocated. A smaller number of cases will need to be considered during the course of the school year e.g., as a result of families moving to a new area’.
For arrangements to be suitable, they must be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study. (Department of Education, 2014, Home to school travel and transport guidance). The guidance sets out that as a general guide, transport arrangements should not require a child to make several changes on public transport resulting in an unreasonably long journey time.
The Council’s Policy The Council’s policy sets out it will provide funded transport for children attending their nearest suitable school where the distance from home to school is over the statutory walking distance. It sets out that distances are measured by the shortest available walking route which includes public rights of way. The Council uses Ordnance Survey Mastermap Highway Network to measure all distances.
The policy sets out that catchment areas only apply in respect of school admission priorities and do not have any influence in respect of the legal requirements for provision of school transport.
The Council provides an on-line ‘nearest school checker’ to enable parents to find out their nearest suitable school for transport purposes by submitting their postcode.
In relation to school admissions, under the ‘Applying for secondary school place: step by step’, the Council’s website states: ‘we strongly recommend that you check which school is your nearest suitable school on our Nearest School Checker because this might not be your catchment area school.’
The Council offers a two-stage appeals process. Stage one involves a review by a senior officer. The stage two appeal is heard by the Transport Officer Panel or, if the parent wishes to make verbal representations, by the Education Transport Appeals Committee.
What happened The Council allocated Ms X’s child, Y, a place at their first choice secondary school, School A, in the normal admissions round. This is their catchment school. School A is over 3 miles from their home so Ms X applied for school transport.
The Council refused Ms X’s application as it said School A was not the nearest school to their home address for school transport purposes. Ms X appealed the decision. Ms X explained she was a single mother with other younger children. She felt the allocated school was the best for her child mentally and academically. She said Y had visited the school and felt comfortable there. She said Y had never visited the other schools and was familiar with the roads around School A and so would know where they were going.
The Council’s stage one response set out that School B was the nearest suitable school to Ms X’s home address so Y was not entitled to school transport. It said there were three other schools which were also nearer to Ms X’s home address than School A. It explained route safety was not relevant as Y was not attending the nearest school. It said information on eligibility for school transport was available on the Council’s website and the application process required parents to tick a box to confirm they understood this before submitting an application. It said it had also assessed Y’s entitlement under the category for children on free school meals but as School A was not one of the three nearest and was over 6 miles away, this did not apply.
It said there would have been a place at a nearer school had they applied for it. The email advised Ms X she had the right to go to stage two of the appeal process. It said ‘If you wish to make verbal representations your appeal will be heard by the Education Transport Appeal Committee. If you do not wish to make verbal representations it will be heard by the transport officer panel. If you do not advise you wish to make verbal representations it will automatically be heard by the Transport officer panel’.
Ms X asked to go to stage two of the appeals process. She did not ask to make verbal representations, so her appeal was considered by the Council’s Transport officer Panel. In her appeal Ms X said she considered School A was the most suitable school for Y. She asked whether the Council could make a contribution to the cost of transport.
The Council considered Ms X’s appeal at stage two. In the decision letter, the Council explained the safety of the route was not relevant as Y was not attending the nearest suitable school with an available place. It said a place would not have been available at School B. However the second nearest school, School C, would have had a place available. It said there were still places available at the school and funded school travel would have been provided. It rejected Ms X’s appeal as it could find no exceptional reason to provide school transport to the fifth nearest school. It confirmed there was a bus service available to School A or that Ms X should consider applying to School C if travel was going to be an issue to School A.
Ms X remained unhappy and complained to us. In her complaint Ms X said the Council had not considered the safety of the route to School C which would involve changing buses in a nearby village and would be a journey time of one hour and 40 minutes.
Findings
The law and statutory guidance do not prescribe how distances to schools over three miles away should be measured. The Council’s policy sets out that it calculates the nearest suitable school by measuring the shortest available walking route which includes public rights of way. In the absence of any law or guidance to the contrary I cannot criticise the Council’s policy.
We expect councils to explain their policies clearly to enable parents to make informed decisions when applying for schools about whether their child might be eligible for school transport. The Council’s website sets out how it calculates the nearest suitable school for school transport purposes. It also provides an online checker, so parents are aware of the nearest suitable school for transport purposes when they apply for a school place.
Councils must apply their transport policy when deciding whether a child is entitled to school transport. They have discretion to consider exceptional circumstances and must have a review of appeal process by which to do so.
The Council’s decision to refuse school transport was in line with its school transport policy which is published and clearly set out online. The Council was not at fault.
The Ombudsman is not an appeal body. We cannot substitute our view for that of the panel. Our role is to consider whether there was fault in the way the appeal panel reached its decision. The Council considered Ms X’s appeal at stages one and two of its appeal procedure.
The stage two decision letter shows the Panel considered Ms X’s arguments and the information she provided in reaching its decision. The Council also confirmed Ms X’s child could have had a place at School C if they applied and so would have been entitled to school transport. It considered Ms X’s circumstances but concluded there were no exceptional reasons to offer school transport. There is no evidence of fault in the way the Council reached its decision to refuse the appeal.
I have seen no evidence Ms X raised her concerns about the journey time to School C at her appeal. In any case, should her child move to School C, at that time we would expect the Council to consider how it would ensure her child got to the school given the Council’s duty set out to ensure the travel arrangements are suitable.
Final decision
I have completed my investigation as there is no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman