The Ombudsman's final decision
Summary: Mrs X complained the Council unreasonably refused school transport for her daughter, C. We find the Council was at fault for failing to review all the relevant factors in considering Mrs X’s application. This would not have impacted the outcome of the Council’s decision and as such no injustice was caused to Mrs X or C. We recommended a service improvement to prevent this fault reoccurring.
The complaint
Mrs X complained the Council has unreasonably refused school transport for her daughter, C. She says this has resulted in her having to pay for school transport.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 Mrs X and discussed the complaint with her.
The Council’s comments on the complaint and the supporting information it provided; and Relevant law and guidance.
Mrs X and the Council have had an opportunity to comment on my draft decision. I have consider their comments before making a final decision.
What I found
The law and guidance 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) 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.
The Council’s policy says: ‘The nearest qualifying school for your child will usually be the one: which is the closest to your home (measured by the shortest walking or road route, as accepted by the Council). For those children living close to the Lancashire boundary the nearest school may be situated in another local authority area where there is a place available or where a place could have been offered at the allocation stage of school admissions had it been requested.’
It continues, ’Once the Council has established the nearest school, we will measure the distance to that school using the shortest suitable walking route’ What happened Mrs X and C live in a village between two primary schools, school A and school B. In September 2017 C started at school A which was Mrs X’s first choice of primary school. School B was her third preference.
Mrs X applied for home to school transport for C in 2017 which was not approved by the Council. Mrs X appealed but this was unsuccessful.
In May 2021 Mrs X applied to the Council for home to school transport for C for September.
The Council assessed Mrs X’s application in late May 2021. It wrote to her saying it could not approve her application because school A was not the nearest school.
Mrs X appealed the decision on six grounds. These were that she did not agree with the distances measured, that online tools provided different information, that in 2017 she had determined the nearest school using online tools. Also, that school B was oversubscribed for Cs year group, there were no safe routes to walk, and she was finding transport difficult with work commitments.
The Council considered Mrs X’s appeal in July 2021 and issued its decision on 17 September 2021. Its letter stated it had calculated the distances to the two closest primary schools from her address. It noted that school A was 2.80 miles away and school B was 2.59 miles away. It rejected the application on the basis that C was not attending her nearest school, school B.
The Council sent out a corrected version of the letter on 7 October 2021 which confirmed it had considered Mrs X’s evidence. It again concluded that C was not attending her nearest school and therefore did not qualify for transport.
Findings
The Council’s policy is in line with government guidance. The Council has provided me with a copy of the calculations it carried out to determine the distance between Mrs X’s home and each school. This shows the distance to school A is 2.8 miles and school B is 2.59 miles. Although Mrs X disagrees with these calculations the Council has used an appropriate tool to calculate these. It is not at fault for deciding that C does not attend her nearest school.
The government guidance, though, states transport should be provided to the child’s relevant qualifying school which is nearest with places available. The Council’s policy also states the nearest qualifying school is one that has or would have had places available during the normal admissions round. I recognise Mrs X’s application was not tied to the normal admissions round as C was already at the school. However, while the statutory guidance is silent on this point, we would expect the Council to consider whether the nearest school met these criteria in all applications.
The Council’s decision notes show it only considered the nearest school based on the shortest walking or road route. There is no reference to whether school B was the nearest suitable school. The letter of 17 October shows the Council considered there were no current places at the school in view of Mrs X’s comments in the appeal. But there is no evidence it looked back and considered whether C could have ever been granted a place at school B in the normal admissions round in 2017.
The Council cannot say school B is the nearest suitable school without considering both distances and suitability. It is fault it did not consider this when reaching its decision.
The Council has provided me with evidence that places at school B were given to children of a lower priority ranking than C in 2017. If Mrs X had made school B her first preference C would have got a place. Therefore, the choice to attend school A is a matter of parental preference. If the appeal panel had considered this is unlikely its decision not to offer school transport for C would have changed. Therefore, I cannot say Mrs X and C have been caused an injustice as a result of the Council’s fault.
Agreed action
Within four weeks of this decision, the Council has agreed to: Remind officers who assess transport eligibility of the requirement to consider the availability of school places at the point that places were allocated for the school application in question when determining the nearest suitable school.
Final decision
I have completed my investigation. I found fault which has not led to a personal injustice. I have recommended action to prevent recurrence of the fault.
Investigator's decision on behalf of the Ombudsman