The Ombudsman's final decision
Summary: Mrs X complained the Council failed to properly consider her appeal for school transport for her child. The Council was not at fault.
The complaint
Mrs X complains the Council failed to properly consider her appeal for school transport for her child. In particular Mrs X disagrees with the way the Council calculated the home to school distance. As a result she will have to transport her child to school 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 Mrs X and discussed the complaint with her on the telephone.
I have considered information provided by the Council and the relevant law and guidance.
I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
What I found
The relevant law and guidance 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 and include: 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 [my emphasis] walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk.
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’.
The Council’s Policy In 2018 the Council consulted on and changed its school transport policy to no longer have transport priority areas but to calculate school transport eligibility based on the nearest suitable school. It carried out significant consultation. 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 school transport 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 Mrs X successfully applied for a secondary school place at School A for her child. When she applied Mrs X was aware the Council did not consider School A was the nearest school to her home address. Its on-line school checker shows School B is the closest school based on the shortest available walking route which includes public rights of way. However, School A is the closest by road. Both schools are over 3 miles from their home address.
Mrs X applied for school transport to School A. The Council refused this as its policy did not consider School A was the closest school. Mrs X appealed in March 2022. Mrs X did not agree that School B was the closest school. Mrs X considered using footpaths was unfair when both schools were over three miles away. She said there was not a walking route that could reasonably or safely be used to travel to school. Mrs X also said using walking routes did not align with the sustainable transport policy as the road route the bus would use to School B was longer than the road route to School A.
The Council’s stage one response set out that School B was closer to Mrs X’s home. It said the Council measured home to school distances by shortest available walking route, which included rights of way. It said it was unable to consider route safety if a student was not attending their nearest school. It said a student was not expected to walk to school if the route was over the statutory distance of 3 miles. However, a student was only eligible for funded school travel if they attended the nearest available school.
It explained information on eligibility for funded school travel was available via the Council’s website and parents had to tick to say they understood this before submitting a school application. It said Mrs X could apply for a ‘spare seat’ on a school bus but these were not guaranteed. It advised Mrs X of her right to go to stage two of the appeals process.
Mrs X asked to go to stage two. Mrs X set out she did not think it was fair to use walking routes to determine distance to the nearest school. She said the policy led to children travelling further to school than necessary because the school the Council considered the nearest school was actually further away by road. She provided photographs to illustrate the walking route to School B used by the Council in its calculations was not a suitable walking route.
Miss X also explained her child was very shy, had attended a small playgroup and then moved on to its primary school with her friends. The entire class was due to go to School A. Attending a school where she did not know anyone and travelling a long way alone on a bus would be very upsetting for her.
Mrs X said she had been seeking to have the routes amended since before she applied to School A. She did not consider the policy was fair, sensible or sustainable.
Mrs X provided evidence to show the environmental impact of a school bus driving to a school further away on carbon emission levels and of the impact of her having to make a separate car journey.
The Education Transport Appeals Committee heard Mrs X’s stage two appeal in April 2022. Mrs X attended the hearing in person, along with her local councillor. Council officers were also present to answer any queries and to advise the Committee on policy matters. The minutes show Mrs X was given the opportunity to present her case and her councillor supported her with this. The Committee also asked questions of Mrs X regarding her case.
The minutes record the Committee’s decision making. The Committee considered route safety was not relevant as the school was over three miles away and pupils were not expected to walk over three miles. It noted Mrs X’s child was entitled to travel to the nearest school. It noted the admissions process required parents to check if their child would be eligible for funded school transport. It noted the reasons why Mrs X’s child wanted to go to School A but as this was parental choice it had no obligation to fund travel.
The Committee noted Mrs X’s child’s shyness but did not consider her circumstances were significant enough to justify granting school transport. It also discussed the environmental implications but decide the impact could not override the whole county criteria for school transport eligibility. It decided unanimously not to uphold the appeal.
The Council wrote to Mrs X with the decision letter in early May 2022, setting out its reasoning.
Findings
The Council’s policy sets out that it calculates which is the nearest suitable school by measuring the shortest available walking route which includes public rights of way. It is a way of calculating the route to the nearest school, it is not an expectation the child would in fact walk the route. The Council consulted on its policy in 2018 before setting this as the standard for calculating distance. The law and statutory guidance do not prescribe how distances over three miles should be measured. Mrs X does not agree with the Council’s policy but in the absence of any law or guidance to the contrary I cannot criticise it.
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 or 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 safety of the route is only relevant when children live within the statutory walking distance from their nearest school.
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 Mrs X’s appeal at stages one and two of its appeals procedure. It decided the Council had properly applied its policy and there were no exceptional reasons to award school transport.
The minutes of the stage two appeal show the Committee considered Mrs X’s arguments and the information she provided in reaching its decision. It is for the Committee to decide how much weight to give to the evidence Mrs X provided. There is no evidence of fault in the way the Committee reached its decision to refuse Mrs X’s appeal.
Final decision
I have completed my investigation as I have found no evidence of fault by the Council.
Investigator's decision on behalf of the Ombudsman