The Ombudsman's final decision
Summary: Mr X complains the Council did not properly consider his application for free school transport. We find no fault with the Council for refusing his application.
The complaint
Mr X complains about the Council’s decision not to give his daughter free transport to school.
He says the Council failed to properly consider his application, and refused his right to a stage 2 appeal, as defined in the Council’s complaints procedure.
Mr X would like the application reconsidered and for his daughter to get free transport to school.
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 Mr X and discussed the complaint with him on the telephone.
I have considered information provided by the Council and the relevant law and guidance.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and Guidance 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 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.
Appeals The Government issued statutory guidance in 2014, ‘Home-to-school travel and transport statutory guidance’ (‘the guidance’) which recommends councils have a two-stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support.
This says council policies should set out a clear and transparent two stage process for parents who wish to challenge a decision about: the transport arrangements offered.
their child’s eligibility.
the distance measurement in relation to statutory walking distances; and the safety of the route.
The guidance says the process should involve: Stage 1: review by a senior officer.
Stage 2: review by an independent appeal panel.
It goes on to say previous guidance made clear local authorities should have in place and publish their appeals procedures but left it to the individual authority to decide how this should work in practice. The 2014 guidance recommends local authorities adopt the two-stage appeal process. The purpose is to ensure a consistent approach across all local authorities and to provide an independent second stage, for those cases not resolved at the first stage.
The Council’s Policy The Council’s Policy says it will consider support with home to school transport costs for children who attend the nearest qualifying school, and the distance between the home address and the school is over the statutory walking distance.
The nearest ‘qualifying’ school means the nearest school that provides education suitable to the age, ability and aptitude of the child and any special educational needs the child may have. The qualifying school will be the nearest school within the borough.
The nearest school to the home address is based on the shortest route without considering the safety of the route, using Ordnance Survey Mastermap to calculate the distance. When a child is attending the nearest suitable school, the Council consider the suitability of the walking route in deciding an application for free transport.
The Council policy is clear that choosing a school which is not the nearest suitable school may have implications for transport to that school.
If the Council refuse an application the parents may request an appeal by a senior officer. Within 20 working days the parents will receive in writing the School Places and Appeals Officers’ decision. Stage two is a review by an independent panel, but this will only go to the panel if there were mistakes in the decision process, or further evidence or new information to be considered.
What happened Mr X successfully applied for a secondary school place for School A for his daughter.
School A is over 4 miles from Mr X’s home address. School B is less than 3 miles away, using the school’s Ordnance Survey Mastermap.
Mr X applied for school transport to School A. The Council refused this as it did not consider School A was the nearest suitable school. Mr X appealed in June 2022. He did not agree that School B was the closest school as he calculated the shortest walking route using a different method. He said if you calculate the shortest route the child can walk safely, which is not necessarily the shortest distance by road, School A is nearer than School B.
Mr X calculated the shortest walking route to school A is 4.085 miles, whereas school B is 4.7 miles.
The Council’s stage one response set out that School B was closer to Mr X’s home. It said the Council measured home to school distances using the Ordnance Survey Mastermap only, and could not consider route safety if a student was not attending their nearest school. A student was not expected to walk to school if the route was over the statutory distance of 3 miles. However, they would only be 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 Mr X could apply for a concessionary seat on a school bus but these were not guaranteed. It advised Mr X of his right to go to stage two of the appeals process, if he can present any new information.
Mr X asked to go to stage two. He said the admissions policy for both school A and school B with regards to distance, is measured by the shortest walking route. The schools use the GIS system to measure this, which would mean school A is the nearest suitable school. He provided a map showing the safest shortest walking routes to both schools.
The Council’s final response said the nearest school to the home address is based on the shortest route without considering the safety of the route. The documents Mr X presented all related to School A. When a student is attending the nearest suitable school, the Council will then consider the suitability of the walking route in deciding an application for free transport. However, as she is not attending the nearest suitable school, the suitability of the route is not a material consideration and therefore there are no grounds for a further review.
Mr X then brought his complaint to us, as he said the Council had not shown consideration of the points he made.
Analysis The Council’s policy sets out it calculates which is the nearest suitable school by measuring the shortest available distance using Ordnance Survey Mastermap. 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 law and statutory guidance do not prescribe how distances should be measured for school transport, which is different from how school measures distance for admission purposes. Mr 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 the 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.
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 said in response to my enquiries that it always uses its Discretionary Powers to consider whether or not to provide transport. After giving the matter full consideration it came to the decision that discretion could not be applied to such a large extent, as this would be “tantamount to the council agreeing every application for free home to school transport where it can be demonstrated the walking route is unsuitable regardless of how close or distant it is to the applicant’s home address.”
The Council’s decision to refuse school transport was in line with its school transport policy which is published and 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.
Although I can understand Mr X’s frustration, the way the Council measures distance for the school transport policy is different to how the school’s measure distance for admissions.
The Ombudsman is not an appeal body. We cannot substitute our view for that of the Council. Our role is to consider whether there was fault in the way the Council reached its decision. The Council considered Mr X’s appeal at stage one, and said Mr X did not provide any supporting documentation as to why school A would better suit his daughter’s needs than the nearest school. School B was Mr X’s third choice. So the Council said there was no new information to take it to the appeal hearing panel.
In making its decision, the Council took account of the relevant guidance and its own policies. The Council followed the appropriate procedures and I cannot therefore criticise it.
Final decision
I find no fault in the way the Council applied its school transport policy.
Investigator's decision on behalf of the Ombudsman