Summary: there was fault in the handling of Ms G’s appeal against Cornwall Council’s decision to refuse to provide home to school transport for her son. As this was the case we cannot know what the outcome of the appeal may have been had it been considered properly and the Council will therefore arrange a fresh appeal in order that it may be considered properly now.

The complaint

1. The complainant, whom I shall refer to as Ms G, says there is fault in the Council’s consideration of her appeal against the decision that her son was not eligible for home to school transport to his School. Specifically, she says the appeal failed to properly consider:
1. the accuracy of the measurements for the two identified walking routes;
2. whether it was correct to have used a point on the nearest road to start the distance measurement rather than the home address;
3. whether the two identified walking routes were suitable in terms of safety; and
4. the adequacy of the Pedestrian Route Assessment.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
3. If we are satisfied with a council’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)

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How I considered this complaint

4. I considered the written information Ms G provided with her complaint and discussed the complaint with her. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
5. Ms G and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

What should have happened

7. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances.
8. 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.
9. 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’.
10. ‘Qualifying schools’ include community, foundation or voluntary schools and community or foundation special schools.
11. ‘Eligible children’ are defined in Schedule 35B of the Act and include:
• children living outside ‘statutory walking distance’ from the school (three miles for children between eight and 16); and
• 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.
12. The route the Council has to consider is the ‘the shortest route along which a child, accompanied as necessary, may walk safely’. This may include footpaths and other pathways as long as they are safe. Councils may set their own police is which determine the start and end points for measurements and the method it uses to calculate the distance eg a GIS mapping system. Statutory guidance says that councils should take a range of risks into account when considering the issue of safety including, for example, the presence of canals, rivers, ditches as well as traffic speed and field of vision.
13. In deciding whether a child can reasonably be expected to walk to school, (whether the issue is safety or disability), the question is whether they can do so if accompanied, and whether it is reasonable to expect a parent to accompany them. There may be good reason, such as a parent’s disability, why they should not be expected to. The statutory guidance says “when considering whether a child’s parent can reasonably be expected to accompany the child on the journey to school a range of factors may need to be taken into account, such as the age of the child and whether one would ordinarily expect a child of that age to be accompanied.” “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so.”
14. The Council has a school transport policy which provides information on how it implements the above requirements. The Council’s policy states that it will not take account of issues of personal safety on walking routes as it is the parents’ responsibility to ensure that their child is accompanied by them when walking to and from school.
15. Paragraph 9.1 of the Council’s transport policy states that the measurement is calculated using a GIS mapping system from “…the main gate of a child’s home address (this is where the property meets the maintained highway – private driveways and access lanes are excluded) to the main gate of the school”.
16. The Council’s policy confirms there is an appeals process where transport has been refused and that this can be used to challenge eligibility, distance measurements, and safety of the route. The appeals process comprises two stages: stage 1 where a senior officer in the transport team reviews the original decision and provides a written decision in 20 working days; and stage 2 where a panel of elected councillors will consider written and verbal representations and provide a written decision.
17. The Council has a policy regarding its Pedestrian Route Assessments in relation to school walking routes. This states that assessment of walking route safety will be undertaken by the Council’s Road Safety Engineering Team. It goes on to state that assessments will take account of the safety of footpaths, bridleways and pathways as well as roads. It says that a site visit will always be undertaken and will include walking the length of the route taking photographs of particular points of interest along the way. Assessment criteria are listed as the presence of continuous adequate footways, traffic flow assessment, availability of “step-offs” (such as verges which allow pedestrians to off the road if necessary), sufficient visibility (of traffic for pedestrians), speed surveys, crossings, road accident records, road width and street lighting. The only criteria or guidance in relation to footpaths, bridleways or other paths is that they will be assessed to see whether they are “physically passable and suitable for a child to use (accompanied as necessary)”.
18. The Pedestrian Route Assessments do not provide a measurement of the length of the complete route under consideration.
19. Councils have discretion to provide transport for children who are not entitled to free transport. They may charge for such transport.

What happened

20. Ms G submitted an application for free home to school transport for her son to attend Q School in April 2019.
21. The Council refused the application in early May 2019 stating the distance from the home to school was 2.76 miles and was therefore under the statutory walking distance of 3 miles so there was no entitlement.
22. Ms G submitted an appeal against the decision. The grounds of her appeal were:
• neither she nor her husband were available to walk the route with X and the route was not safe because the route included several farm fields which have cattle in them and which are entered and exited using stiles and gates;
• the route involves walking a route which was routinely covered in manure and mud;
• in the dark of winter walking across unlit and uneven fields would be unsafe;
• she asked whether the council considered the route appropriate for an 11 year old to walk to and from school in all weathers.
23. In early June the Council issued its consideration of the appeal at stage 1 stating it provisionally upheld the original decision to refuse transport because:
• the home to school distance was less than three miles and therefore less than the statutory walking distance;
• the policy is clear that it is parents’ responsibility to accompany their child if necessary regardless of work or personal circumstances;
• an assessment of the walking route would be undertaken to assess the safety issues Ms G had raised and so no decision was reached on that part of the appeal. The officer said he would contact Ms G again with the outcome of that assessment once completed.
24. This assessment was completed promptly and the Council wrote to Ms G around a week later to confirm the Council was satisfied with the safety of the route.

The assessment of the walking route (Pedestrian Route Assessment)

25. The Council’s records state that a Council officer assessed the routes in May and June 2019. The officer later considered an additional route in September 2019.
26. In its comments to me the Council confirmed that there were three separate site visits to inform the assessments. The first took place from approximately 11am and 3pm and covered a particular section of the route. The Council says it undertook a further site visit after Ms G submitted her appeal at stage 1 of the appeals process to assess a separate, additional section of route. It says the entirety of both routes was walked.
27. The route assessments predominantly considered the part of the route that was on road and the reports of the assessment state that the scope of the route assessment was limited to consideration of “…the dangers faced by children either walking adjacent to traffic, or in crossing the road”. It goes on to say that in order to make this assessment it focused on the volume of traffic on the route, facilities available for pedestrians, pedestrian visibility on the route and factors affecting road crossing. I also note however that the assessor commented on the off-road sections of the route in the first assessment report commenting on the condition of the footpaths and the stiles on the route, one part of which was inaccessible at the time of that report. The assessor did not however conclude that this meant the route was unsuitable stating that, in drier weather, it would be passable.
28. The first assessment looked at two routes and decided that route 1 passed all tests but may be inaccessible in some weather and route 2 was acceptable and passed all tests.
29. The June assessment reconsidered part of the road on route 1, and determined the route was suitable. In relation to the footpaths on this route the assessor stated “At the time of the assessment all footpaths were easily accessible; all stiles, gates and footbridges were in good repair. It was muddy and uneven under foot in some places however, therefore, the use of appropriate footwear is advised”.
30. The September assessment looked at a further alternative route in light of Ms G’s concerns about cattle on the earlier route. I shall refer to this as route 3. The assessor decided that route 3 was suitable and an alternative to the route where cattle may be in fields.

Stage 2 appeal

31. On 9 September Ms G submitted an appeal for consideration at stage 2 of the appeal process again challenging the safety of the route and stating the concerns she raised in the first appeal had not been addressed. As with her appeal at stage 1, her case centred on the unsuitability of the footpaths used in the route as she considered they were unsafe. She described having walked the route and come across cattle, calves, bullocks, a horse and an electric fence over the course of the walk. She also described very muddy conditions.
32. As stated above, having received Ms G’s appeal form the Council identified another route and asked for a Pedestrian Route Assessment to be completed. This assessment was completed on 24 September. Ms G says the Council posted her a copy of this new assessment and other paperwork connected to the appeal. She has provided me with a copy of the Council’s covering letter which is dated 27 September. Ms G says she received this around 3 October as it was posted and not emailed to her. The Council says that in fact the pack was sent on 26 September and should have been received on 27 September. It says the letter was dated 27 September as offices thought it would not be ready for the collection on 26 September but in the event it was. I have no reason to believe that Ms G’s recollection of the date of delivery was wrong so assume that there may have been some delay in the delivery by the postal service. The covering letter told Ms G:
• the date and time of the appeal (9 October);
• she could bring a friend or relative with her to the appeal hearing or it could also be heard in her absence;
• advised she could provide new evidence if she wanted to but that this should be provided by 7 October; and
• who would be attending the hearing and the process the appeal would follow.
33. The Council provided its case to the panel (this was sent to Ms G with the letter of 27 September together with a copy of the new Pedestrian Route Assessment) stating that the stage 1 consideration had accepted the route was safe but that, in response to the concerns Ms G raised, it had identified an alternative walking route and had this had been assessed. The Council said the outcome of the assessment of this route (route 3) was that it was an acceptable alternative.
34. The appeal panel considered the appeal on 9 October 2019. The notes of the panel’s consideration demonstrate that X’s father (Mr P) attended the appeal as well as officers from the school transport team and the council members who were considering the appeal.
35. The notes of the appeal indicate that Mr P told the panel that the walking route was unsuitable incorporating 27 fields and cattle and also that the alternative route put forward (route 3) measured just over three miles (this would mean that the distance requirement for provision of transport would be met). Mr P went on to present his case referring to a number of concerns about the route which included unsuitability of the route in poor weather, the difficulty of managing stiles in the fields, the presence of cattle and horses, electric fences, particular danger of cattle when breeding. He said these hazards were true whether or not X was accompanied by a parent. He also said the alternative route offered was over three miles so not a suitable alternative. Mr P went on to answer a number of questions the panel had about the route and his concerns about it. In addition to his assertion that route 3 was over 3 miles Mr P also said that the speed of traffic on that route was too fast so was unsuitable for that reason also.
36. The Council officer at the hearing disputed that route 3 measured more than three miles. He checked this and returned to the panel with Mr P after they had left to allow the panel to deliberate at the end. On returning he confirmed the Council measured the distance as 2.52 miles.
37. The notes of the panel’s deliberations note that the panel members considered Mr P’s concerns about the cattle stating for example, that there was no danger of traffic or car horns scaring them and that landowners are aware of the repercussions of incidents involving pedestrians and cattle and that they would therefore be careful. There was further discussion about how pedestrians manage cattle if they are on the footpath. They considered whether Mr P was correct that route 3 was over 3 miles. They noted that the distance from the family home to the public highway was around a quarter of a mile. They asked Mr P and the officers back to discuss the measurement of route 3. The panel seems to have accepted that route 3 measured 2.52 miles as it was measured from the end of the private path where it met the highway rather than from the gate to the property. The panel seemed to accept that the policy was somewhat unclear on this point and suggested this lack of clarity should be sorted out.
38. The record of the panel’s final decision shows that all the panel members agreed the appeal should be rejected. In the notes of the reason for the decision the panel noted that in relation to Ms G’s concerns about cattle in the fields there was an alternative route (route 3) which was just over two and a half miles long. They also noted that there were “shelter points” on a stretch of private road and the PRA had addressed concerns around speed of traffic and considered they were reasonable. They also noted Ms G had not put forward any argument as to why X couldn’t walk to school and no evidence had been provided to demonstrate that either Ms G or Mr P could accompany X to school.
39. The panel’s consideration of the issues around accompaniment takes the form of ticking two boxes to confirm that Ms G had not provided evidence that X could not walk to school due to mobility problems and that she had not provided such evidence to confirm that either she or X's father had mobility problems or a disability which meant they could not walk with her.
40. A Council officer wrote to Ms G and Mr P shortly after the appeal hearing to reject the appeal. The officer confirmed the panel had:
• accepted the Council had correctly applied the transport policy to the application for transport;
• acknowledged the concerns about the cattle on the original route but also that there was an alternative route (route 3);
• accepted that route 3 measured around 2.5 miles from the point that the walk moved on to the public highway;
• considered Mr P and Ms G’s concerns about various other issues including traffic speed, styles, electric fences and cattle.
41. The officer said that the Council did not consider there were “exceptional circumstances which warrant deviating from the Council’s Home to School Policy” stating in particular that the panel was satisfied:
• the walking route assessment was properly conducted and that neither route was considered unsuitable;
• in relation to the route across fields with livestock in, the panel considered it was unreasonable to expect that all fields on a walking route would need to always be free of livestock before they could be considered suitable but that the panel was of the view that if X or his parents were aware of livestock in fields they could use route 3; and
• route 3 was considered suitable and was under 3 miles and the lane between the home address and the public highway was not taken into account when calculating this distance.

Is the Council at fault and did this cause injustice?

Stage 1 consideration

42. The Council’s consideration of the appeal at stage 1 did not specifically address Ms G’s concerns about the safety of the non-road part of the route identified by the Council. The assessment of the route was completed but only addressed the road elements of the route. I am not therefore persuaded that the stage1 consideration investigated Ms G’s concerns but she was then given the right to move to stage 2 of the process and she did so. I do not therefore consider that any fault in the consideration at stage 1 caused injustice as the panel then considered the matter at stage 2.

Stage 2 consideration

43. The panel was satisfied that the two identified walking routes were suitable in terms of safety having taken account of the Pedestrian Route Assessment. There are no grounds for me to consider the Pedestrian Route Assessment was inadequate as it fulfilled the criteria detailed in its policy and addressed both the safety of the road and whether the footpath was accessible. But Ms G’s concerns was not mainly about the accessibility of the footpaths or the maintenance of these but more about the animals in these fields and electric fencing. The Pedestrian Route Assessment did not address these points (except to say that X may wish to use an alternative route if livestock were in the fields) It was however for the panel to consider this. The notes of the appeal hearing provide a summary of the panel’s view on the points in Ms G’s case eg. that the alternative route did not have cattle on the route, measured 2.5 miles. The notes of the panel’s decision confirms the panel accepted that the most recently identified route was acceptable and, as summarised above, that no evidence was provided that either X or either of her parents had mobility or disability problems which would mean they could not accompany X to school. The letter following the appeal simply advised that X could use route 3 if he preferred not to walk through livestock. It seems clear that the panel’s decision was reached largely as a result of the revised route about which Ms X only received information shortly before the appeal hearing and which she believed measured over three miles. I consider the failure to provide Ms G with information about route 3 until it provided her with the appeal documents meant that she was unable to properly consider this route or even know the distance measurement of how this was calculated in order to prepare her verbal appeal case before the hearing took place. This amounts to fault. This fault resulted in injustice to Ms G as she was unable to fully address the Council’s case in the appeal hearing.
44. I recognise the panel considered the way in which the Council calculated the measurement and accepted that this accorded with the Council’s published policy on this but there is no way of knowing what grounds Ms G may have wanted to raise on this point as she was not given the opportunity to prepare a case on this.
45. There is no evidence the panel considered whether there was a case for transport to be provided under the Council’s broad discretion to do so. Given the panel apparently decided not to uphold the appeal it should have considered this.
46. I am not persuaded that the Council’s published statement on its approach to the accompaniment of children to school accords with the statutory guidance on this point: it suggests it does not allow for any discretion as provided for under the legislation and the statutory guidance and this would amount to fault.

Agreed action

47. The Council will arrange a fresh stage 2 appeal with a different panel as soon as possible to consider the appeal properly and to enable Ms G to adequately prepare her case with full information about the decision to refuse including the measurement of the walking routes identified. This appeal will be held within one month of my final decision on the complaint.
48. The Council will reconsider its policy in relation to its approach to the accompaniment of children to school to ensure it complies with the guidance. It will provide this office with evidence of this consideration within two months of the final decision on the complaint.
49. If a fresh appeal is upheld the Council will then consider reimbursing Ms G for the cost of the transport she provided to enable her son to attend school between the date of the appeal in 2019 and the date of the new appeal hearing.

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Final decision

50. There was fault in the handling of Ms G’s appeal against the decision to refuse to provide home to school transport for her son. As this was the case we cannot know what the outcome of the appeal may have been had it been considered properly and the Council will therefore arrange a fresh appeal in order that it may be considered properly now.

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Investigator's decision on behalf of the Ombudsman