Summary: Mrs X complains about the Council’s handling and decision on her request for free school transport. She says its refusal continues to cause hardship and her family has suffered distress and uncertainty. The Ombudsman finds no fault in the Council’s decision making process. But the Ombudsman finds the Council at fault for delay and recommends a remedy for Mrs X’s distress and action to prevent recurrence.

The complaint

1. Mrs X complains the Council’s school transport policy is unfair and she is unhappy with its decision on her appeal. She is also unhappy with its delays in the process. Mrs X says it will cause her family financial hardship to pay the school transport costs or else disrupt their children’s education if they move schools. She says they have also suffered distress and uncertainty.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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.
5. 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

6. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council. I gave Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

School transport statutory guidance

7. The Department for Education publishes guidance on school transport that councils should follow.
8. Councils must provide free school transport to the nearest school with places available for:
• 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 in certain cases.
9. If a parent chooses a school beyond the relevant walking distance when there was a space at a school the council deems suitable nearer home, the child will not be eligible for free transport to the chosen school. But there must have been a realistic prospect of getting a place at the nearer school at the time places were allocated.
10. Good practice suggests that the introduction of any changes to a school transport policy should be phased-in so that children who start under one set of transport arrangements continue to benefit from them until they either conclude their education at that school or choose to move to another school. Parents make school choices based on, among other things, the home to school transport arrangements for a particular school, and any changes might impact adversely on individual family budgets.
11. It is up to each council how they decide on the “nearest” suitable school. A council may use different methods to measure the safe walking route and to decide the nearest suitable school. A council may decide the nearest suitable school in the same way it does for admission purposes (for example by straight line or shortest road route).

Council policy

12. In June 2018 the Council published its new school transport policy for 2019 to 2021.
13. This sets out different arrangements for those who already attend school and receive free transport (i.e. a phased in approach). Under the new arrangements, a child would remain eligible for transport to their current school if they received free transport in July 2019, are aged 5-16 and continue to live at their current home address. The one exception to this is children who turn eight and who live between two and three miles from their current school.
14. The policy says parents can find out their nearest suitable school for transport purposes by following a weblink.
15. When using the weblink and Mrs X’s postcode the following results appear:
• 1st nearest, School A (Under 2 miles)
• 2nd nearest, School B (Under 2 miles)
• 3rd nearest, School C (2 to 3 miles)
16. Of relevance to this case, the Council will provide free transport to children attending their nearest school (i.e. School A) if this is outside the statutory walking distance or, less than the statutory walking distance but it is unsafe for the child to walk to school.
17. The Council’s policy makes clear it should not fetter its discretion and so it will consider individual requests for home to school transport, where:
• There are compelling reasons to justify making an exception to the policy and/or
• It is claimed the Council has not applied its policy correctly.
18. It adds that agreement to provide help with travel will be considered carefully and only if there is a significant reason why the child could not otherwise get to school. For example, another child in the family attending a different school or conflicts with family working patterns would not normally be considered as a “significant reason”.
19. Parents whose children do not qualify for free transport can apply for a spare seat, at a cost of £750 per year.
20. Parents can challenge a transport decision for any of the following reasons:
• the transport arrangements offered;
• the child’s eligibility;
• dispute over the distance measurement between home and school in relation to statutory walking distances;
• the shortest available walking route is unsafe for a child, accompanied as necessary;
• there are other exceptional circumstances which mean the parent cannot arrange for their child to access school;
• the Council did not apply its policy correctly.
21. For transport purposes the nearest suitable school is identified by considering whether the child would have qualified for a place at the school, regardless of whether it was named on the Common Admissions Form.

School transport application process

22. The Council’s website sets out the process for applying for school transport. Parents can apply after an offer of school places in April. The Council will let them know if they are successful or not in May. Parents can ask for a stage 1 review of the outcome, which the Council will address in 20 working days. If unsuccessful parents can ask for a stage 2 appeal, with a response in 45 working days.

What happened

23. Mrs X’s eldest child attends primary school, School Z. They received free school transport under the Council’s previous policy and continue to receive free transport.
24. The Council published its new school transport policy in June 2018. Later that same year Mrs X applied for her other child, Y, to attend School Z.
25. In April 2019 Y secured a place at School Z. Mrs X says she immediately applied for free school transport.
26. Mrs X says the Council responded on 13 August 2019. It refused free transport because School Z was not Y’s nearest school. It said School A was Y’s nearest school.
27. Mrs X sent paperwork seeking a review of the Council’s decision on the same day. She said the Council had made a mistake. School Z was the nearest school, not School A. And it was unsafe to walk to School Z.
28. Mrs X says she chased the Council for a response and on 17 September was told to submit her documents again. In the meantime Y had started at School Z. Mrs X says she was unable to take Y to school and relied on other parents helping out.
29. Mrs X submitted her documents again on 17 September.
30. The Council provided its stage 1 response on 15 October. It apologised and explained Mrs X’s original appeal of 13 August was not received due to an administrative error. It explained it calculated the distance to each school using roads, paths and public rights of way. School A was the closest school at 1.86 miles whereas School Z was 2.82 miles away. Y was not entitled to free transport because Y did not attend the nearest suitable school. However, it could offer a spare seat under its spare seat policy. And, because of its delay in processing the appeal, it would provide a temporary bus pass for Y until the stage 2 appeal was heard.
31. Mrs X continued to stage 2 and provided further supporting documents including:
• Comments from a councillor. In brief:
1. The walking route to School A is unsafe;
2. It is not practical to take children to two different schools;
3. The cost of the spare seat to School Z is too expensive;
4. School A is over 2 miles away; it would make more sense to provide a free bus pass for Y to travel to School Z than pay the costs of dedicated transport to School A.
• Correspondence from the parish council and a police officer that the walking route to School A is unsafe due to the risk of anti-social behaviour.
• A further submission from the parish council that:
1. The walking route to all closer schools were unsafe;
2. It was logistically impossible to take the children to different schools;
3. School A is more than 2 miles away so the Council would have to pay for transport;
4. The rigid application of the new policy is causing problems for families;
5. The bus to School Z has spare seats;
6. Mrs X already has a child at School Z and so has been caught out by the new policy;
7. The Council delayed in handling the appeal.
• A letter from an MP that the policy was unfair in general. In Mrs X’s case, there was no consideration of siblings where one already attended a school and received free transport.
32. The Council’s appeal panel heard the appeal on 28 November 2019. Having reviewed the minutes from the hearing I note:
• School Z was the 11th nearest school to Mrs X’s home.
• As Y did not attended the nearest school, Y was not eligible for free transport.
• Mrs X and her supporters explained it was not practicable for her two children to attend two different schools. Mrs X took her older child to the bus stop for School Z and could not at the same time take Y to School A. Her husband was unable to help due to work. The new policy did not provide a phased in approach for siblings. The Council would have to pay for transport to any of the closer schools as they had unsafe walking routes.
• The panel considered Mrs X’s submissions and all the information provided.
• They considered if it was reasonable to expect parents to take their children to two different schools, bearing in mind the policy had only changed one year prior.
• They considered exceptional circumstances. In this case one parent unable to help with transport, and one child already attending School Z with free transport.
• They noted consultation on the new policy started in 2017 and parents knew of the policy when they applied for schools.
• They debated whether the policy was fair; but noted they could not now change the policy.
• They noted the cost of a spare seat but also that Mrs X was not on a low income.
• The majority decided not to uphold the appeal.
33. The Council sent Mrs X the decision outcome on 9 December 2019. It confirmed the appeal panel had considered all the information provided. It explained how it established the nearest schools. School Z was not the nearest school and so the safety of the walking route was not relevant. The panel understood the families’ work commitments but this was not an exceptional reason to provide free transport. It was possible to purchase a spare seat on the bus; the panel had not seen any evidence Mrs X was on a low income. Parents were first made aware of the new policy in 2017. The panel did not consider the case so exceptional that the Council should provide free transport.
34. Mrs X then complained to the Ombudsman. She explained she considers the Council’s new policy is unfair as it does not make any allowance for those families who already had a child receiving free transport under the old policy.
35. Mrs X also disputes the appeal outcome because the Council has not considered whether School A is the nearest school when using a safe walking route. Rather she considers the suggested route is unsafe and has not been assessed as safe.
36. When I spoke to Mrs X she said Y still had use of a free bus pass for School Z. She explained there had recently been an external review of the Council’s policy, concluding the Council should show flexibility when considering specific cases. However, the Council still showed no flexibility in her case.

Findings

37. The Council is entitled to change its transport policy but it is good practice for it to consider phased in arrangements for those children already attending a school and receiving free transport. In view of the Council’s policy, I note it does have phased in arrangements for those already receiving free transport.
38. I acknowledge Mrs X considers the Council’s policy unfair as it does not assist siblings. However, it is for the Council to consider what phase in arrangements to make available. The Council’s policy appears to be in line with the statutory guidance and therefore I cannot find fault.
39. It is up to each council how it measures the “nearest” suitable school. Once the council decides the nearest suitable school it must consider if the child should get free transport given the statutory walking distance and the safety of the walking route. School Z is not the nearest suitable school and so the appeal panel did not need to consider the safety of the walking route to School Z.
40. Y did not attend School A and so the appeal panel did not need to consider the safety of the walking route to School A. If Y attended School A in future the Council would need to consider if Y was entitled to free transport given the safety of the walking route. But this was not relevant to the appeal for free transport to School Z.
41. I cannot say the Council’s decision is right or wrong simply because Mrs X disagrees with it. I must consider whether there was any fault in the way the decision was reached. Having reviewed all the information, I am satisfied the appeal panel considered Mrs X’s appeal in line with relevant law and policy. The appeal panel took all relevant matters into account in reaching its decision. It found Y was not entitled to free transport under the policy and there were no exceptional reasons to justify providing free transport in this case. I do not find any fault in how the panel reached this decision.
42. It is correct to say the Council should not apply any policy rigidly. However, the Council’s policy already allows consideration of exceptional circumstances. The appeal panel decided Mrs X’s cases was not so exceptional that the Council should provide free transport. As explained above, I find no fault in the decision making process.
43. The Council significantly delayed responding to Mrs X’s request for free transport and it did not process her initial request for a stage 1 review, causing further delay. This amounts to fault. Mrs X suffered avoidable distress and uncertainty as a result. I will make a recommendation to address the personal injustice and to prevent recurrence.

Agreed action

44. To remedy the injustice above I recommend the Council carry out the following actions within one month of the date of my decision:
• Pay Mrs X £100 for distress and uncertainty;
• Identify the reason for the delay in responding to the request for school transport, take steps to prevent recurrence and notify the Ombudsman of the steps taken.
45. The Council has accepted my recommendations. It explains the delay with the application and review/appeals process was due to a number of technical and other factors relating to the implementation of the new travel policy for September 2019.  The Council says it has addressed these issues through an independent review of the processes involved with the policy change.

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Final decision

46. I find no fault in the Council’s decision on school transport but I find fault in its administration of the review/appeals process. The Council has accepted my recommendations and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman