Summary: Mrs C complained the Council wrongly refused her daughter free school transport when she moved to a new school. The Council has since agreed to provide Mrs C’s daughter with free school transport. However, we found the Council at fault for failing to provide a school transport appeal process for Mrs C as set out in the Government’s statutory guidance. The Council agreed to apologise to Mrs C for the uncertainty this caused and review its school transport policy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complained the Council wrongly refused her daughter free school transport when she moved her to a new school.
2. Mrs C said, as a result, she has experienced distress and uncertainty as she cannot pick up her two daughters from different schools at the same time.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of my investigation, I have:
• considered Mrs C’s complaint and the Council’s responses;
• discussed the complaint with Mrs C; and
• considered the relevant statutory guidance and Council Policy.
6. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Home to School, travel and transport statutory guidance (the Guidance)

7. The guidance sets out when a local authority should provide free school transport to children. It also explains the process a Council is expected to follow if a parent wishes to challenge its decision. This includes:
• a stage one review by a senior officer within 20 days of receiving a parent’s review request; and
• a stage two appeal with an independent appeals panel within 40 days of a request.
8. The guidance says a parent can challenge a decision on the home to school travel application on the basis of entitlement, distance measurement, route safety and consideration of exceptional circumstances.
9. The guidance says the independent appeal panel should consider “written and verbal representations from both the parent and officers involved in the case”. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.
10. The guidance also says, “Previous guidance made clear that local authorities should have in place and publish their appeals procedures but left it to the individual authority to determine how this should operate in practice. We are now recommending that local authorities adopt the appeals process set out below… The intention is to ensure a consistent approach across all local authorities, and to provide a completely impartial second stage, for those cases that are not resolved at the first stage”.
11. The guidance says a local authority should follow the guidance unless it has a very good reason not to.

The Council’s Admissions Policy

12. The Council’s Primary and Secondary Admissions Guide for Parents says parents can express a preference for a school which is not the nearest suitable school to their home. However, this may have implications for free transport to that school.
13. The Policy defines a suitable school as a maintained school or academy which offers an efficient, full-time education suited to the age, ability, aptitude and any special educational needs of the child.

The Council’s School Transport Policy

14. The Council’s Home to Primary, Secondary and Special School Transport Policy says children will only qualify for free school transport to their nearest suitable school, which is beyond reasonable walking distance. It says this is:
• over two miles for children under the age of 8 years;
• over three miles for children between the age of 8-16 years.
15. The Policy also says a child with special educational needs (SEN) is eligible for free school transport to the nearest school which offers the provision suitable for the child. An Education, Health and Care Plan is not required to be considered for an enhanced mainstream provision.
16. The Council follows a two-stage review process when a parent wishes to challenge the Council’s decision about free school transport. The Policy says this includes:
• a stage one review which must be requested within 20 days of the Council’s decision; and
• a stage two appeal, which must be requested within 20 days of the Council’s review decision. A Senior Officer in the Council’s Education Service will consider the appeal.

What happened

17. Mrs C has two daughters who attend different schools. One of her daughter’s (Child B) has special educational needs (SEN). This includes speech and language difficulties.
18. Mrs C found Child B’s school was not suitable to meet her needs. So, she moved her to another school (School X) almost three miles from their home. She said this was because School X could support Child B with her educational needs.
19. Mrs C asked the Council to provide free school transport for Child B. She said this was needed because of the distance to the school and she could not take both her children to different schools at the same time.
20. In May 2021 the Council told Mrs C it will not provide free school transport for Child B from September 2021. It said this was because:
• Child B would be starting the next academic year in September 2021, which was after her 8th birthday. The shortest walking distance from her home to School X was less than the three-mile limit set out in its Policy;
• Mrs C was not receiving the maximum rate of Working Tax Credits. Child B therefore did not qualify under national extended transport rights;
• Child B was not receiving the mobility component of Disability Living Allowance or an enhanced rate of Personal Independence Payment. However, if Mrs C believed Child B could not walk the distance to School X because of medical conditions, Mrs C could provide evidence of this and ask the Council to consider it under exceptional circumstances.
21. The Council told Mrs C if she was not happy with its decision, she could ask for a review within 20 working days. It said a review would be considered by a Senior Officer. It also gave Mrs C details of available public transport.
22. A few days later, Mrs C asked the Council to review its decision. She said:
• Child B was finally getting the support she needed in school. However, the Council’s decision to refuse her free school transport meant she may have to move her back to her previous school;
• the Council had not told her free school transport would stop when the decision to move schools were made. However, the move to School X was necessary because her previous school could not support her needs;
• the distance to School X was too far for Child B to walk each day;
• she could not pick up both her daughters at the same time in different schools and neither of her children are allowed to walk home by themselves; and
• she could not afford to take public transport to bring her daughters to and from school.
23. A Senior Council Officer reviewed the Council’s decision and found it was correct and it had followed its Policy. Child B was therefore not entitled to free school transport. She also said Child B was under no obligation to change schools. It was Mrs C’s decision to apply to change Child B’s school. In this process she had confirmed she understood the Primary and Secondary Admissions Guide for Parents, which explained Child B may not be entitled to free school transport if the nearest suitable school was not selected.
24. Mrs C remained unhappy with the Council’s decision. She asked her Local MP for help and complained to the Ombudsman.
25. During my investigation, Mrs C has told us the Council has agreed to provide free school transport for Child B to School X from September 2021.

Analysis

26. The Council has agreed to provide Child B with free school transport. Mrs C’s concerns have therefore been resolved. This means Child B did not have to return to her previous school or walk to her new school before this was resolved.

The Council’s school transport review process

27. Mrs C said she experienced distress and uncertainty following the Council’s refusal to provide Child B with free school transport. I have investigated how the Council handled the matter prior to its change in view to provide Child B with free school transport.
28. It is clear the Council’s Home to Primary, Secondary and Special School Transport Policy is not following the Governments statutory guidance. This is because the review process does not allow parents the opportunity to make written and verbal representations at a hearing with an independent appeals panel.
29. The guidance says parents should be able to present their case and there are good reasons for this including: transparency; natural justice and the opportunity for all parties to ask questions.
30. The status of the guidance is a material consideration. It is statutory guidance, not simply an explanatory document or informal advice. So, it has a significant status and councils have a duty to have regard to it when formulating their policy. It is open to councils to depart from statutory guidance, but the courts have said they can do so only if they have cogent reasons for doing so.
31. We would expect the Council to follow statutory guidance unless it has good reason not to. Any departure from the guidance should give parents at least the same opportunities to present their case.

Injustice

32. I am satisfied Mrs C had some uncertainty due to how the Council handled its transport review process. However, as it has since agreed to provide Child B with free School transport, I am satisfied an apology to Mrs C is enough to remedy the uncertainty this caused.

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Agreed action

33. To remedy the injustice the Council caused to Mrs C, the Council should, within one month of the final decision:
1. apologise in writing to Mrs C to acknowledge the uncertainty its school transport appeals process caused her.
34. Within three months of the final decision the Council should also:
1.  
2. review its Home to Primary, Secondary and Special School Transport Policy to ensure it provides an appeal process as set out in the Government’s Home to School, travel and transport statutory guidance.

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Final decision

35. I have completed my investigation with a finding of fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman