Summary: Mrs B says the Council unreasonably refused her request for alternative transport for her daughter to get to school. The Council’s process for considering school transport appeals does not comply with Government guidance. A change to the Council’s school transport policy and arrangement for a further appeal for Mrs B is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council unreasonably refused her request for alternative transport for her daughter to get to school. Mrs B says as a result she has had to go to further expense to take her daughter to school every day and she is at risk of becoming a non-attender if she cannot take her to school.

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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. 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. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
5. Mrs B 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

What should have happened

6. 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.
7. The guidance 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.
8. The guidance says the process should involve:
• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.
9. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case.
10. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.
11. The guidance says previous guidance made clear 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. The new guidance recommends local authorities adopt the two stage appeal process. 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.
12. The Council’s school transport policy provides for a two stage review process. At the first stage the Council’s School Places and Appeals Officer will make a decision on the case. At the second stage the request will be considered by senior officers within the education service.

What happened

13. Mrs B’s daughter has an education, health and care plan which names the special school she attends. The Council provides free school transport to that school which Mrs B’s daughter used until 2021. That school transport involved a taxi to the school which various children took. Following a safeguarding incident Mrs B contacted the Council to ask it to make alternative transport arrangements for her daughter. Mrs B said this was because her daughter was being bullied by two of the other children on the transport.
14. The Council investigated alternative transport options for Mrs B’s daughter. It identified the only other option would cost £15.60 more per day. The Council spoke to the transport provider and the school. The Council was satisfied following those consultations that there had been no issues on the transport itself and the issues had occurred either at school or out of school. The Council therefore declined Mrs B’s request for alternative transport. Mrs B challenged that decision and the Council’s customer feedback investigation officer considered the request. The Council again declined Mrs B’s request for alternative transport as it had no evidence to suggest there were issues on the transport complained of.

Analysis

15. Mrs B says the Council unreasonably refused her request for alternative transport for her daughter to get to school. Mrs B says her daughter is being bullied by two other children that go to school on the same transport and she is therefore unable to use it. Mrs B says despite that the Council has refused to offer alternative transport arrangements. Mrs B says as a result she and her husband are having to transport her daughter to school.
16. It is not for the Ombudsman to comment on the merits of a decision unless there is fault in how that decision has been reached. In this case I have some concerns about how the Council dealt with Mrs B’s request for a review of its decision to refuse alternative transport arrangements. It is not clear the Council dealt with Mrs B’s concerns about the refusal to alter the transport arrangements for her daughter under its transport policy. Instead, the Council appears to have dealt with the matter under its complaints process. I appreciate Mrs B had submitted a complaint about delays in the process. However, it was also clear Mrs B was complaining about the decision to refuse the alternative transport arrangements and the Council should therefore have dealt with that under its transport policy. Failure to do so is fault.
17. In any event, I do not consider the process the Council had in place for reviewing school transport requests at the time met the requirements set out in Government guidance which I refer to in paragraphs 8 and 9. This says an independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. 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. 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.
18. The Ombudsman would also 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. I have seen no evidence to explain why the Council departed from the statutory guidance when framing its previous review policy. In any event, as that policy does not allow those appealing to put their case verbally to a panel I am not satisfied the process the Council operated provided parents with the same opportunities to present their case. Failure to follow Government guidance on the appeals process for school transport is fault. As a result I cannot be satisfied the Council properly considered Mrs B’s appeal. As remedy for the complaint I recommended the Council review its school transport policy to ensure the appeals process follows Government guidance. The Council has now amended its policy and it complies with Government guidance. I also recommended the Council arrange a further appeal for Mrs B which should enable her to present her case verbally. The Council has agreed to my recommendation.

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Agreed action

19. Within one month of my decision the Council should arrange a further appeal hearing for Mrs B at which she should be given the opportunity to present her case verbally.
20. The Council has reviewed its school transport policy, which now complies with Government guidance.

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Final decision

21. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman