Summary: Mrs X complained about how the Council considers school transport applications for children in her village. We do not find fault with how the Council assesses these applications. We find the Council at fault for delays in considering Mrs X’s appeal and for a lack of communication. The Council has agreed to apologise, make a payment to recognise the uncertainty caused, and act to prevent recurrence.

The complaint

1. Mrs X complains about the Council’s decision to change how it offers school transport for children in her village. Specifically, Mrs X says the Council:
• failed to consult or communicate changes to the way it assesses school transport applications;
• has a policy in place that is based on an incorrect interpretation of government guidance; and
• submitted late and incomplete information to her appeal hearing.
2. As a result, Mrs X says she was denied the opportunity to make an informed choice about which school to send her son, Y to. Mrs X says, had she been aware of the Council’s decision to remove free school transport from her village she would likely have sent Y to a school with more easily accessible transport links.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I spoke to Mrs X about her complaint and considered information she provided. I also considered information received from the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant law

8. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and 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’ include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• 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 walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)
9. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied.
10. A child will not normally be eligible solely because their parent’s work commitments or caring responsibilities mean they are unable to accompany their child themselves. Councils must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case.
11. Where the local authority determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, paragraphs 47 to 52)
12. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
13. The statutory guidance recommends councils adopt the following appeals process:
• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about complaining to the Ombudsman. If a parent considers the decision of the independent appeals panel to be flawed on public law grounds, they may appeal for a judicial review.
  (Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

The Council’s policy

14. The Council’s Home to School/College Travel and Transport Policy (the policy) can be found on its website. It explains parents have a legal duty to ensure their children attend school regularly and make any necessary arrangements to facilitate this.
15. The policy sets out who is eligible for assisted travel in line with the Education Act 1996. It says the Council will provide free home to school transport for any child aged eight and above where the shortest walking distance between home and school is over three miles.
16. The policy explains that if a parent believes their child is unable to walk the assessed route safely, accompanied by an adult as necessary, due to the nature of the route, its Safer Travel Team will assess the route. It also explains that if a route previously considered to be unavailable becomes available, transport will no longer be provided to any new applicants for transport assistance.
17. The Council’s policy also sets out how parents can appeal against decisions on their transport applications, and this mirrors the guidance set out above.

What happened

18. I have summarised below some key events leading to Mrs X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
19. The Council uses a Geographic Information System (GIS) to assess routes. Prior to February 2021, the Council’s team responsible for assessing school transport applications was not aware of a safe walking route from Mrs X’s village to School A, which was outside of the Council’s area, and granted free travel in bulk without the need to apply.
20. In February 2021 the Council restructured its School Travel and Assessment Team. As a consequence, assessment of school transport applications became the responsibility of a new team, the Travel and Assessment team who had fuller access to GIS. The Council’s policy did not change at that point, and it says there was no conscious decision to change how applications were reviewed. However, this team became aware of additional routes that were previously thought to be unavailable. From then, it stopped granting free transport to School A in bulk and began telling families they would need to apply.
21. In September 2021 a parent raised concerns around the walking routes from Mrs X’s village to School A as they felt these were unsafe. The Council’s Safer Travel Team carried out a Safety of Route Assessment in October 2021 at 8am, to coincide with school journey times. They considered footpath continuity, dangers of road crossings and collision data from the area and judged the route to be safe and less than three miles long.
22. In July 2022 Mrs X made an application for travel assistance as Y was due to start at School A. Mrs X said this was Y’s nearest available school and the walking distance was more than three miles. Mrs X’s application confirmed Y could use public transport, had no medical reason to restrict him, and she had no mobility issues.
23. In August 2022 the Council wrote to Mrs X to explain it had assessed the distance between her home and School A to be less than three miles and so Y was not eligible for free school transport. The Council said Mrs X could apply for concessionary travel support and invited her to provide any information about why Y could not walk to School A. The Council explained Mrs X could submit a Transport Case Review form to register an appeal within 20 working days and provided a link to the form.
24. Mrs X emailed the Council on 12 August to say she felt it had incorrectly assessed her application. Mrs X agreed the shortest walking route was less than three miles, but she said it was not safe. Mrs X said the route was secluded, unlit, and prone to getting very muddy in winter months. Mrs X also pointed out a free bus was still running from her village to School A for children in school years above Y’s which made the Council’s policy seem inconsistent.
25. As she did not hear back, Mrs X chased the Council on 2 September.
26. On 6 September Mrs X emailed the Council to explain she was still waiting for the outcome of her appeal. She said Y had started at School A the previous day and had taken the Council funded bus from the village but on the way home had been told he could not use it again. Mrs X explained she and her husband both worked and had a child at a different school so it would not be realistic for them to drive Y to school and back. She reiterated that she believed the walking route was unsafe and said taking public buses would mean changing part way and would take up to 65 minutes.
27. On 12 September Mrs X emailed the Council again to explain it had now been more than 20 working days since she appealed. She said she was now submitting a Transport Case Review form, which she had not done previously. On the form, Mrs X explained she felt the Council’s decision not to award transport was wrong. She provided maps and photos to evidence it would take around 52 minutes to walk, there were steep gradients, the route was secluded and covered muddy terrain. Mrs X said the route would be dark in the winter months and it would be difficult for a parent to provide quick assistance if their child fell into difficulty. Mrs X also said she was concerned the public bus route meant crossing a busy road to meet the connecting bus.
28. The Council acknowledged Mrs X’s appeal on 27 September and apologised for the delay in responding. It said it would now consider the appeal.
29. Mrs X complained that same day. She said she had chased multiple times and been waiting since 12 August.
30. On 2 October Mrs X contacted the Council to provide additional evidence to support her appeal. Mrs X provided a document that explained:
• the Council’s email declining her application did not detail what the shortest route from her home to School A was;
• she had found two routes online, both of which were lengthy and unsafe;
• the Council had not followed government guidance to consider a range of risks as well as local knowledge and it was not reasonable to expect a parent to accompany a child on a route that took over 50 minutes each way;
• the bus routes took around 52 minutes, were longer than three miles, meant crossing a busy road to reach a connecting bus and government guidance said children should not have to make several changes which resulted in an unreasonable journey time; and
• she felt the Council was treating new applicants differently to existing pupils.
31. The Council responded to Mrs X’s complaint on 7 November. It apologised for not having responded to her stage one appeal and said this was down to a high volume of contact and appeal requests. The Council said it had received Mrs X’s appeal paperwork and had requested a new Safety of Route assessment ahead of her stage one appeal.
32. On 9 November Mrs X asked the Council to reconsider her complaint and confirm when her appeal would be answered. Mrs X said the Council was still running a free bus for children in years above Y’s which had empty seats and asked if Y could use this while she awaited the outcome of her appeal. Mrs X explained she was now part of a group with several other parents in her village who were in the same situation as her.
33. The Council’s Safer Travel Team carried out a new Safety of Route assessment on 30 November. This was done by site visit. The assessment considered footpath continuity, dangers of road crossings and collision data from the area and judged the route to be safe and less than three miles long.
34. The Council responded to Mrs X’s stage one appeal on 2 December. The Council apologised for the delay and said it had decided not to provide travel assistance. The Council said the walk from Mrs X’s home to School A was less than three miles and its Safer Travel Team had assessed this to be a safe route. The Council explained it was not dutybound to consider personal safety issues of a child travelling alone. It said if a parent was concerned about lighting or terrain, it was reasonable for that parent to accompany their child, as set out in government guidance. The Council explained how Mrs X could escalate her appeal to be considered at stage two if she disagreed with the outcome.
35. On 10 December, Mrs X emailed the Council to disagree with the outcome of her stage one appeal. She asked the Council to progress this to a group stage two appeal with the other affected families.
36. Mrs X asked the Council not to set a date for the stage two appeal until she had gathered evidence, including an independent risk assessment of the route to School A.
37. Mrs X spoke to the Council by phone on 12 March 2023. The Council agreed there had been some difficulties and learning points since it restructured its travel assessment team. The Council agreed it could have communicated better and explained it was trying to become more consultive. The Council agreed to have a video call with Mrs X and the other affected families so they could put their points across in a presentation ahead of the stage two panel appeal.
38. In June 2023, independent consultants commissioned by Mrs X and the other affected families produced a report on the route from the village to School A. The report said there were three available routes:
• The walking route the council had recommended. The report found this would take up to 60 minutes in normal conditions and potentially 75 minutes in adverse weather. The report found this route to contain steep gradients, overgrown vegetation and challenging terrain, with no illumination. The report said safety on this route was a concern as children would be walking in darkness during winter months and heavy rainfall could create a dangerous surface to walk on. The report recommended the Council remove this route from its consideration as it was unsafe to walk in its current state.
• Public transport. The report found this would require walking along unlit footpaths and crossing a busy road at a timed crossing. The report found this was potentially dangerous due to the temptation to cross the road earlier than the signal to do so due to fear of being late for school. The report said it would not be suitable for a child from the village to travel to School A by existing public transport options.
• Travel by car, which would cover 4.7 miles and 14-25 minutes, depending on traffic. The report found this not to be a viable option due to potential restrictions, such as other children attending different schools and varying start and finish times to account for extracurricular activities.
39. The report concluded with a recommendation for the Council to reinstate the free bus service between the village and School A.
40. Mrs X and the other affected parents provided their submissions to the Council by 7 July, ahead of the stage two hearing. The Council submitted these to the panel to consider. The Council was aware Mrs X would use a presentation during the hearing but has said it was not aware this should have been submitted prior and so it did not provide it with the rest of Mrs X’s submissions to the panel.
41. On 11 July the Council carried out an Assessment of Route Safety for the public transport route at 7:23. This assessment considered footpath continuity, dangers of road crossings and collision data from the area and judged the route to be safe. The assessment also considered a section of the road with timed crossings and found there was ample time and space for this to be crossable when vehicles were held at red lights. The Council provided Mrs X with a copy of this assessment on 11 July, and it was submitted to the panel on 12 July.
42. The group stage two panel hearing took place on 21 July. While it had not previously seen Mrs X’s presentation, the panel agreed for this to be given on the day as it had viewed all the submissions mentioned within it. The panel also heard the Council’s response to the case that was put to them. The meeting minutes show the panel asked questions where it felt necessary and allowed Mrs X to question the Council’s response to her case.
43. The panel considered all the evidence from both the Council and Mrs X and the other parents and unanimously decided that the shortest walking route put forward by the Council was deemed safe and public transport was available and accessible as an alternative route. The panel further unanimously determined that the Council’s policy had been correctly and impartially applied when reviewing this case. The Council wrote to Mrs X on 2 August to provide the panel’s decision and its reasons for this.
44. In response to a draft of this decision, the Council explained that prior to restructuring the Travel and Assessment Team, there was a backlog of appeals, which coincided with the delay Mrs X experienced. However, since December 2022, more than 99% of appeals have been heard within the statutory timescales.
45. In response to a draft of this decision, Mrs X said:
• The move from carrying out bulk assessments to individual assessments is a policy change in real terms and ought to have been communicated with her ahead of applying for Y’s school place. While the Council was legally entitled to do this, the lack of communication is not in the spirit of the law which asks for transparency. This means Mrs X is now incurring travel costs she may not have done if she had known in advance and applied to a different school for Y.
• The Assessment of Route Safety that took place on 11 July 2023 was after the Council had already received and reviewed all of Mrs X’s submissions for the panel hearing.
• She will now incur uncertainty and additional travel costs for the duration of Y’s time at School A.

Analysis

46. The Ombudsman is not an appeal body. This means it is not our role to take a second look at a decision not to provide school transport to decide if it was right or wrong. We are also not here to substitute the Council’s opinion for our own when it comes to matters such as what is a safe walking route to school.
47. Instead, we look at the processes a council followed to make its decisions. If we consider it followed those processes correctly, and they were in line with the relevant law and guidance, we cannot question whether the decision was right or wrong, regardless of whether a complainant disagrees with it.
48. The Council is entitled to restructure its internal departments as it sees fit and I could not find it at fault for changing who is responsible for making decisions on school transport applications. I have looked at a copy of the Council’s policy prior to and after the restructure and I can see no change in how it assesses applications. Changing which team is responsible for decisions does not constitute a change of policy and would not demand the same consultation as changing the policy would. I do not find the Council at fault here.
49. Having compared the relevant sections of the Council’s policy with the relevant sections of the government guidance, I find no fault with how it is written. The Council’s policy sets out the key elements of the guidance, often using the same wording, and mirrors the processes set out. I do not find the Council at fault here.
50. All councils have discretion to provide free school transport beyond what is statutorily expected of them if they wish to, and the Council did that in previous years. However, that did not set a precedent for all future years and the Council was free to stop exercising its discretion and withdraw free school transport at any time. I cannot find the Council at fault for doing so.
51. The Council responded promptly to Mrs X’s initial application, and explained Y was not eligible for free home to school transport because his school was within the statutory walking distances. I do not find the Council at fault here as it correctly applied the guidance and the Council’s policy as it is written when making its decision. I could not find fault with the Council’s decision-making process simply because a previous team exercised its discretion to provide free school transport.
52. Mrs X emailed the Council to appeal against its initial decision on 12 August 2022. The Council then had 20 working days to respond to Mrs X’s appeal, meaning by 10 September 2022. The Council did not respond to Mrs X’s appeal until 2 December 2022, almost three months later, despite her chasing multiple times for a response. This is fault and caused considerable uncertainty for Mrs X, which is injustice.
53. As Mrs X had questioned the safety of the walking route, the Council carried out a new safety of route assessment. This was done in person and considered whether a child could walk the route in reasonable safety if accompanied by an adult. I do not find fault with the Council’s decision-making process here. I appreciate Mrs X disagrees with the outcome of the assessment, but it is not my role to question this where the right process has been followed.
54. When the Council responded to Mrs X’s stage one appeal, it explained what it had considered and how it had determined Y was not eligible for free home to school transport in line with its policy and the guidance. It also set out what route it had considered and how it had considered if there were exceptional circumstances meaning it would not be reasonable for Y to use that route if accompanied by an adult. The Council correctly followed the guidance and its own policy and I do not find fault with its decision-making process here.
55. Mrs X asked the Council to review its decision at a stage two panel appeal on 10 December 2022. The Council had 40 working days to complete arrange this, meaning by 6 February 2023, but the panel hearing took place on 21 July 2023, more than five months later. However, the delay here was at Mrs X’s request in order to gather supporting evidence for her case. I do not find the Council at fault for delays.
56. During this period the Council also carried out further safety of route assessments to consider if the bus route could reasonably be considered safe for a child to take if accompanied by an adult. Again, this was done in person and considered the relevant criteria according to the guidance. I do not find fault with the Council’s decision-making process.
57. When the Council submitted the evidence to the appeal panel for consideration ahead of the panel hearing, it did not include the presentation Mrs X intended to deliver. However, the panel agreed to consider the presentation as it did not contain any new information. As the presentation was considered in full by the panel before a decision was made any injustice here would be minimal.
58. Having looked through the minutes of the panel hearing, and the outcome letter explaining how it reached its decision, I am satisfied the panel considered all the submissions and points made by both the Council and Mrs X. This included the independent report Mrs X provided suggesting the Council continue to run a free bus between the village and the school. It is not my role to say how much weight the panel should give to any particular argument or submission. The panel considered everything it was presented with, including how the Council assessed the safety of the walking route and I do not find fault with its decision-making process.
59. While I cannot find fault with the Council’s decision-making process, there is fault with how it has communicated with Mrs X throughout. There were numerous instances where the Council failed to respond to Mrs X, and she had to chase it for updates. There are also examples of the Council using templated response letters, such as its initial response to Mrs X’s application, without properly tailoring these to include the right information, such as Y’s school name. This is poor practice and amounts to fault which caused uncertainty for Mrs X, which is injustice.

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Agreed action

60. To remedy the injustice identified above, the Council has agreed to carry out the following actions:
61. Within one month:
• Provide Mrs X with a written apology for the injustice caused to her by the faults identified; and
• Pay Mrs X £250 to recognise the uncertainty caused to her by the delays and the lack of communication throughout the process.
62. Within three months:
• Develop an implement a process for its Travel and Assessment team to ensure appeals are progressed in line with government guidance and applicants are responded to in a timely manner.
63. The Council has informed us that over 99% of appeals are now progressing in line with statutory timescales. The Council should provide us with evidence it has complied with the outstanding actions above.

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Final decision

64. I find the Council at fault for delays in the process of dealing with Mrs X’s appeal and for a lack of communication. I do not find fault with how the Council considered Mrs X’s initial application or subsequent appeals. The Council has agreed to the recommendations above and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman