Summary: Miss Y complains the Council wrongly refused to provide transport assistance for her two children to attend a local primary school. There is no fault in how the Council considered the application and appeal for Miss Y’s youngest child because they are not attending their closest school. However, there is fault in how the Council considered the application for the other child because the closest school told Miss Y it had no spaces in that child’s year group. The Council has agreed to the actions listed at the end of this to statement to remedy the injustice caused by fault.

The complaint

1. Mrs Y complains the Council wrongly refused her application for home to school transport assistance on the basis that her children are not attending their nearest appropriate school. Mrs Y says this is untrue because the school closest to her home address did not have availability for her children at the time of application.

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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 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)
3. 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

4. During my investigation I discussed the complaint with Miss Y and considered any information she provided.
5. We made enquiries of the Council and considered the response.
6. I consulted any relevant law and guidance which I have referred to in this statement.
7. Miss Y 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

Law and guidance relevant to this complaint

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. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
10. The statutory guidance contains the following information about how councils should decide whether a school is the applicants ‘nearest suitable’ school:
• Where a child’s nearest school is oversubscribed and unable to offer them a place, the nearest school with places available is their nearest suitable school for school travel purposes.
• In most cases, a child’s eligibility for free school travel will be assessed following the normal school admissions round once parents have been offered a place for their child to begin primary school or transfer to secondary school. In some cases, eligibility will need to be assessed at other times, for example due to a family moving into the area in-year.
• When an application for travel is considered following the normal admissions round, it can be difficult for a local authority to know whether a child could have been admitted to their nearest school if their parent did not list that school as a preference when they applied for a school place. It is, therefore, reasonable for a local authority to expect parents to list their nearest school on their application form if they intend to apply for free travel to school.

Background summary of key events relevant to this complaint

11. Miss Y and her family moved to the Council’s area in the Summer of 2023. She has two primary aged children who I will call D and E. D is the youngest child and was due to start Reception in September 2023. Miss Y applied for D’s school place and received an offer for the nearest available school. I will call this School A.
12. In June 2023 Miss Y also made an in-year application for her older child, E, to start at School A in Year 2. School A oversee their own in-year admissions. The school responded to Miss Y on 13 June 2023 by email to confirm: “Thank you for your In Yr Admission for Yr1 (Yr2 September). As explained to you it is a waiting list for Yr1 at present. You will be contact if/when this changes”.
13. Miss Y emailed School A several times in August and September about places for E. She did not receive a response to say there were any spaces in Year 2.
14. D started Reception in School A. But Miss Y wanted both children at the same school, so she found a school further away with spaces. I will call this School B. Miss Y applied for places at School B and received offers for both D and E. Miss Y removed D from School A so that they could attend School B with their sibling.
15. Miss Y applied for D and E to receive funded transport to School B. The Council refused the application. Although School B is beyond the statutory walking distance for both children, the Council said it was not the nearest suitable school.
16. Miss Y appealed the Council’s decision. At the appeal hearing, the Council said it had information to show there was space at School A for E because the school was planning to open an extra class for Year 2. Miss Y said this was the first time she had heard this information. Before removing D from Reception, Miss Y had regularly checked to see if School A could admit E. If she had known this was a possibility, Miss Y said she would have kept D in School A and waited for E to receive an offer for one of the additional Year 2 spaces.
17. After the hearing Miss Y provided paperwork to show the contact she had with School A. The emails did not give any suggestion that School A would be able to admit E in the future. The panel considered the email exchanges before making its decision.
18. The panel wrote to Miss Y on 26 January 2023. The Council did not uphold the appeal and told Miss Y that, “The Members noted the Local Authority’s case that the [School B] was not designated as the nearest appropriate school for transport purposes in accordance with the policy effective from September 2012. Members were satisfied that the policy had been applied properly, they then considered your specific circumstances and felt they were not sufficiently strong enough to enable them to use their discretion to make an exception”.

Was there fault by the Council causing injustice to Mrs Y and her children?

19. Our role is not to ask whether the Council could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.

Child D

20. It is my view that there was no fault in how the Council considered the application and appeal for D. Miss Y removed D from School A because she wanted both siblings to attend the same school. School A is 2.338 miles from D’s home address. As the nearest school with spaces, D would be eligible for transport assistance to School A because it is over two miles away and D is under eight.
21. Miss Y chose to move D to School B which is 3.463 miles from their home address. As D is not attending their nearest school with spaces, they are not eligible for free transport. Whilst I appreciate Miss Y wants D and E to attend the same school, this is not something the Council is obliged to consider when looking at transport eligibility. I have considered the Clerk’s notes and the subsequent decision letter, and I am satisfied the panel took into account Miss Y’s circumstances before making its decision. In my view, there is no fault in how the panel considered D’s case.

Child E

22. E is over eight years old. To be eligible for transport assistance they need to be attending the nearest suitable school which is over three miles away. E is attending School B which is 3.463 miles from their home address. We asked the Council which local schools had spaces in E’s year group at the time of Miss Y’s application in June 2023. The Council asserts that School A ‘may’ have had space for E, and this was just 2.338 miles from the home address. On that basis, the Council and the appeal panel decided that E was not attending their nearest suitable school and therefore ineligible for transport.
23. Miss Y provided evidence to show that School A did not have space for E at the point of her application in June 2023. The Clerk’s notes show the panel considered the email exchanges but still decided E was not eligible for transport. The panel’s decision appears to be focused on Miss Y’s parental preference for D and E to attend the same school. The panel does not appear to properly consider the eligibility of each child individually.
24. In my view, it is not clear how the panel reached its decision. The Council has not provided any evidence to show that School A had spaces for E. If there was space, then Miss Y would have received an offer letter. Instead, the panel relied on an assertion there ‘may’ be space for E in the future due to a planned expansion of the school. In the meantime, E would remain on a waiting list, but their position was not known. Therefore, there was no guarantee of an offer for E. There is no record to show how the panel considered this important point.
25. The Council and the panel must decide if the applicant had a real prospect of securing a place for their child at the nearest suitable school. In my view, the Council and panel did not satisfy itself that there was a realistic chance of Miss Y securing a place for E. To the contrary, the email exchanges showed that School A refused to admit E and instead placed them on a waiting list. I therefore find fault with how the Council and panel considered the application and appeal for E and we have asked the Council to re-take its decision.

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Agreed action

26. Within four weeks of our final decision, the Council has agreed to:
• apologise and pay £100 to Miss Y for the time and trouble caused by the fault identified in this statement. The apology letter should be written in accordance with our Guidance on making an effective apology;
• properly reconsider E’s application for transport assistance. The Council will specifically consider whether E had a realistic prospect of obtaining a place at School A;
• if the Council maintains its decision, it will offer a fresh appeal with a new panel and clerk (in person where appropriate). The panel will be given clear information about the availability of spaces in E’s year group at School A;
• if the Council decides E is eligible for transport assistance, it will refund any transport or fuel costs caused because of the fault. The Council will make any refund within four weeks of the new decision; and
27. Within eight weeks of our final decision, the Council will also:
• remind staff about the importance of providing clear information to panels about the availability of spaces in schools, especially when the Council is refusing transport on the basis there is a closer school with availability. If there is conflicting information (i.e. between the parent and the Council) the Council should obtain up to date information directly from the school.
28. The Council will provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed in the section above will provide an appropriate remedy for the injustice caused by fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman