Summary: Mrs X complained the Council failed to properly consider her appeal for home to school transport for her child. There was some fault in the way the Council decided Mrs X’s appeal, but this would not have changed the outcome. There was additional fault as the appeal was delayed, the stage two appeal decision letter lacked detail and Mrs X was not given the opportunity to make verbal representations. The Council has agreed to apologise to Mrs X and take action to prevent recurrence of the faults.

The complaint

1. Mrs X complained the Council failed to properly consider her appeal for home to school transport for her child, Y. In particular, she complained it failed to consider the safety of the walking route. As a result Mrs X is having to pay for transport for Y.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
3. 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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 have considered the information provided by Mrs X and discussed the complaint with her on the telephone. I have considered the information provided by the Council in response to our initial enquiries and the relevant law and guidance.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

8. Local authorities have a duty to provide free home to school transport for pupils of compulsory school age (five to sixteen) in certain circumstances (s508B and Schedule 35B of the Education Act 1996).
9. Local authorities must make ‘suitable travel arrangements’, ‘as they consider necessary’, for ‘eligible children’ to attend their ‘qualifying school’. This transport must be provided free of charge.
10. 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’.
11. ‘Eligible children’ are defined in Schedule 35B of the Act and include:
• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children between eight and sixteen)
• children living within [my emphasis] walking distance of the school but who cannot reasonably be expected to walk to school because the route is deemed unsafe to walk.
12. Local authorities also have discretion to provide transport for children who are not entitled to free transport.
13. The Home to School Travel and Transport statutory guidance says that where a child lives within the statutory walking distance (and is not eligible for free travel on any of the other grounds set out in the guidance) the parent is responsible for arranging their child’s travel to school. There is no expectation that the child will walk. It is for the parent to determine what arrangements would be suitable for the child.
14. Paragraph twelve of the guidance says when a local authority assesses whether the distance between the child’s home and their school is further than the statutory walking distance, the route they measure must be the shortest route along which a child, accompanied as necessary, may walk in reasonable safety. This is not necessarily the shortest route by road. The route may also include footpaths, bridleways, other pathways and alternative entrances to the school.
15. Paragraph 40 says 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.
16. The guidance recommends a two stage appeals process. At stage two it says the council should enable any parent that wishes to, to attend an appeal hearing, virtually or in person, to present their case. Where a parent does not wish to or is unable to attend the hearing the panel should make its decision based on the parent’s written representations.
17. It says the appeal panel should notify the parent in writing of the outcome of the review. They should clearly explain why they reached the decision and the factors considered in reaching the decision.

The Council’s policy

18. The Council’s policy states that it will provide travel assistance to children who attend their nearest qualifying school and where the distance between the home address and school is over the statutory walking distance. It says the statutory walking distance is measured along a route that a child might reasonably be expected to walk to school accompanied where necessary by a parent or carer.
19. It says where a parent chooses a school for a child but there is a qualifying school nearer to home which he or she could attend then travel assistance is not available.
20. Travel assistance will also be provided for all children who cannot reasonably be expected to walk to the nearest suitable school because the nature of the route is deemed unsafe.
21. The Council has a two-stage appeals procedure if an applicant does not agree with its decisions. The stage one appeal is by a Council officer although the Council’s documents refer to it as a panel. A decision will be made within 20 working days of receipt of the appeal form. The stage two appeal is considered by a panel of three council officers independent of the original decision who will consider written and verbal representations. It will make a decision within 40 working days.

Secondary school admissions

22. The Council publishes its secondary school admission criteria on line. Where schools are oversubscribed it ranks applicants against a number of criteria which generally include straight line distance between the home and school.
23. The Council publishes secondary school offer information on-line which shows how places were allocated at each school and how the oversubscription criteria were applied.

What happened

24. Mrs X applied for a school place and says she listed six preferences. Y was offered a place at School A, which was not one of the schools Mrs X applied for. Two of the schools applied for were closer to home but did not offer Y a place. Mrs X applied for school transport.
25. The Council refused Mrs X’s application as it considered the school was inside the statutory walking distance as it was 2.97 miles from the home address. In late August 2023 Mrs X appealed this decision as she considered, taking into account the walking route and certain crossings, the actual route was just over three miles. She provided evidence from google maps which showed three walking routes, all of which were three miles or more.
26. The Council updated Mrs X in mid September that it had received more appeals than it expected which had resulted in a delay in the process. Mrs X requested an idea of how long it may be and said she would like to attend the appeal.
27. The Council responded and explained it could not give a date at this stage. It explained the route was measured using Qpaths which measured the route as 2.97 miles. In addition it said there were three nearer schools which Mrs X had not applied for. It also explained that the first stage of the appeals process was completed by a review officer and parents were not allowed to be involved at that stage. It said if she remained unhappy after stage one she could go to stage two and in the past the Council had allowed parents to dial into the meeting using Teams when requested.
28. The notes of the stage one appeal record the officer noted Y’s age and the distance from home to school. It noted the journey planner and route. It considered there were three other schools under three miles and closer to home which Mrs X did not apply for. It considered the journey reasonable and within the statutory travelling distance. The Council wrote to Mrs X in mid December 2023 refusing the appeal. It apologised for the delay. It said the school was within three miles and there were three nearer schools to the home address which may have offered a place had Mrs X included them in her preferences.
29. In February 2024, Mrs X submitted a request to go to stage two. She considered the route identified by Qpaths was unsafe due to the nature of some of the junctions to be crossed and it did not take account of safe crossing points. Mrs X said this would take the route over three miles.
30. The Council held a stage two panel in March 2024. The notes record the panel noted the journey planner and the route. Its deliberations included:
• Mrs X had only used four of the six school options. It considered there were three schools closer to home which Mrs X had not applied for and only two of the schools she had applied for were on the ‘closer school list’ (the Council’s list of the six nearest schools to the home address based on walking distance);
• had Mrs X applied for the other closer schools Y may have been offered a place;
• there was no evidence Y had reduced mobility;
• there was no suggestion the child could not make the journey when supported by a parent; and
• the distance measured by Qpaths was the safest route and shortest distance.
31. The Council wrote to Mrs X in March 2024 refusing the appeal as it considered Y did not meet the distance criteria.
32. The Council’s secondary school offer information for 2024 shows that had Y applied for the three closer schools referred to in the notes of the appeal panel hearing they would have likely been offered a place at two of the schools.

Findings

33. The Ombudsman is not an appeal body. We cannot substitute our view for that of the panel. Our role is to consider whether there was fault in the way the appeal panel reached its decision.
34. The Council considered Mrs X’s appeal at stages one and two of its appeals procedure. It decided that Y did not meet the distance criteria and there were nearer schools, under three miles at which Y may have got a place. It took into account the safety of the route and that Y could be accompanied as necessary.
35. The Council uses Qpaths to measure the walking distance. This takes into account accessible footpaths and roads. We would not expect it to take into account exactly where a pedestrianised crossing is on the road in calculating the walking distance. There was no fault in the way it calculated the walking route and decided it was within the statutory walking distance.
36. The Council also said there were nearer schools at which Y may have got a place had they applied. The nearest suitable school is a school with places available, not one that may have places available. The Council’s consideration was fault. However, having considered the information subsequently published by the Council regarding applications to secondary school, I am satisfied that, on balance, there were two schools at which Y had a real prospect of getting a place had they applied. Therefore, this did not impact the outcome of the appeal.
37. There was a significant delay in the Council holding the stage one appeal. The Council should have done this within 20 working days, instead it took three and a half months. This delay was fault and caused Mrs X frustration. The Council explained to Mrs X that this was due to the unexpected volume of appeals it received.
38. When Mrs X contacted the Council about the delay she asked to attend the appeal. The Council explained this was not possible but could be possible at stage two. After Mrs X submitted her stage two appeal the Council failed to offer her the opportunity to make verbal representations. This was fault and not in line with the Council’s policy or statutory guidance. This added to Mrs X’s frustration, but I am satisfied the Council understood her arguments from her written representations, so the fault did not affect the appeal outcome.
39. The Council’s stage two letter stated Y did not qualify for free school transport based on distance. It failed to explain how it had considered the information Mrs X provided and made no reference to other nearer schools. This lack of information in the decision letter was fault and also caused Mrs X frustration.

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Agreed action

40. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X for the frustration caused by the delay in her appeal, its consideration of other nearer schools, not being given the opportunity to make verbal representations and the lack of detail in the stage two decision letter. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.
2. remind relevant staff of the need to clearly explain the reasons for its decision in its appeal letters.
3. ensure parents are aware of any action they need to take, and given the opportunity, to make verbal representations at stage two of the appeal process if they want to.
41. The Council should provide us with evidence it has complied with the above actions.

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Final decision

42. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy. It has also agreed to take action to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman