Summary: We found fault on Mr P’s complaint about the Council’s assessment of his request for free home to school transport which means his daughter will have a longer travel route to school. There was no guidance about how to assess the shortest walking route to the nearest school. Its policy could have been clearer about the assessment for deciding the nearest school and that used after this was decided. The agreed action remedies the injustice caused.

The complaint

1. Mr P complains about the Council’s failure to:
1. provide his daughter with free home to school transport from September 2023 because of its decision that she is not attending her nearest school; and
2. properly consider his appeal against its decision when it went to the Independent Transport Appeal Panel.
2. As a result, he and his wife drive their daughter to and from school each day.

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The Ombudsman’s role and powers

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)
4. 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)

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How I considered this complaint

5. I considered all the information Mr P sent, as well as the Council’s response to my enquiries. I sent a copy of my draft decision to Mr P and the Council. I considered their responses.

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What I found

Council’s Home to School Transport Policy (2023/2024)

6. It must provide free transport to and from school for a child aged 5-16 who lives outside the legal walking distance between home and the nearest qualifying school. (section 508 (B) Education Act 1996).
7. By law, it must provide free transport to and from school for a child who is:

• Under 8 and has to walk more than 2 miles to the nearest qualifying school; or
• Aged 8 or over who has to walk more than 3 miles to the nearest qualifying school.

8. When assessing eligibility, the Council considers whether the nearest qualifying school has places available and provides education appropriate to the age, ability, and aptitude of the child. It will ‘measure the distances using the shortest suitable walking route.’
9. The nearest qualifying school for a child will usually be the one:

• closest to their home (measured by the shortest walking or road route as accepted by the Council).
• where there is a place available or where a place could have been offered at the allocation stage of school admissions had it been requested. (paragraph 4C)

10. Once it decides the nearest school, it measures the distance to the school using the shortest suitable walking route.
11. If it considers the ‘shortest walking route’ to a school is not suitable for children when walking with an adult, it will look to find a suitable alternative which is less than the legal walking distance to school. The Council will not consider the suitability of a walking route to school unless the child is going to their nearest school. (paragraph 4L)
12. If parents consider the shortest walking route, which is within the statutory mileage distance, is unsuitable, the Council can carry out an assessment of the whole route, or parts which the parent thinks are unsuitable (Appendix A). Routes are only considered for suitability if they meet the statutory mileage criteria, which for children under 8 is two miles. Its assessment of the suitability of the route will consider:

• alternative routes;
• a suitable adult will accompany the child. It noted lonely routes and routes without street lighting will be considered although their existence will not usually make a route unsuitable;
• availability of footway, walkable roadside strips, footpaths, bridleways;
• suitable crossing points;
• roads without footways; and
• accident statistics.

The Law: School transport

13. The Department for Education published statutory guidance for councils in June 2023, ‘Travel to school for children of compulsory school age: Statutory guidance for local authorities.’ (the Guidance)
14. 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.
15. The relevant ‘qualifying school’ is the nearest suitable 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.
16. ‘Eligible children’ include:

• children living more than the ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above); or
• children who could not be reasonably be expected to walk to that school because of their special educational needs, disability, or mobility problem, even if accompanied by their parent; or
• children who could not reasonably be expected to walk to that school in reasonable safety, even if they were accompanied by their parent. (Education Act 1996, 508B(1) and Schedule 35B and paragraph 2 of the ‘Guidance.’)

17. The statutory walking distances are used to decide whether a child is eligible for free travel to school. Where a child lives within the statutory walking distance, the parents are responsible for arranging the child’s travel to school. There is no expectation the child will walk. It is for the parents to decide what arrangements would be suitable for the child. (paragraph 9 of the Guidance)
18. When a council assesses whether the distance between a child’s home and 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 distance by road. The route may also include footpaths, bridleways, other footways, and alternative entrances to school. (paragraph 12, the Guidance)
19. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
20. Where more than one school is beyond the walking distance, councils may consider it more appropriate to measure the shortest road route or the straight-line distance. It should be clear in its travel policy how the route will be measured. (paragraph 37, the Guidance)

What happened

21. In July 2023, Mr P applied for travel assistance for his daughter Q who had a place at school 1 which was 3.44 miles from home.
22. The Council refused his request because Q was not attending her nearest suitable school which it said was school 2. This was 2.95 miles from home and was undersubscribed for Q’s year of entry. It decided as there was a nearer suitable school, Q did not qualify for free school transport.
23. Following contact from Mr P, an officer visited the footpath and route he used in his assessment when claiming school 1 was closer. Mr P said it was a public road with a short section of a footpath where the road then went through an open ford onto a lane. The Council told him when assessing his request, it had to identify whether Q was attending her nearest school. The Council explained when doing this, it considered which was the shortest route to each school using roads and footpaths that ‘would be reasonably used on a journey to school’. It explained there were many footpaths and bridleways in its area which would not be reasonable to use on a journey to school.
24. It assessed his route but decided part of it was:

• quite muddy and not suitable for a walk journey to school;
• not tarmacked on another stretch and was used by local farm vehicles. It was also muddy due to farm traffic and had many large puddles including some across the whole width of the lane; and
• also in a local flood basin area with stretches leading directly to the river which meant they could not be used when the river was high.

25. Mr P argued this failed to explain why the route would not be the shortest walk that could be walked in reasonable safety. He also noted the Council’s argument would only apply to walking, not by car for example. Mr P pointed out a siren sounded when flooding happened, and while mud was inconvenient, it did not make it unsafe.
26. Mr P appealed the decision arguing ‘other exceptional reason’ applied, and that Q lived outside of the statutory walking distance for children under 8 years of age. He believed the Council wrongly assessed his request.
27. Mr P appealed on the grounds:
1. the route he assessed used a footpath which was safe and well used. He was unsure why the Council assessed it as unsuitable. Mr P used an alternative route which was shorter than the Council’s. His used a couple of footpaths and a bridge. The Council argued if it was policy to use public rights of way, as suggested by Mr P, a different school would be nearer anyway. It would not use these footpaths because of their condition in poor weather.
2. the Council used the wrong tests when assessing the nearest school. It failed to assess it properly because:

• guidance does not allow the Council to consider the suitability of the walking route when calculating the nearest suitable school. Suitability was only relevant for walking routes which were within the statutory walking distance, not for routes beyond it; and
• it wrongly assessed the route based on whether it would be ‘reasonably used’ as a walking route to school when the correct test was whether it could be walked in ‘reasonable safety’ when accompanied by a parent. He referred to paragraph 12 of the statutory guidance.
3. the shortest route identified by the Council to school 2 used single track farm lanes which were unlit and had no pavements. There were dangerous bends on it and even a stream crossing it. It was far less suitable than that he assessed to school 1.

28. In January 2024, the Independent Transport Appeal Panel (the panel) rejected Mr P’s appeal following a deferment to allow both routes to the schools to be reassessed by officers. The clerk’s notes recorded the walking route to school 2 was suitable in accordance with its Unsuitable Routes Policy. During the hearing, the presenting officer confirmed the assessment was measured by firstly, establishing the nearest school, then looking at establishing a safe walking route by pathways or road route.
29. The panel found Q was not attending her nearest suitable school, school 2. The panel explained assessing school transport was a two-stage process. The first was to decide if the child was attending their nearest school. Only if the child attended the nearest school did the suitability of the walking route get assessed.
30. When deciding the route to find which was the nearest school, the Council looked at the shortest route using roads and paths that could be part of a ‘reasonable journey to school’. The assessment of Mr P’s suggested route would, ‘not be reasonable’ to use certain sections when travelling in heavy rain. Mr P disagreed it was for the Council to decide the nearest school.
31. The panel rejected Mr P’s argument the Council could not assess the route this way. This was because the guidance did not set out how councils should decide the nearest school in terms of routes. It was up to the Council to decide the nearest. There were no statutory requirements for councils to decide routes to the nearest school.
32. Q started school 1 in September 2023.

My findings

33. Mr P wanted Q to attend school 1, but the Council assessed it as further away from home than school 2. In his submissions, he argued the route he suggested would mean school 1 was in fact the nearest school. The Council considered his suggested route but confirmed school 1 was not her nearest school.
34. The starting point for how the nearest school was assessed was found in paragraph 4C of the Council’s policy which was headed ‘Assessing a child’s eligibility to receive transport assistance was a two-part process’.
35. It explained this was a two-part process which involved: i) the nearest qualifying school was usually the one closest to the home as measured by the ‘shortest walking or road route’, as accepted by the Council; and ii) which has, or had, available places.
36. I am concerned about how the Council approached its decision that school 1 was the nearest. This was because:
1. there was no guidance to officers about how they assess the shortest walking or road route. Although I note the panel said it was for each council to decide the shortest route to school to decide the nearest, there was no guidance for officers showing what factors could be taken into account when making such an assessment. Paragraph 37 of the Guidance said a council needed to make it clear in its travel policy how the route would be measured when more than one school was beyond the walking distance. I am not satisfied the Council made it clear.
2. the Council’s initial decision on his request referred to establishing the shortest route using roads and footpaths which would be ‘reasonably used on a journey to school’. The panel also referred to the Council establishing a ‘reasonable journey to school’ and how it would not be ‘reasonable’ for parents to walk along roads and paths that had puddles across their surfaces, for example.
3. the Council’s policy said nothing about ‘reasonably used’ or a ‘reasonable journey’ or whether it was ‘reasonable’ for parents to walk along puddled paths, for example.
4. nor was there any guidance or explanation about what ‘as accepted by the Council’ meant under the first part of the two-staged test.
5. I consider the policy failed to clearly explain how the Council would assess the nearest school and what factors it would take into account when doing so.
6. I am satisfied these failings amount to fault and caused some injustice to Mr P in the form of distress (frustration, for example).
7. I am not satisfied they caused Mr P any other injustice. This was because the evidence showed the officer went out to assess the route suggested by Mr P. Having seen the route for himself, the officer concluded the Council would not use it in its assessment because of its condition in parts and risk of flooding. This was considered by the panel along with the information Mr P sent about flood risk and condition of footpaths.
8. I am not satisfied Mr P’s argument was correct about paragraph 12 of the Guidance. This was because it only applied once the nearest school had been established and was the nearest suitable school.
9. The Council later issued its new ‘Home to School Transport Policy 2025 to 2026’. This explained how the Council calculated the home to school distance for the nearest school. Where there are several schools within three miles of the home, it will decide by measuring the shortest route along which the child, accompanied as necessary, may walk in reasonable safety. Route assessments may take account of public footpaths, bridleways, other footpaths, as well as recognised available roads. All distances were measured using its own mapping software to ensure consistency of assessment.
37. I have also looked at school 2 as the Council assessed it as the nearest qualifying school for Q.
38. Again, the starting point was paragraph 4C of its policy which dealt with how the Council decided this was the nearest school. I will not repeat the points already made about my concerns with the lack of guidance for officers who decided this.
39. Once the Council assessed school 2 as the nearest school, paragraph 4D was relevant. Paragraph 4D was headed ‘Measuring the shortest route to the determined nearest school’. This stated once the Council established the nearest school, it now measured the distance to it using the ‘shortest suitable walking route’. It is at this point the issue of suitability of a walking route applied. It went on to explain it would take the measurement using computerised map measurements but under its then existing measuring system, it may include measuring along roads, footpaths, and bridleways.
40. I also noted paragraph 4L, headed ‘Unsuitable routes’, stated the Council would only consider the suitability of a walking route to a school if the child was going to their nearest school. If it considered the shortest walking route to a school was not suitable for children walking with an adult, it would find a suitable alternative which was less than the legal walking distance to school. If it could not do so, it would offer free transport to the nearest school. It ended by stating Appendix A explained its guidelines for assessing the suitability of walking routes.
41. Appendix A was headed ‘Unsuitable routes policy’. If it received a request to do so, it would assess the whole, or part of the route, a parent argued was unsuitable when the shortest walking route was within the statutory mileage distance. Routes would not be considered for their suitability if they did not meet the listed criteria (the statutory mileage walking distance).
42. I am satisfied the Council properly assessed the distance to school 2 using the shortest suitable walking route.
43. I found no fault on his complaint about the appeal. This was because I am satisfied on the evidence the panel correctly considered and decided it.

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Agreed action

44. I considered our guidance on remedies.
45. The Council agreed to take the following action within 4 weeks of the final decision on this complaint:
1. Send Mr P an apology for failing to: have guidance on how the assessment of the nearest school was to be done; make the difference between how it assesses the nearest school and walking routes after this has been done clearer in its policy.
46. The Council also agreed to take the following action within 4 months of the final decision:
1. Provide guidance for relevant officers about how to assess the shortest walking route or road route to the nearest school and what factors should be considered.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I make the following findings on Mr P’s complaint against the Council:

• Complaint a): fault causing injustice; and
• Complaint b): no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman