Summary: The Council did not properly record its decision-making when deciding Mr B’s school transport appeals and it failed to provide sufficient detail in its decision letters. There was fault in the way the Council recorded its decision-making. Because of this, Mr B suffered uncertainty. The Council will apologise to Mr B, train staff, and offer Mr B a fresh appeal.

The complaint

1. Mr B complains his rejected applications for school transport for his two children have not been measured correctly by the Council against its home to school transport policy. He is concerned that the same officer was involved in the stage one and stage two appeals which would go against the Council’s policy, and that the Council has only focussed on distance in its decision rather than the full circumstances of his case.
2. Mr B says he is affected financially, and he would like the charges made to him so far returned, and transparency from the Council about how it follows its policies.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I read Mr B’s complaint and spoke to him about it on the phone.
6. I considered information provided by Mr B and the Council.
7. Mr B and the Council have had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

8. Councils in England must provide such travel arrangements as it considers necessary to get every eligible child of compulsory school-age to their relevant educational establishment and back home again. Travel arrangements for an eligible child must be free and must not require the parent to incur extra costs. (Education Act 1996)
9. An eligible child is:
• A child with special educational needs, a disability or mobility problem, who lives within the walking distance but cannot be expected to walk.
• A child who cannot be expected to walk because of the nature of their route.
• A child beyond the walking distance and without suitable alternative arrangements.
• A child aged between eight and ten in a low-income family living more than two miles from their preferred suitable school.
• A child in a low-income family living between two and six miles from their preferred suitable secondary school, or
• A child in a low-income family living between two and 15 miles from a suitable secondary school chosen for religious reasons. (Education Act 1996 section 444(5) and schedule 35B)
10. The local authority may provide travel assistance for children who are not eligible children.

Appeals procedure

11. Councils should have an appeals procedure in place for parents who wish to appeal about the eligibility of their child for travel support.
12. The statutory guidance recommends councils adopt the following appeals process:
• Stage one: 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. This sets out the nature of the decision, how the review was conducted, what was considered, the rationale for the decision reached, and how to escalate their case to stage two.
• Stage two: review by an independent appeal panel. Within 40 working days of receiving a parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent. This sets out: the nature of the decision reached; how it conducted the review; what factors it considered; the rationale for the decision reached; and information about bringing the matter to the Local Government and Social Care Ombudsman.

The Council’s home to school travel and transport policy

13. The Council’s policy says stage two panel members are independent and impartial. This means they will not have previously been involved in considering the matter.
14. The policy also says a letter outlining the outcome of the panel’s decision will be sent to the parent. This will reference the home to school travel and transport policy and information provided by the parent in support of their appeal.
15. If a decision is made to decline the appeal, the policy says the Council will provide reasons to explain why.

Our Focus Report on school transport

16. As part of our role we periodically issues Focus Reports to highlight common or systemic issues we see. These reports share learning from complaints to help councils and care providers improve, contribute to public policy debates, and give elected members tools to scrutinise local services.
17. In March 2017, in response to growing numbers of complaints about school transport, we issued a Focus Report: All on board? Navigating school transport issues
18. In the report, we highlighted issues including decision letters councils issue following applications for school transport or subsequent appeals not always being sufficiently reasoned and detailed to enable parents to properly understand all factors considered in reaching the decision made.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. In early November 2023, Mr B applied for school transport for his two children and the Council declined the applications. Mr B says the Council told him his children are not attending the nearest school for his address so they are not eligible for free school transport assistance, but he may apply for concessionary travel.
21. On 10 November 2023 Mr B sent a stage one appeal to the Council. He told it his family had only just moved to their current address, and both of his children have attended their current school since the beginning of their school life. He also told the Council there were several points in its policy which support his appeal.
22. On 6 December 2023, the Council sent its stage one appeal response to Mr B and told him it could not uphold his appeal and provide free school transport.
23. The response advised Mr B as his children are not attending the nearest school or catchment area school for their address, although the difference in mileage is not huge, it strictly applies the eligibility criteria to ensure a consistent approach.
24. On 20 December 2023, Mr B sent a stage two appeal to the Council. He told it he did not believe the Council carried out the review of his stage one appeal in line with its policy. This is because it did not consider all the points he raised in his stage one appeal. He also outlined several reasons he was appealing at stage two including medical and financial reasons, and his family situation.
25. On 7 February 2024, the Council sent its stage two appeal response to Mr B and told him it could not uphold his appeal and provide free school transport.
26. The response advised Mr B the appeal panel members thought the key overriding reason was parental choice. The Council’s school transport policy makes it clear that where a child attends a school outside their catchment area, the parent, in exercising this preference, becomes responsible for making home to school transport arrangements, unless the preferred school is closest to the home address as measured under the method outlined in the policy. It said having made the decision to move house, panel members did not think it then reasonable for Mr B to expect the Council to assume responsibility for getting his children to and from school.
27. The response also advised Mr B the Council considered the points he raised in support of his appeals. And it said the fact the stage one appeal was not upheld should not be interpreted as a refusal by the Council to consider his various points.
28. The Council’s stage two appeal response did not signpost Mr B to the Local Government and Social Care Ombudsman if he wished to take the matter further.
29. In March 2024, Mr B contacted the Council and asked it about how it made its decision. He said the responses to both appeals were generic in their conclusions and they did not address or respond to all points included in his appeals, such as one of his children’s health issues.
30. Mr B told the Council he was not happy with how the Council applied the policy to the appeals procedure by whoever carried out the review of his appeals. He also said the stage two appeal response was not signed off by the author so there was no accountability for the decision. Mr B asked the Council how he could take the matter further.
31. A few days later, the Council replied to Mr B and outlined the decision-making process. It also told him he could take the matter to the Local Government and Social Care Ombudsman as he had exhausted the appeals procedure.

Analysis

32. The only consideration recorded by the Council at either stage one or stage two is its policy, and that Mr B’s children are not attending their nearest school or catchment area school for their home address, and that this is parental choice.
33. While the Council’s stage two appeal response assured Mr B it considered all the points he raised in his appeals, it does not explain what points it considered, and the rationale for how it considered them which led it to decline the appeal. Therefore, the decision letters do not follow statutory guidance and our Focus Report. These say the decision letters from the Council should be sufficiently reasoned and detailed to enable parents to properly understand all reasons considered in reaching the decision it made. This was fault.
34. The Council told us it does not have minutes of the appeal panel hearing. It said it records all decisions and rationale in the stage two appeal response letter, and this letter is the Council’s record of decisions made.
35. As the stage two appeal response letter does not explain how the Council considered all the points raised by Mr B in his appeal, and there are no minutes from the appeal hearing, there is a lack of evidence to show if the Council considered all the points raised by Mr B, and how it reached its decision. The lack of minutes from the appeal hearing means there is also no evidence to show who was involved in the stage two appeal panel to decide if it carried out an independent and fair hearing.
36. In my view the Council’s evidence to show how it considered Mr B’s appeals is not in accordance with the statutory guidance.
37. The lack of minutes from the appeal hearing and rationale in the Council’s decision letters about how it considered all Mr B’s points caused him uncertainty of not knowing whether the decisions were properly and independently reached. That was an injustice.
38. The Council did not signpost Mr B to the Local Government and Social Care Ombudsman in its stage two appeal response letter, according to statutory guidance. This is fault.

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Agreed actions

39. To remedy the outstanding injustice caused to Mr B and the fault I have identified, the Council has agreed to take the following actions within four weeks of my final decision:
• Carry out a fresh stage two appeal for Mr B, ensuring it records minutes of the appeal hearing, and the panel is independent of those who have had previous involvement with the appeals. It should provide the Ombudsman with the names of the panel members to enable us to assure Mr B the new panel is entirely independent from the original.
• Apologise to Mr B for the distress and uncertainty caused by the lack of rationale and detail in its stage two appeal response letter. Also, for not signposting him to the Local Government and Social Care Ombudsman in the response. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Provide relevant staff training in making and recording decision-making and the importance of writing decision letters to ensure they give clear reasons for the decisions made.
• Remind relevant staff of the importance of signposting to the Ombudsman at the end of the appeals procedure.
40. Following a fresh stage two appeal, if the Council decides to award Mr B’s two children with free school transport, the Council will reimburse Mr B for the fees he has paid taking his children to school since November 2023. This is to recognise any injustice caused to Mr B and his two children from November 2023 onwards due to the failure to put school transport in place earlier. If the Council decides to award Mr B’s two children with school transport, it will write to Mr B within one month of the panel’s decision with an offer of payment.

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Final decision

41. I have now completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice to Mr B. The action it has agreed to take is sufficient to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman