Summary: The complainant complains that an appeal against a transport to school decision did not consider the issues she raised about why her son’s nearest school was not appropriate. Nor did it explain its reasoning to refuse her application. We uphold the complaint. The Council has agreed to our made recommendations.

The complaint

1. The complainant (Miss P) complains that an appeal against a transport to school decision did not consider the issues she raised about why her son’s (Q) nearest school was not appropriate. Nor did it explain its reasoning to refuse her application.
2. Miss P says the appeal’s decision has been devastating, due to the extra demands it has placed on her.

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The Ombudsman’s role and powers

3. 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 appeals panel made its decision. If there was no fault in how the panel made its decision, we cannot question the outcome. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), 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)
5. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

6. The information I have seen includes the documents Miss P supplied with her complaint and the documents the Council has around her appeal. I have also discussed the complaint with Miss P. I have sent my draft decision to Miss P and the Council and considered their responses.

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What I found

Legal and administrative background

7. 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)

8. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support.
9. The statutory guidance recommends councils adopt a two-stage appeal process. It recommends at stage two that an independent appeal panel consider written and verbal representations. And the panel sends the parent a detailed decision sent setting out:
• the nature of the decision reached;
• how the review was conducted;
• what factors were considered; and
• the rationale for the decision reached.

(Department of Education, Travel to school for children of compulsory school age statutory guidance 2023, Part 5)

10. The Council’s “Home to School Travel Assistance Policy” says:
• an appeal panel would consider written and verbal representations from the parent and officers and would review the original decision;
• the panel would send a parent a “detailed written outcome setting out the nature of the decision reached [and] detailed reasoning for how the decision was reached…”
11. Our guidance, the Principles of good administrative practice, says authorities should:

• keep proper and accurate records; and
• clearly explain the rationale for decisions and recording them.

What happened

12. Q is a boy with special educational needs (SEN). Miss P applied for him to attend the same secondary school as his elder brother (School 1). She was successful in the application, so Q was due to start attending School 1 from September 2024.
13. Miss P applied for transport to take Q to School 1. The Council refused the application, as School 1 was not the nearest school to the family’s home. Miss P appealed.
14. At the first stage, the Council did not uphold the appeal.
15. Miss P asked for an appeal at the second stage of the Council’s process. Her appeal set out why their nearest school was not suitable for Q. She also gave reasons why School 1 was a suitable school for him, given his SEN.
16. The stage two appeal panel met. Miss P says she was not invited to attend this panel. She says it would have been unlikely that she could have attended if she was invited, due to her other caring responsibilities. She notes that she was later invited to an appeal for one of Q’s siblings.
17. A few days after the appeal panel met it wrote to Miss P. It said it had decided to not uphold the complaint because School 1 was not their nearest suitable school. It noted that if Q had been attending his nearest school it would have assessed the application on his needs. But it had not been able to do that because School 1 was not the nearest school (although it understood that School 1 was Miss Q’s preference).
18. Miss P complained to the Ombudsman. We asked the Council for the substantive appeal documents, including any notes/minutes from the meeting. It sent us the notes of the stage two appeal panel hearing. In full these say:

“No evidence to suggest why parent cannot take

Not nearest qualifying school

School is p[a]rental preference

Response letter to say something about if NQS was under distance then”

Analysis

19. Both the statutory guidance and the Council’s own policy give details of how an appeal should be conducted and the information the panel should provide the parent. My decision is the panel’s consideration of Miss P’s appeal fell short of those provisions and so was fault for the following reasons.
20. The decision letter stated School 1 was not the nearest suitable school. It gave no indication of how the appeal considered the points Miss P raised, including considering whether the points Miss Q raised might mean School 1 was the nearest suitable school.
21. Nor were the minutes of the panel detailed enough. They did not explain who was there, what was presented, whether there was a vote, or any consideration of the points Miss P raised.
22. I would have expected to see the appeal panel’s reasoning about whether the nearest school was suitable for Q, taking account of what Miss P had told it about his SEN. I would also have expected to see, even if the panel did decide the nearest school was suitable, some consideration of whether there were reasons to exercise discretion to allow transport for Q to attend School 1.
23. Miss P says she cannot remember being invited to the appeal panel. The Council has not provided any document showing it did invite Miss P to the hearing. That was fault. But I do not intend to investigate this further because:
• of the limited injustice as Miss P says she would not have been able to attend; and
• the likelihood this is not evidence of a systemic fault, as Miss P reports she was invited to attend a hearing for one of her other children.
24. The faults I have found mean the appeal panel cannot provide evidence it conducted the appeal in an impartial way by considering Miss P’s evidence and coming to a considered decision. So it did not follow the guidance outlined in our “Principles of good administrative practice” (see paragraph 11).
25. The faults will have caused Miss P distress, uncertainty and frustration.
26. In response to my draft decision, the Council advised it had:
• changed the wording of its letters acknowledging receipt of second stage appeals. The letters now give more details about how an appellant can let the Council know if they wish to present their case to a panel;
• had discussions with appeals panel clerk and panel members “to ensure clarity of proceedings and considerations”;
• developed a template to record detailed notes of appeal hearings; and
• developed a template agenda for appeal hearings and panel deliberations.

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Agreed action

27. To remedy the injustice caused by the faults identified, the Council agreed that, within one month of the final decision it would:
• apologise in writing to Miss P for the distress, uncertainty and frustration caused for failing to conduct the appeal process in line with statutory guidance and its own policy. 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;
• arrange a new stage 2 appeal panel to consider Miss P’s appeal. It will ensure Miss P is allowed an opportunity to present any further evidence and to give verbal representations.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I uphold the complaint. The Council has agreed to my recommendations, so 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