The Ombudsman's final decision
Summary: Mr E complained about the Council’s initial refusal of a concessionary bus pass for his daughter to travel to school, and delay in hearing an appeal which was upheld. We find no fault in the decision to refuse the bus pass, but we do fault the Council for poor customer service which contributed to the delay in the appeal and put Mr E to some unnecessary time and trouble. The Council has accepted this finding and agreed action set out at the end of this statement to remedy Mr E’s injustice.
The complaint
I have called the complainant ‘Mr E’. He complains the Council: refused a concessionary travel pass in July 2021 for his daughter to travel to her secondary school; delayed in dealing with an appeal about this decision; provided poor customer service when he complained about these matters; acted in a discriminatory way towards his daughter.
Mr E says as a result he has incurred expenses on bus fares for his daughter to attend school.
The Ombudsman’s role and powers
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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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)
How I considered this complaint
Before issuing this decision statement I considered: Mr E’s written complaint to the Ombudsman and any supporting information he provided; any communications between Mr E and the Council about the matters covered by the complaint which pre-dated our investigation; information the Council provided in reply to enquiries; any relevant law, guidance or policy referred to in the statement below.
I also gave Mr E and the Council a chance to comment on a draft decision statement where I set out my proposed findings. I took account of any comments they made before finalising this decision statement.
What I found
Chronology of events Mr E’s daughter was successful in an application to a selective school, located over two miles from Mr E’s home address. She started at the school in September 2021.
In June 2021 Mr E had applied for a concessionary bus pass for his daughter. He told the Council his daughter received free school meals.
In July 2021 the Council refused Mr E’s application. It explained its policy was to award concessionary bus passes to pupils receiving free school meals and who attended a school two to six miles from home - but only where there were not three or more suitable schools nearer to home. In this case the Council identified three schools it said were suitable under two miles from the home address.
Over the next three weeks Mr E contacted the Council four times. He twice advised he could not open an appeal form it had sent to him as an email attachment. He twice asked the Council to send him a form in the post. The Council records that it did so on the second request, which was in mid-August 2021. It asks me to note that throughout this time the appeal form was available on its website also.
In September 2021 Mr E’s daughter started at the school. Mr E says that because the family are on a low income they could not purchase a month or term bus pass for her. So they had to buy weekly tickets at a cost of £11.50 a week. Mr E also told me that his daughter could not walk to school because of a health condition that limits her mobility.
Mr E contacted the Council in mid-September 2021 to say he had submitted an appeal over two weeks ago and not heard anything. Two weeks later the Council acknowledged Mr E’s email and asked him to clarify how his appeal was submitted. I have seen no record he replied to that email but around a week later, in mid-October 2021 Mr E complained to the Council. He did not initially provide any detail about his complaint but then confirmed his complaint was about the failure of the Council’s education service to respond to his appeal.
The Council alerted its education service to the complaint. In early November 2021 the service contacted Mr E and said it had no record of receiving an appeal from him. It invited him to submit another appeal and forwarded a form for him to do so. I have seen no record Mr E replied to that email but during November and December 2021 Mr E contacted the Council again chasing up a reply to his complaint.
In February 2022 Mr E contacted the Ombudsman wanting to complain. We referred his complaint back to the Council to deal with. The Council decided to treat Mr E’s complaint to the Ombudsman as an appeal against its refusal of a concessionary pass. That appeal was heard in mid-March 2022 and the appeal was upheld. At the end of the month Mr E confirmed he had received a concessionary pass.
However, Mr E wished to continue his complaint and wrote to the Council in April 2022 explaining why he remained dissatisfied. Mr E wanted compensating for the bus fares he spent ensuring his daughter attended school before she got her concessionary pass. He said he believed the Council’s actions were discriminatory on grounds of race. He has also told me he thinks its actions may be discriminatory because of his daughter’s health condition.
The Council wrote to Mr E in May 2022. I summarise its response as follows: that it had not been at fault for refusing a concessionary pass originally; that it had no record of receiving any appeal from Mr E; but that it had exceptionally agreed to consider an out-of-time appeal against the refusal of the concessionary pass; and while the appeal was successful this did not entitle Mr E to receive compensation for any bus fares incurred before the appeal; that there was no reason to think its decision discriminatory; it had not asked for any information about his daughter’s ethnicity and so this was not a factor in any decision taken.
In responding to my enquiries the Council largely kept to the position outlined above. However, it said that it would make a ‘goodwill gesture’ to Mr E and pay him £186, equivalent to the monetary value of the concessionary pass over two school terms.
Findings
The complaint the Council refused a concessionary pass 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 and can include the provision of concessionary bus passes. 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 (this includes children receiving free school meals). (Education Act 1996, 508B(1) and Schedule 35B) Children aged between 11 and 16 and in the final category above can receive free home to school transport if: their school is between two and six miles away from home and is one their three nearest qualifying schools; or the school is between two and 15 miles and is the nearest school preferred on grounds of religion or belief. (Education Act 1996, Schedule 35B) I am satisfied the relevant part of the Council’s school transport policy is that quoted to Mr E in its letter of July 2021. I am also satisfied we would not find fault with that policy which is consistent with the law as I have summarised it in paragraphs 19 and 20 above.
Therefore the Council could refuse Mr E’s application because it understood there were three suitable schools closer to the home address. There was no fault in that decision.
The complaint about delays in dealing with appeals and the complaint about customer service I note that Mr E had to make several contacts with the Council in July and August 2021 before it has a record of posting him an appeal form. This was poor customer service. I will return to my thinking on this point below.
There is also no evidence which shows Mr E submitted an appeal in September 2021 or later. For example, an email or postal receipt. There is also no evidence that shows the Council received an appeal from Mr E. In the absence of such evidence, I cannot find the Council at fault for losing, or failing to process, an appeal from Mr E.
But that said, I consider Mr E’s appeal may have progressed sooner but for poor handling of his complaint. I do not consider the Council replied satisfactorily to Mr E’s initial complaint, made in October 2021. The contact it had with him in November 2021 was intended to be its response – as the Council explained it had no record of receiving an appeal and invited him to submit a fresh appeal. But the communication it sent him did not make this clear.
Further, the Council then missed the opportunity to clarify its position to Mr E when he contacted it again in November and December 2021. I am also not clear it explained to Mr E in March 2022 how it intended to deal with his complaint, when we invited it to consider the matter again.
The poor communications highlighted in paragraphs 23, 25 and 26 justify a finding of fault. There are two consequences to this which were Mr E’s injustice. First, Mr E was caused unnecessary frustration, time and trouble. Second, better customer service and complaint handling may have allowed the Council to consider Mr E’s appeal sooner. This is because it would have been clear to Mr E at the end of 2021 that no appeal was in hand, and he needed to chase that matter again and/or provide his reasons for this to progress. I consider Mr E may have spent money on transport for his daughter that could have been avoided for three to four months.
I find the Council’s offer to pay a financial remedy to Mr E to reflect the monetary value of a concessionary pass over two school terms will remedy some of the injustice set out in paragraph 27. I accept Mr E could not afford to buy his daughter a pass and had to spend money weekly on bus fares. But I consider the sum the Council has offered would be at least as much, if not more, than the cost of the bus fares over a three to four month period.
However, I consider any remedy should also reflect an amount for Mr E’s time and trouble. I therefore asked the Council to increase the sum offered to Mr E to £250, which it has agreed.
The complaint about discrimination I find no evidence to uphold this part of the complaint. As the Council has said, there is no evidence it knew of the ethnicity of Mr E’s daughter when it refused the application for a concessionary pass. Nor that this factor played any part in the decision.
There is also no evidence the Council knew of any health condition Mr E’s daughter has, which may have lent more weight to her appeal. So this again has not played any part in its decision.
Agreed action
The Council has agreed that in order to remedy Mr E’s injustice, within 20 working days of this decision it will: apologise to Mr E, accepting the findings of this investigation; and pay Mr E £250 in recognition of his injustice; a payment that would replace its offer of £186 and is not in addition to it.
Final decision
For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr E. The Council has agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.
Investigator's decision on behalf of the Ombudsman