The Ombudsman's final decision
Summary: We will not investigate this complaint about home to school transport. This is because there is not enough evidence of fault by the Council. It is also reasonable for the complainant to use the Council’s own school transport appeals process.
The complaint
The complainant, whom I shall refer to as Mrs X, complained about a lack of school transport to her preferred secondary school.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or we cannot achieve the outcome someone wants, or it would be reasonable for the person to ask for an organisation review or appeal. (Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
What I found
Home to School Transport Councils have a duty to provide free transport to school to ‘eligible’ children. Eligible children include: Children attending the nearest qualifying school to home where the distance to school is more than the statutory walking distance (two miles for children up to the age of eight, and three miles for children aged eight and over).
Children attending the nearest qualifying school to home who cannot walk to school, accompanied as necessary, because of the nature of the route.
Extra help is also available to children from low-income families. This includes transport to the nearest suitable school on the grounds of religion or belief if it is between 2 and 15 miles from home.
The Department for Education has published statutory guidance on home to school transport. We expect councils to follow this unless there is a good reason not to.
The guidance says that “wherever possible, local authorities should ensure that transport arrangements support the religious or philosophical preference parents express.” But the guidance also recognises: That under the European Convention on Human Rights parents do not enjoy a specific right to have transport arrangements made to and from a school with a religious character.
That the Equality Act 2010 does not apply to the exercise of an authority’s functions in relation to transport.
It is for local authorities to decide what discretionary transport they provide – so transport to children not considered ‘eligible’.
Councils must apply their published policy when deciding entitlement to transport assistance. But they also have the discretion to consider exceptional circumstances. The guidance makes it clear councils must have a review or appeal process parents can use to challenge decisions about school transport.
Background
Mrs X’s eldest child (B) attends a secondary school (School Z). This is a faith school and is in a different council’s area. B has previously travelled to School Z on a commercial bus service. Mrs X paid for B to travel on the service because they had no entitlement to free transport to School Z. This is because while School Z is over the statutory walking distance of three miles, it is not the closest school to Mrs X’s home.
Mrs X’s younger child (C) started at School Z in September 2022. Mrs X applied for C to attend School Z on the basis commercial transport would be available.
At the end of the 2022 summer term, the operator which provided transport to School Z, said it would be withdrawing the service because it was no longer commercially viable.
Mrs X has been in contact with the Council about transport to School Z. In its responses to Mrs X the Council said: It only has a duty to provide transport to eligible children, including those who qualify for extra help because they are from a low-income family.
In September 2012 the Council’s policy changed so it no longer provided free transport to faith schools unless the child was ‘eligible’.
The Council had continued to subsidise some transport services to faith schools to help children who were already attending them. This was reviewed and withdrawn, with the process starting in 2014. Several schools started contributing toward transport.
School Z declined to contribute toward the cost of transport. In 2016 a commercial operator took over the service at the heart of Mrs X’s complaint.
The operator gave notice in July 2022 because it no longer wanted to operate the service. It met the notice period required.
The Council did not have the resources to support transport to faith schools across the borough. It did, however, fund home to school transport for all eligible pupils to meet its statutory duty.
Assessment We will not start an investigation into Mrs X’s complaint.
The Ombudsman is not a right of appeal for people who disagree with a council’s decision. We can only question a council’s decision in certain circumstances. For example, if it is incompatible with statutory guidance, or there was a clear fault or flaw in the way the decision was reached.
Transport to faith schools for children not considered ‘eligible’ was withdrawn by the Council from 2012. Mrs X has raised some concerns about this process, but the changes were made ten years ago. There is also not enough evidence of fault in the way the decisions were taken for us to question them. The changes to the Council’s transport policy are similar to those made in most other councils.
A commercial service then operated to School Z because the Council no longer subsidised the transport. It was not fault by the Council which led to the service ending in 2022. That was a decision by the commercial operator.
While I understand how frustrating this must be for Mrs X, the Council is under no duty to provide an alternative service to School Z. If we investigated, we could not say the Council has acted with fault by failing to provide alternative transport. An investigation would not therefore be appropriate.
Mrs X also has the option to ask the Council to provide her children with free transport to School Z – rather than a replacement, paid for service. If the Council refused, she would have the chance to appeal the decision and present her case.
If Mrs X’s appeals were refused, and she remained unhappy, Mrs X could bring her complaint to the Ombudsman. We could then consider how her application and appeal had been dealt with. But it would not be for us to say if transport should be provided. Only if there was any fault in how the decision had been reached. It is reasonable for Mrs X to use the Council’s own appeals process and so we will not investigate her complaint.
Final decision
We will not investigate Mrs X’s complaint. This is because there is not enough evidence of fault. It is also reasonable for Mrs X to use the Council’s own appeals process.
Investigator's decision on behalf of the Ombudsman