Summary: We found no fault by the Council on Mrs M’s complaint about it wrongly refusing her daughter travel assistance. The Council correctly assessed her application, and the appeal panel correctly considered all the evidence submitted before deciding to refuse it.

The complaint

1. Mrs M complains about the Council wrongly refusing her daughter travel assistance after the school she applied for closed and she chose a school which was not her nearest under its policy; as a result, this causes her stress and financial hardship as she now meets the cost of travel to school.

Back to top

The Ombudsman’s role and powers

2. 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)
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 there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

Back to top

The law and relevant guidance

5. The Education Act 1996 ('The Act') says councils must provide free school transport to eligible children (section 508B). The term 'eligible' means children of compulsory school age who meet certain criteria set out in Schedule 35B of the Act.
6. ‘Eligible’ children fall into four categories:
• Children with special educational needs or a mobility difficulty who cannot reasonably be expected to walk to school even though the school is within the statutory walking distance.
• Children whose route to school is unsafe.
• Children who live outside the statutory walking distance to school (currently 2 miles if under 8 years and 3 miles if between 8-16 years).
• Children from some low-income families.
7. Councils have discretion to make provision for non-eligible children where they consider it 'necessary' to facilitate the child's attendance at school (section 508C). A common situation where this may arise is where a child has a disabled parent.

Back to top

Council admission policy (2022)

8. Applications for places are made from 1 September 2021 to 1 November 2021. The Council offers places on 1 March 2022.
9. Parents are advised to consider whether they intend to apply for transport assistance when selecting their preferences.
10. It explained eligibility for free transport to school means an applicant would not normally receive it if:

• they have not named the nearest school to their home as one of their preferences;
• they have named the nearest school but not as one of their highest preferences;
• they do not live over the statutory distance from the school.

11. Transport is only provided to the nearest appropriate school where it is more than three miles from home and, in some parts of the county, this may be a school located in another education authority outside of Kent.
12. Applicants are advised to contact the transport team if they have further questions. It also gives a link to its Home to School Transport Guidance.

Back to top

Home to School Transport Guidance (2022/23)

13. Free transport is only available where a student fulfils strict criteria, so most applications for free transport the previous year were unsuccessful, for example. Parents need to understand whether they meet the criteria for free school transport before taking the time to make an application.
14. To qualify, a child must attend their nearest appropriate school for transport purposes and for that school to be over the statutory distance from their home. For children over 8 years of age, this means the school being more than three miles from their home.
15. The Council will identify the nearest appropriate school through the shortest available route from the permanent main residence and the school. All distances are measured using its own software. This means all children are assessed consistently in the same way.
16. When considering which school is a child’s nearest appropriate school for transport, the Council only considers:

• Age appropriateness: relating to attendance at a primary or secondary school.
• Ability appropriateness: relating to attendance at a mainstream or special school.

17. The policy lists areas where parents should pay particular attention to schools outside the Council’s borders but says this was not an exhaustive list. All parents living near to another local authority area should ensure they find out which schools are their nearest before making their school admission application if free transport is important.
18. A younger sibling will not necessarily receive transport assistance where they attend the same school as an older sibling. Each child is assessed against the policy.

Back to top

How I considered this complaint

19. I considered all the information Mrs M sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Mrs M and the Council.

Back to top

What I found

20. In 2021, Mrs M applied for a Year 7 place for her daughter, N, at School A which was about one mile from home. Her eldest daughter already attended the school.
21. Shortly after, the Council told her the school was to close which meant she had to name another school as her preference on the application. It also said she could change or add additional preferences provided she did so before 10 December. Mrs M sent her application in December. She complains the Council gave her no information about the nearest schools or schools that might be closer but in a neighbouring council’s area.
22. Her eldest daughter moved to School B and Mrs M decided to apply for N to go there too. Her eldest daughter was entitled to travel assistance (free school to home transport) because she transferred there from School A. Mrs M also notes the eldest daughter was offered places at School C and School D, but N was not. She did not name any other school on her application for a place including Schools C and D.
23. Although the Council offered N a place at School B, it refused to provide travel assistance. The email sent to Mrs M telling her this said it automatically checked N’s eligibility against policy. She was not eligible. It did not give a reason for this decision.
24. Mrs M applied for travel assistance anyway, but the Council refused her application because School B was not N’s nearest school. She could have applied for School E which, while in another council’s area, was closer.
25. Unhappy with this decision, Mrs M appealed. She argued: she was unaware School E was in another council’s area or that it was even a secondary school; children living nearer to it than her were not offered a place; N would need to get two early buses to get to School E which would be beyond her; School B was the right school for her because it has past experience with the condition N suffers from; parents of children at School A were given the option of applying for Schools C and D when told about its closure, both of which were further away than School B.
26. At the appeal, the Council noted School B was 9.754 miles from N’s home. It refused her application because the nearest appropriate school was School E at 8.890 miles. Mrs M had not named School E as her preferred school. This meant she did not meet the criteria set out in its own policy for travel assistance. Officers believed School E ‘may no longer’ have any spaces in her year group. The Council also gave the panel information about the costs implications of awarding her travel assistance.
27. In September, the appeal panel rejected her appeal. It explained it took account of the Council’s policy, along with Mrs M’s submissions. Having done so, it decided her case not strong enough to allow it to exercise discretion to make an exception to the policy. The panel also took account of the cost implication of awarding travel assistance. It also noted Mrs M’s distances from home to Schools C and D did not match those from the Council which used its own software on all applications.
28. I have seen an undated email from the neighbouring council about School E sent to Mrs M. This says had she applied for the 2022 intake, she would have been offered a place based on distance. This would depend on her applying on time though. The notes of the appeal hearing show this was evidence before the panel.

My findings

29. I found no fault on this complaint. In reaching this conclusion, I took the following in to account:
1. Mrs M’s initial preferred school was due to close but the Council wrote to her explaining this and the need to name another school in its place. While this email was sent beyond the date set for receiving submissions, the Council clearly decided applicants needed more time to consider an alternative school and gave them about a month to name one.
2. Mrs M named School B. She did not name any other preferred schools including School C and D. She sent this to the Council before the deadline and before the national offer day.
3. While the email the Council sent could have included a link, or reference to the admission policy and transport policy to remind her of the criteria for travel assistance, I am not satisfied this was fault. This is because this information was provided when Mrs M made her initial application.
4. Although another email failed to explain why N was not eligible for travel assistance, this caused Mrs M no injustice as she went on to apply for it anyway.
5. The Council offered N a place at School B on the national offer day.
6. Mrs M says the Council offered places at Schools C and D to pupils already attending School A at the time it closed. Mrs M had not applied for a place at either of these schools. What the Council previously offered to children already at School A, therefore, had no relevance to Mrs M’s application for admission or for her application for travel assistance.
7. The Council refused her application for travel assistance and after challenging it, the appeal panel also refused it. I am satisfied there is no evidence of fault in the way these decisions were reached. They were reached in accordance with the law and the Council’s own travel assistance policy. Mrs M’s application failed because she had not applied for a place at her nearest appropriate school. School B was not her nearest appropriate school, School E was. She did not meet the criteria for assistance.
8. I considered Mrs M’s arguments she should have been told which school was her nearest one. I am satisfied the information the Council gave her to allow her to apply for admission, alerted her to the need to ensure she checked to see which was her nearest school. It also alerted her to the possibility the nearest school might be in another local authority area. Applicants were also invited to contact the transport team by the guidance for help.
9. Mrs M argues School E was full and even parents living closer than she does did not receive a place. The copy email Mrs M sent from School E, although undated, confirms had she applied for a place there, it was likely N would have received a place. This was because the distance to her home was within the distance it allocated places to by some considerable margin. What this means is at the time of her application for admission, had she named School E, it is highly likely N would have received a place there which would have meant she also would have been eligible for travel assistance.
10. The evidence shows the panel correctly considered the law, the Council’s policies, along with Mrs M’s evidence sent to support the appeal, as well as the cost implication of awarding N travel assistance.

Back to top

Final decision

30. We found no fault on Mrs M’s complaint against the Council.

Back to top

Investigator's decision on behalf of the Ombudsman