Ombudsman issues further report after Medway council fails to implement Ombudsman's recommendations

The Local Government Ombudsman has issued a rare further report stating their recommendations were not implemented by Medway Council and the correct process to disagree with the recommendations was not followed.

The Ombudsman decided in September 2017 the council should provide school transport for a girl in its area because she was attending the nearest suitable school with places available.

The investigation found Medway’s Home to School Transport Policy did not comply with statutory guidance because it did not properly consider whether places were available at the nearest school.
Medway Council’s Cabinet considered the report but did not implement the Ombudsman’s recommendations, which the council had previously accepted. Medway made the decision based on external legal advice.

According to the Ombudsman’s report, by law, the council cannot now refuse to implement the recommendations because it disagrees with the Ombudsman’s original findings. The only way to have challenged the recommendations was by judicial review of the initial decision made in September 2017.

Michael King, Local Government and Social Care Ombudsman, said: “As the council decided it was not appropriate to challenge us by judicial review and it is now out of time to do so, it must accept our findings. Its response suggests it is attempting to reject the findings in our original decision, rather than the recommendations in the subsequent public interest report.

“The council will find, by looking at our casework, it is the exception to the rule in taking this procedurally flawed approach. I therefore call on it to familiarise itself with its duties and to put in place the changes I have recommended to ensure it complies fully with the process.”

Cllr Josie Iles, Portfolio Holder of Children’s Services at Medway Council, says Medway sought independent legal advice which found that the council was correctly following the Department for Education’s guidance on assessing school transport applications.

She said: “We have apologised to the complainant for any distress this process may have caused. We feel we have worked closely with the Local Government Ombudsman since this complaint was raised in 2016.

“During this time, we have consulted with the Department for Education on our school transport policy and they did not raise any concerns. We also sought independent legal advice and this found we were correctly following the Department for Education’s guidance on assessing school transport applications.

“However, we respect the Ombudsman’s conclusions and will ensure the recommendations are actioned.”

In the initial September 2017 dispute, the council was asked to provide transport for the girl, reimburse her mother’s incurred costs taking her to school and review its school transport policy.

The council initially accepted the Ombudsman’s recommendations. It then decided not to revise its policy or backdate payment for some of the transport costs because, it argued, its transport policy is lawful. Medway did agree to provide transport from September 2017 because a previously unavailable footpath had come into use which meant the girl was now attending the nearest school.

When the council failed to comply with the remedy it had agreed, the Ombudsman issued a public interest report in March 2019. In that report, the council was criticised for not amending its policy or backdating the transport costs incurred. Medway was asked to implement the remedy it had already agreed and make an additional payment to the family for the delay.

Adam Carey