The Ombudsman's final decision:
Summary: There were failings in the way the Council considered an appeal for travel assistance to college. The Council has agreed to carry out a fresh appeal, make a payment to reimburse the complainant’s travel costs if the new appeal is successful and provide training to its panel members.
- Mrs B complains that the Council unfairly discriminated against her daughter, S, who is 18 years old and blind, when it refused to provide assistance with travel to college.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’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
- I have:
- considered the complaint and the documents provided by the complainant;
- considered the comments and documents the Council has provided following a colleague’s enquiries of the Council;
- considered relevant policies, guidance and legislation; and
- given the Council and the complainant the opportunity to comment on my draft decision.
What I found
- Councils do not have a duty to provide free transport for young people of sixth form age in education or training. This means students aged 16 to 18. It also includes 19-year-olds if they are continuing on a course started before the age of 19. However, councils must publish an annual transport policy statement setting out the arrangements for the provision of transport that they consider necessary to help students of sixth form age to attend education or training. Arrangements for young people with learning difficulties or disabilities must be explicitly set out in the policy.
- The government has issued statutory guidance ‘Post-16 transport to education and training’ that councils must consider in deciding their policy. This says they must take account of various factors, including:
- the needs of those who could not access education or training if no arrangements were made – they should consider the needs of the most vulnerable or socially excluded and young people with learning difficulties and disabilities;
- the distance and journey time of the place of learning from the home – the statutory walking distance for children of compulsory school age can be used as a benchmark. Councils should consider the impact of a learning difficulty or disability on a young person’s ability to walk the distance, and the nature of the route. As with children of compulsory school age, young people should be able to reach their place of learning without undue stress.
- Mrs B’s daughter, S, is 18 years old and registered blind. S has an Education, Health and Care (EHC) plan which names the college she attends and states that she will need assistance with travel to college.
- Mrs B applied to the Council for travel assistance. The Council’s Transport Policy statement says that to be eligible for travel assistance, a learner must be:
- aged 16-19 with a Statement of Special Needs or an Education Health and Care plan and attending a college or a special school in educational Year 12, 13, 14; and
- attending their nearest college or school 6th form providing facilities and a study programme suitable to their needs, and
- that school or college is beyond 3 miles from their home.
- The Post-16 transport to education and training: Statutory guidance for local authorities says:
“Local authorities must consider distance in determining eligibility for support with transport.
The statutory walking distance of 3 miles to school (along the nearest available route) for those of compulsory school aged 8 and over is set out under section 444(5) of the Education Act 1996. This can be used as a benchmark by local authorities in defining the distance a young person might reasonably be expected to walk to access education or training.
In determining whether transport arrangements are necessary, local authorities will want to take into account other factors, such as the impact a learning difficulty or disability may have on a young person’s ability to walk this distance, and the nature (including safety) of the route, or alternative routes, which a young person could be expected to take.”
- I have considered the Council’s decision letters and the appeal panel’s notes. They do not include any consideration of how S’s disability would impact on her ability to walk 1.9 miles to college. This was fault. On the basis of the evidence provided by Mrs B, I consider it likely that the panel accepted that it would be unreasonable for S to walk to college.
- The Council decided that S should not receive travel assistance because she receives a Personal Independent Payment (PIP) which is used to fund a mobility car. This is unfair because the Council provides travel assistance to young people with an EHC plan who live more than 3 miles from the college, regardless of whether they are in receipt of a PIP, or whether they use it to fund a mobility car. The 3-mile limit in the Council’s policy is clearly based on the statutory walking distance. If it is accepted that it is unreasonable for S to walk 1.9 miles to college, I can see no justification for treating her application differently to applications from other young people who cannot walk to college because they live more than 3 miles away. The Council did not treat S’s application fairly. This was fault.
- The Council will carry out a fresh appeal within eight weeks. If the Council upholds the appeal, it will also make a payment equivalent to £7.90 for each of the days S has attended college without travel assistance since the original appeal panel hearing in September 2017.
- Within eight weeks, and before any further appeals are heard, the Council will provide training to appeal panel members. The Council will ensure panel members are aware of the failings identified in this case to prevent similar failings in future.
- I have completed my investigation and uphold Mrs B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman