The Ombudsman's final decision:
Summary: The Council is not at fault for the way in which it considered and rejected Mr C’s application for funding for school transport for his 16-year-old son.
- The complainant, Mr C, complains that the Council was at fault in refusing to fund his son, D’s, transport to and from sixth form college.
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 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 spoke to Mr C on the phone. I considered the Council’s responses to our enquiries. I considered the law and the Council’s relevant policies.
- I sent a copy of my draft decision to Mr C and the Council and invited comments.
What I found
- The Council has a duty to publish information about financial help available to learners of sixth form age on its website, which it has done.
- The Council’s Education Transport Policy 2017/18 for Post 16 Learners with an Education Health and Care Plan for (SEN) says;
- The Council will only consider providing assistance with transport costs in exceptional circumstances
- There is no automatic entitlement to assisted transport
- If eligible, transport will only be provided to the nearest education provider which the local authority deems able to meet the student’s identified needs.
- The Department for Education’s Post-16 transport to education and training – statutory guidance for local authorities says, at paragraph 21, ‘Young people with an EHC plan will have an institution named in the plan at Section 1. There is no entitlement to transport to and from this named provider and transport should only be named in an EHC plan in exceptional circumstances. Local authorities should ensure during EHC plan discussions that parents are made aware that transport support will be considered in accordance with the local authority’s own post-16 transport policy’.
- D is 16. He has dyslexia and learning difficulties. In early 2017, the Council prepared an education, health and care plan (EHCP) for him. At this point, D did not have a place in a sixth form college and so the Council prepared a draft EHCP with no college named in it.
- D applied to attend several colleges. One, College X, was 35 miles from the family home. D applied for a place on a specialist, computer-based course. The college offered him a place in April 2017.
- Mr C asked the Council to insert the name of College X on the EHCP as the college D intended to study at.
- In May 2017, Mr C emailed the Council and asked how he could apply for transport to the college. A Council officer told him he could apply on the website.
- In July 2017, Mr C applied to the Council for funding to take D to and from College X. He said D would have to take a taxi to and from college each day as he would become anxious and get lost if required to take public transport.
- The Council considered Mr C’s application. It refused on the basis that there were closer colleges which could cater for D. Mr C said that the more local colleges did not offer the course D wanted to attend. He also said that D would require occupational therapy which was offered by College X.
- The Council maintained its refusal. Mr C issued a stage one Educational Transport Appeal. In it, he said;
- The Council had sent D’s EHCP to local colleges without his permission. These local colleges said they could accommodate him but did not offer the course he wanted. The Council had only sent the EHCP to local colleges so that they could reject the application for transport;
- The local colleges said that they could cater for D but had never met him so could not be sure that they could meet his occupational therapy and speech and language therapy needs;
- One of D’s main needs was to study the course he wanted to study. This was only available at College X. He said that the courses offered at the local colleges were similar but not what D wanted; and
- College X was named on the EHCP and therefore the Council had a statutory duty to provide transport.
- The Council did not have a duty to provide transport to students aged over 16, only a discretionary power;
- The Council’s post 16 Transport Policy states that the council would only consider providing assistance with transport very rarely;
- It would only provide assistance with transport to the closest available college;
- SEN staff at the Council told Mr C that this was the case in December 2016;
- Council staff also told D that the Council would only provide transport to the closest available college during his annual review;
- The Council was obliged to investigate local providers carried out an investigation and found there were closer colleges; and
- College X was named in the ECHP to comply with parental preference but the Council did not have a duty to pay for transport to that college.
- The Council said that the preference to attend College X was a parental one. It was not. It was D’s preference;
- No local college provided the course D wanted so he had to go to College X;
- The Council had failed to provide him with the responses from the local colleges which said they could cater for D. Therefore, he suspected that these responses did not exist. He also did not believe that the colleges could, in fact, meet D’s very specific needs;
- Mr and Mrs C were willing to contribute towards the cost of the transport; and
- D’s disability meant that he could not read road signs and would get lost as he would be required to change if he took the train, it was impossible that he should be asked to travel independently.
- There was no statutory requirement to provide post 16 transport;
- D had not obtained the grades required to attend the Level 3 course he originally applied for at College X. Instead, he had been offered a related Level 2 course. This was very similar to courses on offer at more local colleges;
- If D was only able to travel to College X by taxi, the committee was concerned that this could add three hours of commuting time to his college day;
- D stated at the hearing that he was happy to travel for three hours a day;
- The actual travel time between home and College X is two hours per day;
- Mr C calculated the actual probable cost of the transport and found that it would be likely to cost £13,000, not £18,000 a year; and
- Mrs C has had to put her career on hold to drive D to and from College X.
Was there fault causing injustice?
- There was no fault and no injustice. The Council applied its policy. It considered fairly whether the circumstances were sufficient to justify departing from the usual policy and decided they were not. The Ombudsman cannot intervene.
- The Council’s appeals process was fair and transparent and the decision reached was a rational one in line with national and local policy and guidance.
- I do not accept Mr C’s criticisms of the way in which the Committee considered his stage two appeal, which are the basis of his complaint to the Ombudsman. Dealing with his points in turn, I find;
- The fact that D was prepared to spend three hours travelling each day, does not mean that it might not be tiring for him if he did so. Mr C has said, in response to my draft decision, that, in fact, D is doing well at College X, to which he travels with his mother every day. Again, this does not mean that the Council was wrong to bear the length of the journey in mind, among other factors, when making its decision.
- An internet search shows projected road journey times, at the beginning and end of an academic day, between the family home and College X are between 55 and 90 minutes each way daily. This is in line with the Council’s submissions. The committee would have been well aware that journey times, particularly in densely populated areas, are inherently unpredictable. There was a danger D would spend three hours travelling on some days;
- I do not accept it would make any difference to the committee’s decision if the annual taxi cost had been stated as £13,000 rather than £18,000. Even the lower figure is many thousands of pounds more than the cost of transport to the nearest college. The Council has a duty to limit cost to the public purse. Its general policy is only to pay transport to the closest college.
- The Council was not at fault. I intend to close my investigation.
Investigator's decision on behalf of the Ombudsman