Summary: The complaint concerns the Council not providing transport to an apprenticeship for Mr C, who has special educational needs. The Council was at fault for not properly considering whether it had a social care duty to arrange transport. This leaves Mr C and his mother with avoidable uncertainty about whether the difficulty they experienced arranging transport might have been lessened or avoided. At my recommendation, the Council agreed to apologise, pay Mr C and his mother £200 each and review what happened here.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complains the Council has wrongly refused to provide transport help for Mr C’s apprenticeship. Mrs B reports as a result, Mr C is experiencing unnecessary anxiety and his family is experiencing inconvenience.

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What I have investigated

2. I investigated points that were in the Ombudsman’s jurisdiction and that I considered directly relevant. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

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. 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)
5. 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)

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How I considered this complaint

6. I considered the information Mrs B provided. I made written enquiries of the Council and considered its responses. I gave Mrs B and the Council the opportunity to comment on two drafts of this decision and took account of their comments. I then made further enquiries of the Council and considered its response. I also considered the relevant law and guidance.
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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What I found

8. The Council's responsibilities towards a person with special educational needs and disabilities can continue after the person leaves school, up to the age of 25, if the person is in training or education. Depending on the circumstances, the Council's duties might include helping with transport to training or education.
9. Mr C is an adult aged under 25. He has special educational needs and disabilities. His mother, Mrs B, complains on his behalf. In 2018, Mr C was due to leave school and start an apprenticeship that would involve spending four days a week in a workplace and one day each week at college. The workplace is over ten miles from Mr C’s home. Mr C could not yet drive then and he reported matters related to his learning difficulties prevented him using public transport.
10. Mrs B asked the Council for help with transport so Mr C could use a taxi for some of his journeys to and from the workplace. The family said it would make separate arrangements for the other journeys, including on the day Mr C attended college. The Council refused. Mrs B says getting Mr C to and from his apprenticeship without Council help caused him and his family anxiety, inconvenience and expense for several months before Mr C learned to drive and could drive himself.

Mr C's EHC Plan

11. Mr C's education, health and care (EHC) plan would normally have been finalised before he started his apprenticeship in September 2018. However, it was not finalised until November 2018, after the apprenticeship started. There has been no complaint to the Council about this and I understand Mr C does not wish to complain about this point.
12. Anyway, the evidence suggests the Council knew and agreed before September 2018 that Mr C would begin this apprenticeship. The final EHC plan showed he was doing an apprenticeship with college and workplace elements.
13. The Council is responsible for ensuring someone receives the provision in the EHC plan though it does not automatically follow the Council must arrange transport for every adult with an EHC plan. Where an adult has an EHC plan, their parents have no legal responsibility to arrange transport.
14. I have considered various of the Council’s responsibilities that might be relevant to Mr C’s request for transport to his workplace.

The Council’s role under legislation and guidance on transport to education and training

The Council’s duties

15. The Education Act 1996 and the associated statutory guidance set out the Council’s duties about transport provision for people attending education and training. The relevant statutory guidance at the time was Post-16 transport to education and training (October 2017).
16. Much of the law and statutory guidance concern children or to people of sixth form age. Mr C is neither as he passed his 19th birthday before beginning his apprenticeship. Therefore many of the Council’s legal duties about transport to education and training do not apply to Mr C. For the purposes of this Act, Mr C is an ‘adult’ and a ‘relevant young adult’ (the latter is an adult with an EHC Plan).
17. For adults, the Council ‘must make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct’ for certain purposes. (Education Act 1996, section 508F (1)) Those purposes are:
• The ‘first purpose’ is to facilitate the attendance of adults receiving education at institutions maintained or assisted by the authority and providing further or higher education (or both), or within the further education sector. (Education Act 1996, section 508F (2))
• The ‘second purpose’ is to facilitate the attendance of relevant young adults receiving education or training at institutions outside both the further education sector and the wider higher education sector, but only in cases where the Council has secured for the adults in question the provision of education or training at the institution in question, and the provision of boarding accommodation. (Education Act 1996, section 508F (3))
18. The ‘second purpose’ does not apply to Mr C as the Council does not provide boarding accommodation for him. So the ‘first purpose’ above is the only adult transport duty that might apply. I have considered whether it applies to Mr C.
19. The law distinguishes between education and training here. The ‘first purpose’ only creates a duty for adults receiving education, not training (unlike the second purpose, which covers both). As explained above, Mr C sought help with transport to his apprenticeship workplace. The workplace part of an apprenticeship is generally understood as training rather than education.
20. The first purpose also only applies to facilitating attendance at further education and some higher education institutions. The apprenticeship workplace is neither.
21. Therefore I do not find the Council had a legal duty under section 508F to consider making transport arrangements for Mr C’s travel to and from his apprenticeship workplace. So I do not fault the Council here.
22. The Council must also publish a transport policy statement (TPS) each year setting out its transport arrangements for, among others, adults with EHC Plans. My first draft decision considered the contents of the Council’s TPS. However, I do not now believe the Council had a duty to consider making any transport arrangements for Mr C to get to his workplace. So the contents of the Council’s TPS are no longer significant to my decision-making on this complaint. So I need not consider the TPS’ contents further.

The Council’s discretionary powers

23. Even if the duty described in paragraph 16 above does not apply, the Council has discretion to pay all or part of the reasonable travelling expenses of an adult:
• Receiving education or training at further or some higher education institutions, or
• Receiving education or training at an institution outside those sectors, where the Council has secured for the adult the provision of that education or training and the provision of boarding accommodation. (Education Act 1996, section 508F(8))
24. The second bullet-point above does not apply to Mr C as he does not receive boarding accommodation. So, in Mr C’s case, it seems the Council only had the limited discretion described in the first bullet-point above. That concerns education or training at college. We do not consider it applies to Mr C’s workplace. So we consider it unlikely the Council had discretion to pay towards Mr C’s transport costs to his workplace.
25. Even if our understanding in the previous paragraph is wrong, the Council anyway acted as if it had discretion and it considered the merits of Mr C’s case. If that was an error, it was in Mr C’s favour so we do not criticise it.
26. The Council considered Mr C’s request in its first decision about transport, in two reviews of that decision and during its complaints procedure. That consideration involved: taking account of the Council’s policy, which did not include providing transport for circumstances such as Mr C’s; recognising Mr C’s difficulties affected his ability to use public transport and asking for any medical evidence about this (which Mrs B then sent); and stating the Council had considered all the information including from Mr C’s doctor but had decided Mr C’s circumstances did not satisfy the Council’s policy for transport provision and there were insufficient grounds to make an exception.
27. This suggests the Council considered the matter more than once, taking account of relevant points. So I consider the Council properly reached its decision not to use any discretion it might have to arrange transport to Mr C’s workplace. As paragraph 4 explained, I cannot criticise a decision that was properly reached, even if people disagree with that decision and even if a different decision might have been possible.
28. My first draft decision expressed concern that the wording of the Council’s TPS implied it would only consider transport assistance for someone who could not use public transport due to physical disabilities affecting mobility. However, after further consideration, I now believe the wording of the Council’s policy on transport assistance is more relevant than the TPS. The policy on transport assistance says the Council can help learners aged up to 25 with an EHC plan if a medical professional ‘gives proof in writing that the student cannot use existing public or college transport’. So the substantive policy does not restrict help just to people with particular kinds of disability.
29. The evidence suggests the Council considered all the information supplied about why Mr C would not use public transport between home and his workplace. It did not just consider whether there was a purely physical mobility disability. The Council did not suggest the nature of Mr C's difficulties with public transport were outside the scope of its policy. Rather, it refused to make an exception to its policy for other reasons unrelated to Mr C’s difficulty with public transport.
30. The Council’s transport policy only considers transport assistance for people attending college full-time (at least 16 hours a week). This was a reason for the Council declining to help Mr C with transport. My first draft decision suggested the policy did not properly consider the position of apprentices who divide their time between work and college. However, the Council is not obliged to arrange college transport for people, including apprentices, who do not attend college full-time. Moreover, as explained above, I now consider the Council’s education transport duties do not cover transport to Mr C’s workplace. In that context, I need not consider further the point about full-time college attendance.

The Council’s duties under other education-related legislation

31. I also considered whether some other legal duties specifically relating to education might be relevant.
32. The law says:

‘A local authority in England must make available to young persons and relevant young adults for whom it is responsible such services as it considers appropriate to encourage, enable or assist the effective participation of those persons in education or training.’ (Education and Skills Act 2008, section 68(1))

33. For the purposes of that Act, Mr C was a ‘young person.’ I considered the possibility that the duty to make appropriate services available ‘…to encourage, enable or assist the effective participation…’ should include considering whether a particular learner needs transport. However, the relevant statutory guidance shows this duty is primarily about strategic planning, systems and information-gathering rather than about decision-making on such matters as transport needs in individual cases. (Department for Education, Participation of young people in education, employment or training (September 2016), paragraphs 16-31) So I do not consider there was any fault in relation to this duty regarding Mr C’s request for transport.
34. Section 15ZC of the Education Act 1996 says councils must encourage people aged 19 and older to participate in education and training, including apprenticeships. I considered whether this might extend to considering transport. However, as explained above, section 508F of the same Act deals expressly with transport and only gives councils a duty to consider transport for education, not training, for people in Mr C’s situation. So I do not find that a different section of the same Act creates a separate duty without expressly mentioning transport. Rather, the section 15ZC duty seems to be a general duty to encourage participation, which the Council is likely to have met by approving Mr C doing an apprenticeship. So I do not find fault related to this duty either.

The Council’s social care role

35. The Council, when carrying out its social care functions, has a general duty to promote an individual’s well-being, which includes ‘participation in work, education, training or recreation.’ (Care Act 2014, section 1) Mr C’s apprenticeship is a form of training.
36. Someone is eligible for care and support arranged through the Council if their needs connected to a physical or mental impairment or illness prevent them meeting two or more of some specified outcomes. Those include ‘accessing and engaging in work, training, education or volunteering.’ (The Care and Support (Eligibility Criteria) Regulations 2015, Regulation 2(2)(h))
37. At the time Mr C started his apprenticeship, he had a Council social worker, support plan and personal budget resulting from a social care needs assessment. His EHC Plan also contained a section on ‘social care needs which relate to SEN.’ This listed a number of social care areas where Mr C needed support including having the necessary support to ‘attend regular education, employment or training.’ Though the EHC Plan was finalised after the apprenticeship started, there seems no reason to believe its judgements would have been significantly different on those points had it been finalised on time. So the Council evidently considered Mr C eligible for social care.
38. As explained above, the Council had no duty under education transport legislation to arrange transport to Mr C’s workplace. However, there is also the question of whether the Council’s separate social care duties, which can include helping someone take part in work, training and education, gave the Council any duty to consider transport.
39. The Council’s first response to my enquiry about this stated Mr C can now drive so he has no unmet social care need for transport. That was true once Mr C passed his driving test and could transport himself. But it does not address the point that, for the first few months of Mr C’s apprenticeship, he could not yet drive himself. Therefore the question is whether Mr C might have had an unmet social care need for transport then.
40. During that period, Mr C’s social care needs assessment and support plan dated from October – November 2017, when Mr C was still at school. Naturally they focused largely on arrangements around Mr C’s schooling. However, they also looked ahead to what would happen when Mr C left school before the next annual review of his social care.
• The needs assessment said Mr C wanted to do an apprenticeship next year and ‘…transport will be a difficulty’ because he found it too difficult to take the bus and a parent would not always be able to take him. The social worker noted Mrs B had agreed to look into getting an escort to drive Mr C. The needs assessment mentioned briefly that Mr C wanted to learn to drive. It gave no timescale and did not suggest this was how transport from September 2018 would be achieved.
• The support plan contained a section on work and learning opportunities. This stated Mr C wanted to do an apprenticeship from September 2018 at the workplace with a day at college. Mr C wrote, ‘I will need support to access this apprenticeship regarding transport as I cannot travel on buses’ and gave reasons why a parent could not take him. The plan’s section on ‘Actions to help me achieve my outcomes’ reiterated, ‘I will need support to help me access my apprenticeship and college.’
41. So the potential transport problem was identified well in advance. A support plan should set out how the Council will ensure any eligible needs are met. Yet on this point the support plan just contained Mr C’s general statements that he wanted support with transport. What was missing was the Council applying its judgement to this point and stating what, if anything, it believed it would need to do come September 2018 so that Mr C could access the apprenticeship. November 2017 might have been too early for the Council definitely to decide that. But the Council can and should revisit needs assessments and support plans if circumstances change before the annual review is due.
42. Here, the review was due in October – November 2018. Before then, Mrs B was contacting the Council’s education transport section from June 2018 seeking transport help to start in September 2018. She then expressed dissatisfaction (including through the complaints procedure) with the decision not to provide this. The Council also says Mrs B advised its adult social care section ‘about discussions taking place around transport’.
43. The Ombudsman considers the Council as a corporate body, not just individual Council sections. We expect different sections to share and act on information as appropriate. Even if Mr C and Mrs B did not expressly ask the adult social care section in summer 2018 to revisit the assessment and support plan to consider transport, the Council corporately was well aware of this issue then.
44. It should have been clear that the matter might well relate to the Council’s social care duties, not just its education transport duties, because: the Council’s social care duties can include meeting a need related to difficulty accessing work and training; the Council already had a social care duty to Mr C; it was content with the prospect of Mr C doing the apprenticeship; the Council treated the college element of the apprenticeship as education provision for the purposes of its EHC Plan; Mr C obviously could not take part in the college element without also doing the workplace element; Mr C would have to be able to get between his home and the workplace; and he had identified difficulty doing so. Yet there is no evidence the Council revisited its understanding of Mr C’s social care needs then.
45. In summary, it should have been clear to the Council in summer 2018 that Mr C was facing difficulty getting to his apprenticeship and the difficulty might well amount to an unmet social care need related to accessing work and training. In all the circumstances, I consider the Council was at fault for not then considering whether its needs assessment and support plan needed updating to deal with the impending transport issue. I have considered the impact of that fault.
46. The Council had no reason to believe Mrs B had been able to arrange an escort in line with the previous suggestion. As Mr C was an adult, his parents had no responsibility to transport him themselves. Mrs B told the Council why it would be difficult for her to transport Mr C, including when the Council offered to pay her to transport someone else to school if she would take Mr C to his apprenticeship at the same time. So that offer did not overcome the fault I have identified above.
47. If the Council had considered whether its social care responsibilities applied here, it might, for example, have decided seeking a grant from the government’s Access to Work scheme could appropriately meet an unmet social care need. In that case the Council could have helped Mrs B or Mr C apply to that scheme or applied for Mr C.
48. Alternatively, the Council might have decided it should include transport arrangements, such as taxi provision or someone to drive Mr C, in Mr C’s support plan. In that case, the amount the Council would have paid towards transport would presumably have been subject to a financial assessment of Mr C.
49. It is also possible, though perhaps less likely, that after proper consideration the Council would have decided there was no unmet social care need for transport.
50. We cannot confidently establish, on the balance of probabilities, what the Council would have been likely to decide in summer 2018 had it considered this properly. So the Council’s fault here leaves Mr C and Mrs B with significant avoidable uncertainty about whether, but for the Council’s fault, their inconvenience and anxiety about getting Mr C to his apprenticeship in the early months might have been avoided or lessened. That uncertainty is an injustice. Mrs B also went to some time and trouble pursuing matters.

Agreed action

51. At my recommendation, the Council has agreed to:
1. Apologise in writing to Mrs B and Mr C for the injustice caused by the fault I have identified;
2. Pay Mrs B and Mr C £200 each to recognise that injustice; and
3. Review its procedures and information and training for staff to ensure the Council properly considers how its social care duties might apply to adults with EHC Plans, including in respect of transport.
52. The Council should complete points a) and b) within one month of the Ombudsman reaching a final decision on this complaint. It will complete point c) in forthcoming briefings for its social care staff.

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Final decision

53. I have completed my investigation because the Council’s agreement to my recommendations above will remedy the injustice caused by the Council’s fault, as far as possible.

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Parts of the complaint that I did not investigate

54. Mrs B raised some points about the possibility of the Council giving Mr C a personal budget for transport. I did not investigate that because I did not consider it central to the main point of complaint affecting Mr C, namely the Council’s decision not to give Mr C transport assistance.

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Investigator's decision on behalf of the Ombudsman