Summary: Mr and Mrs B complain on behalf of their adult son, Mr C, that the Council wrongly refused their application for post-19 transport assistance. Mr and Mrs B also complain the Council failed to issue Mr C’s final EHCP. The Ombudsman finds fault with the Council and has recommended actions to remedy the injustice caused.

The complaint

1. Mr and Mrs B complain about the Council’s refusal to provide post-19 transport for their son, Mr C. Mr C has an Education and Health Care Plan (EHCP) due to autism and learning difficulties. They say this has placed an unacceptable responsibility on them to transport Mr C to and from college.
2. Mr and Mrs also complain the Council:
• failed to complete a social care assessment before Mr C turned 18;
• failed to assess Mr C’s care needs during his EHC assessment;
• did not provide them, or the College, with a copy of the EHCP;
• did not consider aspects of Mr C’s social care assessment once he became an adult;
• delayed the completion of Mr C’s personal budget; and
• made inaccurate statements about the use of Mr C’s mobility vehicle and benefits.

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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, section 24A(6), as amended)
4. 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

5. During my investigation I discussed the complaint with Mr B and considered all the information they provided with their complaint.
6. I made enquiries with the Council and considered its response.
7. Both parties had the opportunity to comment on my draft decision.

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Guidance and legislation

8. Section 508F of the Education Act 1996 requires local authorities to make arrangements for the provision of transport they consider ‘necessary’ (or the Secretary of State directs) to help the attendance of adults at institutions where the local authority has secured the provision of education for the adult concerned. For the purposes of this section an adult is a person above sixth form age.
9. Any ‘necessary’ transport must be free.
10. In considering whether they are required to make transport arrangements for an adult, a council must have regard (among other things) to the age of the adult and the nature of the route, or alternative routes, which the adult could reasonably be expected to take.
11. The post-16 transport statutory guidance says local authorities should publish a complaint or appeal process as part of its transport policy statement. The guidance also says good practice suggests a similar two-stage complaint process to that used for pre-16 appeals.

Education Health Care Plan (EHCP)

12. The Children and Families Act 2014 established a new system where education, health and care (EHC) Plans would (by April 2018) replace statements of special educational needs (SEN). When a statement of SEN is transferred to an EHC Plan the Council needs to carry out an assessment of a young person’s education, health and care needs. (Section 36 (2) Children and Families Act 2014)
13. Advice and information to inform the EHC assessment must be sought by the Council from various sources, including social care. It is the Council’s duty to lead the process and collect the advices. Government guidance says any social care assessment required should be combined with the EHC needs assessment (‘Social care: guide to the 0 to 25 SEND Code of Practice. Advice for social care practitioners and commissioners’).
14. For young people transitioning to adulthood, the Care Act introduced a specific duty to carry out a ‘Child Needs Assessment’ where there is ‘likely to be a need for care and support’ after they reach 18. Councils must also assess the needs of an adult carer where there is a likely need for support after the child turns 18 and it is of significant benefit to the carer to do so. This includes considering whether additional support is required to support a carer’s employment. (Care and Support Statutory Guidance issued under the Care Act 2014 (‘the Care Act Guidance’), paragraph 16.21)

Parental responsibility

15. Parents and carers are responsible for ensuring children of compulsory school age attend school (S.7 Education Act 1996). There is no similar duty for dependent adult children with an EHC plan. Parental responsibility ends when a young person reaches age 18.

Previous Ombudsman reports

16. In March 2017 the Ombudsman issued a Focus Report ‘All on board? Navigating school transport issues- learning lessons from complaints’. In this report we advised council’s that:
• It is the conditions set out in the Education Act 1996 that are relevant to transport eligibility not whether a person receives disability living allowance (DLA). (The same principle would apply to Personal Independence Payment (PIP) which has replaced DLA for adults).
• Motability is the body that runs the Motability car scheme for those in receipt of DLA and PIP. Unless the council is the legal appointee for the disable person, it is not in charge of the Motability agreement and cannot specify how a motability vehicle can be used.
17. In July 2018 the Ombudsman published a report of its investigation into a complaint against the London Borough of Lewisham (16 012 609). This report found:
• It was a relevant consideration that a 19-year-old is above statutory school age. The parent has no responsibility or legal obligation to ensure their son/ daughter attends college.
• Where the parent indicates they are not able or willing to drive their son/daughter to college each day they do not need to justify this or give reasons. Once a parent indicates they are not prepared to provide transport the Council should accept this and assess the transport application without reference to the availability of the parent/ carer.
• There is no obligation on a parent/ carer to find volunteers to drive their son/ daughter to college. It is not an appropriate request and is an irrelevant consideration.
• A council should not assume all or most of a persons DLA mobility component is available to be used towards college transport.
18. In April 2019 the Ombudsman published another report into post-19 transport, this time it was a complaint against Birmingham City Council (17 017 296). This report found:
• The law says if a council considers it necessary for an adult, who is over 19, to have transport provision then it must be provided. It does not say it will only do so if there are exceptional or special circumstances, which is what the Council’s policy currently says. The language the Council uses in its policy gives the impression a person’s circumstances must be such that he/she not only needs assistance but their circumstances are exceptional. This is not what the law says.
• As it stands the policy could dissuade people from applying for post-19 assistance even when it is necessary for them.
• The test is whether the Council considered transport funding is necessary for a person to reach his/her place of education.
• The responsibility for transport was not the parent’s responsibility. Where a son/daughter has no other means of transport available to them it is not reasonable for the Council to place the parent/ care in a position where they are forced to transport them to/ from college each day unsupported.

Council policy

19. The Coventry City Council post-19 travel assistance statement says:
• In exceptional circumstances the Authority may conclude that it is ‘necessary’ to make arrangements for the provision of transport pursuant to section 508F Education Act 1996.
• In relation to adults who have an EHC plan, the Council will also have regards to what a council is required to do under section 15ZA(1).
• It will consider whether there is a family member/carer who is able to transport the student ands why it would not be a reasonable arrangement to make.
• It will need to know if there are any ‘exceptional factors’ limiting the use of an applicants PIP payment to secure independent travel assistance.
• It will require details to explain a decision not to use a mobility vehicle to enable a student to attend their post-19 education placement. In these circumstances the Council would expect the carer/ student to make their own ‘alternative, appropriate arrangements’.

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What I found

20. Mr C has an EHCP. In September 2018, aged 19, he started college. The College is approximately 6 miles from Mr C’s address. He is unable to transport himself to/ from college and cannot travel independently on public transport.
21. In June 2018 Mrs B applied for travel assistance for Mr C. In her form she says she is unable provide transport because of her commitments as a foster carer. In support of the application Mrs B also submitted:
• a copy of Mr C’s careers advice and guidance summary;
• a letter from Mr C’s school confirming he did not possess the required skills to take part in the independent travel training programme; and
• a letter from the Learning Disabilities Service.
22. In July 2018 the Council wrote to Mrs B with its decision not to provide transport for Mr C. It said it did not consider it necessary because:
• There was limited or no evidence that other travel arrangements have been considered or tried and why they are not suitable.
• There was limited or no evidence of what other funds could be used to support travel to college.
• There was no indication whether Mr C received the higher rate mobility payment of PIP, which could support them to secure independent travel assistance. The Council says: ‘If you do receive this benefit you are expected to use this to secure travel assistance. If there are exceptional factors which would limit the use of this benefit you would need to demonstrate this’.
• There was no indication whether Mr C had a mobility vehicle. The Council says: ‘under the terms of use it is expected that you will directly benefit from its use. If a decision has been made not to use the mobility vehicle to enable you to attend college, you or your career will normally be expected to make appropriate alternative arrangement. If this is not possible you will need to provide details to explain why this is not possible. Please note that child-care and working arrangements will not ordinarily be considered reasonable reasons for not making use of the mobility vehicle’.
23. The letter says it is possible to submit a new request for consideration using the same application form if ‘you feel that you have not provided the information required or your circumstances change’.
24. In August 2018 Mr B submitted a second application for transport assistance for Mr C. In this application he confirms:
• They did not qualify for a bursary.
• Mr C is in receipt of the mobility award with his PIP and has a mobility vehicle. But he cannot drive and is reliant on a driver to transport him in it.
• Mr C has no other income.
• Mr C cannot travel unsupervised.
• Mr and Mrs B are unable to transport Mr C to/ from college due to work and other commitments. All attempts at finding someone within the family and been tried but due to their own work commitments they are also unable to assist.
25. In this application Mr B also says:
• The law and statutory guidance prevents councils making unreasonable demands on family carers.
• The Council is failing to consider the parents needs as family carers.
• The Council should have said what transport support it would provide when it allocated Mr C a college place.
26. Mr B outlines his additional complaints to the Council (as details in paragraph 2) and also makes reference to the Ombudsman report published in 2018 (as detailed in paragraph 17).
27. In September 2018 Mr B made a complaint to the Council because he had been unable to contact the SEN transport department for four weeks.
28. The Council apologised for the difficulties, it said these were due to issues with the telephone system.
29. In October 2018 the Council wrote to Mr B with a decision about his transport application for Mr C. It says the application form and supporting evidence had been reviewed by two senior officers against the Council’s criteria framework which determines if it is ‘necessary’ to provide transport for a student.
30. In response to the points Mr B raised in his application form the Council says:
• It does not accept that Mrs B’s responsibility as a foster carer are an acceptable explanation for her being unable to transport Mr C to college.
• Social Care no longer undertake assessments of need for transport to colleges so the request must be considered under the post-19 transport policy.
• Mr C has a mobility vehicle as part of his PIP award and although it acknowledges the Council does not direct the use of the vehicle it reiterates the terms of use to Mr B in the letter.
• ‘The statutory guidance for council’s in relation to post-19 adults accessing education only requires councils to provide travel assistance in exceptional circumstances when it is deemed ‘necessary’. The post-19 Travel Statement outlines when it would deem travel assistance to be necessary and was ratified by a Barrister as completely legal. As such it is noted that the adult must demonstrate why it is ‘necessary’ for the Council to provide travel assistance to an adult’.
31. The Council upheld its original decision not to provide travel assistance to Mr C for these reasons. The letter invites Mr B to reapply if he wishes to ‘provide the full information required’ and his application would be reassessed on the basis of any new information provided.
32. The Council wrote to Mr and Mrs B in February 2019. This appears to be the same letter that was sent in July 2018.
33. Mr and Mrs B were not satisfied with the Council’s response and complained to the Ombudsman.

The Council’s response

34. As part of my investigation I wrote to the Council. The Council provided the following response to my enquiries:
• Because it is left to the Council to determine if it is ‘necessary’ Coventry has not extended the post 16-18 appeals process to post-19, but instead allows new evidence to be submitted in response to feedback. In this case the Council did provide a review of the decision conducted by senior officers, the outcome of which was detailed in a letter.
• The Council does not have an expectation that the parent/ carer is required to transport a dependent student. However, there is an expectation that the student or the students agent, provide a detailed explanation as to why the student is unable to utilise the resources available to them, including benefits provided for the purpose of independent travel to secure travel arrangements.
• Mr and Mrs B have not been in contact with the Council since October 2018 and so it is not aware of the arrangements that have been put in place to secure Mr C’s attendance at college and whether this has placed an unreasonable responsibility on parents.
• The Council’s view is that the application of post-19 travel assistance requests are appropriately considered against the criteria set out in the policy statement. The core principle of the decision focuses on whether or not the applicant has made all reasonable attempts to secure independent travel arrangements.
• In light of the Ombudsman findings in relation to the potential impact decisions can have on family members, the Council will now review and retake its decision on the grounds that there is no willing volunteer within Mr C’s circle of family and friends to secure his travel arrangements.
• Mr and Mrs B had not previously made the Council aware of their complaint that the Council failed to complete a social care assessment before Mr C turned 18.
• The Council refute this and says a Needs and Wellbeing assessment was carried out in August 2016 and Mr and Mrs B were involved in the assessment. Funding for Mr C’s support package was agreed in readiness for Mr C turning 18 and this commenced on his 18th birthday.
• The Council says Mr C’s EHCP clearly includes his care needs and provision within section H of the EHCP dated August 2015. This says ‘Mr C has a package of care through direct payments of three hours a weeks and two nights a month’.
• An instruction to issue the final EHCP plan was given in June 2018 but there is no documentary evidence to confirm this action was carried out. The Council says this was an administrative error for which it is at fault. It offers a formal apology to Mr C and will issue an amended draft EHCP that reflects his current needs and provision in readiness for September 2019.
• The Council says it has no records of Mr or Mrs B requesting a final EHCP since May 2018. It says the required provision set out in the EHCP has been made by the College. Therefore, it does not consider that Mr C has suffered an injustice as a consequence of the Council’s failure.
• The Social Care assessment was completed in a timely manner and The Care Act does not include a requirement to consider home to college transport arrangements as part of the assessment.
• The Council is unable to comment on Mr and Mrs B’s allegation it made inaccurate statements about the use of Mr C’s Motability vehicle and benefits because there are no specific examples.
• The Council did not send a letter to Mr and Mrs B in February 2019. The last recorded contact with Mr S was in October 2018.
35. I asked the Council for any notes or records kept by the Council of the decision-making by officers in relation this complaint. It says ‘we can confirm that the letters issued to applicants provide a detailed record of the outcome of the decision and advise on next steps’.

My findings

Transport decision

36. Mr and Mrs B informed the Council in two separate Post-19 transport application forms that they were not able/ willing to transport Mr C to and from college. The Council did not accept the evidence provided by Mr and Mrs B in relation to this. This is fault and has caused Mr and Mrs B an injustice. Mr C’s transport is not Mr and Mrs B’s responsibility, he is over the age of 18 years old. There is no basis in law which allows the Council to impose an obligation on Mr C’s parents to take him to College.
37. It is wrong for the Council to assume that all or most of Mr C’s PIP payment is available to be used towards college transport. I can see no evidence that the Council considered what other transport requirements Mr C may have.
38. It is wrong for the Council to say the term ‘exceptional circumstances’ is used in the statutory guidance for post-19 adults accessing education. It is not and this is fault. This could deter people from applying for assistance. The test is whether it is ‘necessary’ to provide transport. The Council has used the term ‘exceptional circumstances' within its policy statement, it is not in statutory guidance.
39. If a council decides that transport is not necessary, the Ombudsman would expect it to show, in line with statutory guidance, that there is a safe and affordable way for the adult learner to attend college. I can see no evidence of how the Council considered this or satisfied itself that Mr C has a suitable arrangement in place for his transport to/ from college. This appears to be fault, which causes injustice to Mr and Mrs B. It left them in a position where they had responsibility for meeting Mr C’s transport needs.

Review process

40. The statutory government guidance ‘Post-16 Transport and Travel support to Education and Training’ makes clear that council statements ‘must include full details of how a young person or parent can appeal if they disagree with a local authority’s decision and further avenues of complaint open to them if they remain dissatisfied following completion of the local procedure’. At present, the Council’s policy statement does not include this information. This is fault.
41. As per the statutory guidance, a different person should take the decision at each stage of the decision-making process. We would expect any letter refusing transport to bear the name of the decision-maker, who should not be the same person as anyone who has previously decided the same matter.
42. As a general principle of fair and transparent decision making, the Ombudsman would also expect to see what factors the Council has reviewed so that there can be no uncertainty about its decision making. In this case, there are no contemporaneous notes or minutes of the review of Mr C’s case in October 2018. The decision letter sent to Mr and Mrs B outlines the reason for the refusal, but it does not give the names and roles of the officers who considered the case. And it does not evidence how the officers considered the specific points in reaching the decision to refuse transport. This is fault.
43. I do not consider the existing process of inviting applicants to keep resubmitting application forms to be a fair system for challenging decisions. It is not clear what evidence the applicant is expected to submit, and it does not allow for an independent review of the decision. This highlights why the Council needs an appeals procedure to come to a final decision.
44. The faults identified in the Council’s decision-making casts doubt on the conclusion it reached. The Council needs to reassess Mr C’s application for transport assistance correctly. As a result of our investigation, the Council proposes to retake its decision and this is an appropriate remedy.

EHCP

45. The Council accepts it did not issue the final EHCP for Mr C in June 2018. This is fault. The Council says this was due to an administrative error. However, it says the required provision, as set out in the EHCP, was in place at the College. Therefore, Mr C did not suffer an injustice due to the fault.
46. Nevertheless, the Council has offered to apologise to Mr C and issue an amended draft EHCP that reflects his current needs and provision in readiness for the current academic year.

Other parts of the complaint

47. The evidence the Council provided demonstrates it:
• completed Mr C’s social care assessment before he turned 18;
• assessed Mr C’s care needs during his EHCP assessment; and
• did not delay in completing and paying Mr C’s personal budget.
48. I am satisfied with the evidence the Council provided and do not uphold these parts of the complaint.

Agreed action

49. The Council will, within four weeks of my decision:
1. apologise to Mr C for failing to issue the final EHCP;
2. issue an amended draft EHCP;
3. re-take its decision to provide transport assistance for Mr C; and
4. apologise to Mr and Mrs B for the avoidable time and trouble they have experienced pursuing this complaint and pay them £150 in recognition of this.
50. In addition to the above points the Council will, within eight weeks of my decision:
1. Review its post-19 Policy Statement to ensure the content is in line with the requirements of the statutory government guidance.
2. Implement a fair and transparent appeals process for post-19 transport assistance applications as recommended in statutory guidance. Details of which should be included within its Policy Statement, application form and decision letters.
51. If the Council decides it is necessary to transport Mr C to college, within four weeks of making that decision, the Council will:
1. Reimburse Mr and Mrs B for the costs they incurred as a result of transporting Mr C to and from college since September 2018.

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Final decision

52. I find fault with the Council. I have recommended actions to remedy the injustice caused, which the Council has accepted.

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Investigator's decision on behalf of the Ombudsman