Summary: The complainant says the Council failed to recognise the significant differences between two college courses when deciding if it should provide discretionary transport to help a student with an EHC Plan attend his chosen course. The Council says it looked at the course contents of both colleges, noted they were broadly similar with some differences and so declined to provide transport to the named college. The Ombudsman finds the Council acted without fault in considering the application and appeal.

The complaint

1. The complainant, whom I shall refer to as Ms X complains when considering home to college transport for her son whom I shall refer to as Y, the Council failed to:
• Properly consider both Y’s medical needs and the fact his EHC Plan names a specific college when deciding which college offered the most appropriate course to meet Y’s needs;
• Properly compare the detail of the college courses provided by the college named in the EHC Plan and the college nearer the family’s home resulting in the Council denying transport to the named college.
2. Ms X wants the Council to acknowledge the stress caused and offer home to college transport support to Y so he can attend the college named in his EHC Plan.

Back to top

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 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)
6. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about education or name a different school. Only the tribunal can do this.

7. The Council is responsible for making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.
8. 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.

Back to top

How I considered this complaint

9. In considering this complaint I have:
• Contacted Ms X and read the information provided in the complaint;
• Put enquiries to the Council and studied its response;
• Researched relevant law, guidance and policy;
• Shared my draft decision with Ms X and the Council and reflected on comments received.

Back to top

What I found

10. Councils have a duty to provide free home to school transport for pupils of compulsory school age (5-16) in certain circumstances. (Education Act 1996 (as amended) s508B and Schedule 35B
11. Councils have discretion to provide transport for children who are not entitled to free transport. They may charge for this transport. (Education Act 1996 (as amended) s508C)
12. Councils must have a published transport policy showing its arrangements for providing transport where necessary to help students of sixth form age who receive education or training at a school or further education college. (Education Act 1996 (as amended) s509AA & 509AB)
13. The law imposes a duty on councils to provide transport where it is deemed necessary for students over the age of 19 years. (Education Act 1996 (as amended) s509AC)
14. Guidance issued by the Department for Education in January 2019 entitled “Post-16 transport and travel support to education and training statutory guidance for local authorities” says:

“Young people with an EHC Plan will have an institution named in their plan at Section I. 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. [Councils] should ensure during EHC Plan discussions that parents are made aware that transport support will be considered in accordance with the [Council’s] own post-16 transport policy.” (“Post-16 transport and travel support to education and training statutory guidance for local authorities”: paragraph 34).

15. The Council’s Post 16 Transport Policy says it may offer students of sixth form age with SEND help with transport to college where they have a Post-16 EHC Plan and where:
• The proposed further education course, or comparable course, or a course appropriate to the level of needs is at the nearest maintained school/college to the student’s home address and;
• The course is full time and;
• The shortest available walking route is three miles or more or the transport needs are specifically detailed in the EHC Plan.
16. The help provided is usually:
• The costs of a rail or bus season ticket;
• A place on a contract or school bus;
• A mileage allowance;
• A contribution towards the costs of travel.
17. The Policy says that although young people may have to continue their education or training until at least their 18th birthday this does confer on them a right to free transport beyond Year 11.

What happened

18. Y attended mainstream schooling to Year 11. The Council assessed Y’s EHC needs and issued an EHC Plan on 10 July 2018 naming College Z as the named educational provider for his post-16 education. The Council says during the assessment process Y expressed doubt about which college he wished to attend for his chosen course. The Council says Y and Ms X considered courses offered by four colleges. After some consideration Y and Ms X decided it came to a choice between either College Z or College Q, the latter being nearer to their home. Y and Ms X reviewed what both courses offered including teaching methods to decide which would best meet both Y’s EHC needs and his qualification goals.
19. College Z is about 25 miles from the family home, College Q is about 12 miles.
20. The Council says it gave Ms X information about how the Post-16 transport policy might affect Y’s choice of college during the planning for Y’s transition to Post -16 education. The Council says an officer told Ms X by telephone in April 2018 Y could apply to any college, however, if he could not travel independently, he would need to choose the nearest college to comply with the Post-16 transport policy. In an email of 18 April 2018, the Council says the college must be the nearest one offering the course Y has chosen. The author says “…They will ask if there is an equivalent course at [College Q] as they are both agricultural colleges and it is much closer to where you live.”
21. In an email to Ms Y from the Council dated 18 June 2018 the author says: “One thing to consider is that transport will only take someone to their nearest college offering the course, so if [Y] wanted to do [a named course] he would need to apply to [College Q] if you wanted him to get transport.” Y could get help for transport to College Q under the Council’s Post-16 transport policy.
22. Ms X and Y decided to apply for the course at College Z. Although further from home than College Q, Y and Ms X decided the course offered by College Z better suited the skills Y wanted to gain. College Z’s course met his EHC Plan needs, and his EHC Plan named College Z as suitable.
23. The two colleges offer courses in agricultural studies. The Council says it considered what both had in common and found both colleges:
• Offer courses in agricultural studies;
• Have working farms giving students hands-on experience;
• Offer courses leading to a Level 2 qualification;
• Offer opportunities to apply for more specific Level 3 qualification;
• Prepare students for work in the countryside sector;
• Offer classroom based and outdoor work;
• Offer work with machinery;
• Offer training in estate skills;
• Offer work experience;
• Can include tuition in Mathematics and English as part of their courses.
24. The Council says the difference between the college courses is that one has an emphasis on agriculture, the other on wildlife. In deciding if the application for transport met the Post-16 Transport Policy the Council says it judged whether the courses were comparable i.e. similar rather than identical. The policy says if there are comparable courses at a closer suitable college then transport will be offered to the one closest to the student’s home. Both College Q and Z in the Council’s judgement can meet Y’s EHC needs and offered no barriers to his being able to attend and learn. The Council says Ms X and Y had chosen both colleges as possible places for Y to study, finally deciding on College Z because it offered more of what Y felt he wanted from the course.
25. Ms X took advice and was told, wrongly, the Council must provide transport to the educational institution named in Y’s EHC Plan. That is only true up to age 16. Post -16 educational transport support is discretionary. Therefore, the Council could only consider transport by applying its Post-16 Transport Policy.
26. In responding to my enquiries, the Council explains its duty is to ensure the course at the nearest college is suitable to meet the student’s needs adequately. The law does not impose on the Council a duty to provide the best possible provision available. Therefore, the Council says having considered what each college offered in its courses it judged College Q to offer a suitable comparable course to College Z. The Council consulted both colleges on whether they could meet Y’s EHC needs and both assured the Council they could.
27. In July 2018, the Council refused Ms X’s application for transport for Y to College Z. In its decision letter, the Council told Ms X she may be eligible for help from the Government’s16-19 Bursary Fund to cover costs of attending College Z. The Council says it also noted Y received benefits that he could use to help cover with the costs if he continued to choose College Z. Therefore, it says it offered advice on how to fund transport to College Z if that remained Y’s preference. Y began at College Z in September 2018.
28. Ms X appealed and the Council’s Transport Appeal Board heard her appeal in October 2018. Ms X attended the hearing and presented her appeal to the Appeal Board. The Appeal Board gave Ms X an opportunity to pose questions. Appeal Board members asked Ms X questions before deciding the appeal.
29. In the Council’s report to the Appeal Board it compared the courses offered by the colleges. It noted that as well as the same training offered by College Q, College Z also offered skills in game-keeping, forestry and countryside management. The report says in the Council’s view “Many of the core skills are comparable and transferable such as the estate skills and the livestock/game-keeping skills. These courses therefore are viewed as comparable. Both courses would also mean [Y] can use his love of countryside and wildlife as an area of specialised interest…”. The report says the fact both colleges offer progression to a Level 3 qualification means Y could still choose further alternatives whichever of the courses he completed.
30. The report records Ms X’s view that College Q course was unsuitable because it included:
• Use of heavy machinery which Y cannot undertake due to his health;
• Tree surgery and climbing which again Y could not undertake because of his medical conditions;
• Agriculture and game courses which Ms X says are opposite to countryside and wildlife management offered by College Z.
31. The Council argued College Z’s course describes forestry and game-keeping and disagreed with Ms X’s description of the content of the courses on offer.
32. The Appeal Board noted the differences in the courses but decided the similarities between the courses made them comparable if not the same. The Board considered if it could judge Y’s circumstances as exceptional, meaning it could offer him Post-16 Transport to College Z. The Appeal Board decided Y had no exceptional circumstances having considered whether taking a bus would damage Y’s mental health and well-being. It noted a dedicated bus run by College Z was available which would mean Y would not have to handle money or consider where to get off because it ran between his hometown and the College. This in the Appeal Board’s view meant Y could get to College Z without support if he preferred to attend that course.
33. The central issue the Council says is that under its policy it will only offer transport to students with an EHC Plan to the college nearest their home that offers a suitable, appropriate and comparable course.
34. In her complaint Ms X says the courses are significantly different from one another. Ms X says in considering Y’s appeal the Appeal Board did not consider Y’s severe health problems. Ms X cannot see the point in naming College Z in the EHC Plan as the most suitable educational institution for Y only to then say he must attend a different college. The difference in emphasis between say wildlife and agriculture Ms X says are important differences because they lead a student in different career directions. To achieve Y’s career hopes Ms X and Y believe the course offered by College Z best suited him and that offered by College Q did not and could not be considered comparable.

Analysis -was there fault leading to injustice?

35. My role is to consider how the Council decided the transport application and whether it decided the matter having considered all relevant information. If it has not, then I will consider recommending a remedy which may include reviewing its decision. My role is not to decide which course is best for Y or if he should receive help with transport.
36. The law is clear. While students may have to continue their learning until age 18, the law does not impose a continued duty to provide free transport or help once the student moves to Post-16 education. To receive transport Y must show he meets the criteria set out in the Council’s Post-16 Education policy.
37. The Council told Ms X Post-16 transport may not be available for College Z. It then considered her application for transport support under its Post-16 Transport policy. It took the view the course at College Q the nearest college to Ms X’s home offered a broadly similar course and so that was the nearest available course. On those grounds, it refused support. On appeal to the Transport Appeal Board Ms X presented her evidence in her submission and her presentation at the meeting. The Appeal Board noted the differences in the courses but decided they are broadly similar and offer chances for Y to develop his interest further through a Level 3 qualification.
38. There are differences between the courses. The Council noted that. The Appeal Board considered if this meant College Q was not offering a similar course. Having heard all the evidence, the Appeal Board decided it was offering the nearest comparable course. I appreciate Ms X disagrees on the course content, but this is a matter of judgement. I find the Council considered all relevant information when exercising judgement and so I cannot challenge the merits of its decision.
39. The Council followed the proper procedure for considering Post-16 Transport assistance. It had before it all relevant information and gave Ms X the opportunity at the Appeal Board to put forward her arguments and answer Appeal Board member’s questions. The Appeal Board then had to consider the arguments put before it and exercise its judgement. I find it did so without fault.

Back to top

Final decision

40. In completing my investigation, I find the Council acted without fault in its consideration of the application for transport assistance to help Y, attend College Z.

Back to top

Investigator's decision on behalf of the Ombudsman