Summary: There was some fault in the Council’s communications about an application for transport to education. This caused an injustice, which the Council has agreed to remedy. A complaint about a separate application is outside the Ombudsman’s jurisdiction, and so he has discontinued this element of his investigation.

The complaint

1. This complaint relates to the Council’s handling of applications for transport to post-16 education for two people.
2. The elder, to whom I will refer as Ms C, is the adult daughter of Mr and Mrs B, whom they represent in her complaint.
3. Mr and Mrs B have also complained about the application for their younger daughter, who is still a minor. I will refer to her as D.

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The Ombudsman’s role and powers

4. 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)
5. SEND is a tribunal that considers special educational needs. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

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How I considered this complaint

6. I reviewed Mrs B’s correspondence with the Council, the applications for Ms C and D and the appeals for Ms C, and the Council’s transport to education policy documents.
7. I also sent a draft copy of this decision to both parties for their comments.

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What I found

8. Mr and Mrs B have two daughters, Ms C and D. Ms C is a young adult and D is a child. Both have special educational need (SEN) and are subject to Education, Health and Care (EHC) plans.
9. On 31 May 2018, Mr and Mrs B made applications to the Council for transport to education for both Ms C and D. They have complained about the Council’s handling of both applications.
10. For clarity, I will provide the background chronology, and my analysis, for each in turn.

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Ms C – background

11. The Council refused Ms C’s application on 12 July. Mr and Mrs B submitted an appeal form on 12 August, which the Council recorded as being received on 14 August.
12. Mr and Mrs B appealed on the basis that Ms C’s journey to college was a three-hour round trip. Her condition made it difficult for her to use public transport; this was made worse by the fact she had previously been the victim of an assault, the perpetrator of which lived nearby and was known to use local public transport.
13. The Council considered the matter at the first stage of its appeals process. On 29 August, the Council says it wrote to Mrs B explaining it had rejected the appeal and the next steps.
14. On 7 September, Mrs B had an email exchange with a member of Council staff. She was unaware the appeal had been rejected, and also that there was a second stage to the appeal process which was now open to her. She asked for the appeal to move to the second stage, and also said she wished to make a complaint.
15. On 12 September, the Council sought quotes for likely travel costs for Ms C as part of the appeal process. These were provided by the relevant Council team on 13 September.
16. The stage 2 panel upheld the appeal on 28 September.
17. The Council says it was then waiting for a copy of Ms C’s college timetable, which it needed before it could make arrangements for a taxi for her. It received the timetable on 24 October, and Ms C’s transport arrangements then began on 29 October.

Complaint

18. Mrs B submitted a complaint to the Council on 9 September, raising four points of complaint.
19. First, she complained there had been poor communication between the Council’s general SEN team and SEN travel team; second, that she had been “misinformed” about the appeal process; third, the general delays in the application process; and fourth, that Ms C’s travel application had been rejected (her appeal still being outstanding at this point). She said that Ms C’s college placement was due to start in a few days, and that she and Mr B would be required to transport her themselves.
20. The Council responded on 9 October.
21. It said, in its view, there had been good communication between the SEN and SEN travel teams, but accepted this may not have been “adequately conveyed” to Mrs B and apologised. The Council said it was looking into how it could improve communication with parents and carers in future.
22. The Council said it was satisfied it had informed Mrs B by letter of the outcome of the initial appeal for Ms C; however, it had not explained in the letter how she could take it to the next stage of the appeal. It considered its handling of matters had been timely, but accepted there was a lack of clarity and apologised again.
23. The Council then said Ms C’s application was made on 31 May, and that the Council had written to Mrs B with its initial decision to refuse on 12 July. It agreed there could have been clearer guidelines for how long the process would likely take, and that the Council was reviewing its processes accordingly.
24. On Mrs B’s fourth complaint, the Council said some confusion and delay had arisen because of the two-stage appeal process. Stage one was considered by a senior manager, who had decided that Ms C did not qualify for assistance under section 508F of the statutory guidance.
25. The Council explained that it was under no absolute duty to provide transport for a person in Ms C’s position, but noted the appeal had now been upheld.
26. The Council partially upheld all four points of Mrs B’s complaint. It said it believed her complaints would have been “negated” if the Council had clearer timescales for dealing with transport applications and appeals, and reiterated it would address this for the coming academic year.

Ms C - analysis

27. Mr and Mrs B applied for travel assistance for Ms C on 31 May. The Council’s initial decision letter – rejecting the application – is dated 12 July.
28. I have reviewed the Council’s published post-16 transport to education policy for the 2018/19 academic year. The policy explains how to make an application, but does not give any indication how long it will take to make its decision.
29. I agree it is unhelpful the policy gives no published timescale, as the Council has recognised, although I do not consider this issue justifies a finding of fault in itself.
30. By my calculation, the Council took 42 calendar days, or 31 working days, to decide the application. Regardless of the lack of a published timescale, this does not strike me as excessive.
31. However, it appears that Mrs B was unaware of the Council’s decision until a month later. She says she became aware of it, then obtained the appeal form and returned it, on 12 August.
32. It is difficult to understand why Mrs B would not have received the Council’s decision letter when it was sent. The Council has provided me with a copy of the letter, and I do note a very minor spelling error in Mrs B’s address. But it appears unlikely this would have prevented it being delivered, as the house name and postcode, for example, are both correct.
33. It is also possible this letter was sent by email, and given there was frequent email contact between Mrs B and the Council, there is no obvious reason why she would not have received it.
34. It is not possible for me to draw a conclusion on this. All I can say is that Mrs B was unfortunately unaware of the Council’s decision on Ms C’s initial application for a month, which caused a delay in her appeal and the subsequent process.
35. The Council’s post-16 transport policy does not, itself, contain any details about the appeals process. Instead it directs the reader to the Council’s general transport to education policy, where the process is set out.
36. The general policy explains that there are two stages to the appeal process. The applicant must submit their appeal within 20 days of the initial refusal, and the decision will be reviewed by a senior manager.
37. The manager will make their decision within 20 days, and the applicant will then have a further 20 days to appeal this at stage 2 if they wish. Stage 2 involves a panel review of the evidence, and the applicant has an opportunity to attend the hearing to present their case.
38. I note the policy does not specify whether it means 20 working days or 20 calendar days, which is again unhelpful. But the first stage of Ms C’s appeal was decided in 15 calendar days, and the second in 21 calendar days, and so I am satisfied the Council dealt with both promptly.
39. However, again Mrs B’s complaint here is about poor communication. The Council refused the initial appeal on 29 August, but Mrs B says she was unaware until 7 September, and even then only because she was discussing D’s situation with a member of staff and Ms C happened to come up in the conversation. She also says she was unaware, until that point, that there was now a two-stage appeal process.
40. While I was able to locate details of the two-stage appeal process on the Council’s website, I agree this should be more transparent.
41. The initial decision letter – which Mrs B appears not to have received – directs the recipient to a particular page on the website if they wish to appeal. While this gives a link to the appeal form, it says nothing of the two-stage process, nor the timescales, and nor does it explain to the reader where to find this information.
42. The information is, however, available on the website. In order to locate it, I had to do a general search on the main website for ‘policies’, which brought up a link to a page containing both post-16 and general transport policies. Even then, as I have said, the post-16 policy does not itself contain any details of the appeals process, but instead directs the reader to the general policy.
43. This is unnecessarily convoluted for some simple, but important, information, and so I consider this opaqueness to be fault. I can see no reason for the Council’s decision letter not to explain there is a two-stage appeals process, nor the webpage to which it directs the recipient.
44. Mrs B also says she was unaware of the Council’s decision on the first stage appeal until 7 September, despite it being made on 29 August.
45. I have reviewed the information the Council provided to me for my investigation. While there was a significant volume of correspondence between Mrs B and the Council, I cannot see anything dated 29 August telling Mrs B it had refused the appeal. As Mrs B says, it does not appear the Council told her of its decision until 7 September, during a conversation about D. Again, I consider this fault.
46. So while there does not appear to be any significant delays in the Council’s decision-making process, at any stage, delays arose because Mrs B was unaware of the Council’s decision. And I am satisfied that, at least with respect to the first appeal, this was because of fault by the Council.
47. It is, however, more difficult to gauge the level of injustice this has caused.
48. Mrs B understandably feels aggrieved by having to go through the appeals process at all. That the Council eventually upheld the appeal would obviously reinforce this feeling.
49. However, I do not consider I can find fault on this basis alone. As the Council explained, it was under no absolute duty to provide transport to Ms C. With the information available to me, I cannot explain the rationale behind the Council’s decision to refuse the application, or its reversal of this decision.
50. But the Ombudsman would not uphold a complaint solely because an authority had changed its mind about something on appeal, as to do so would risk undermining the appeals process in general. I am, in fact, slightly critical of the Council for telling Mrs B that her complaint was ‘justified’ for this reason.
51. There was a month delay before Mrs B was able to submit the first appeal for Ms C, and a week for the second appeal. These delays were problematic, as it meant the academic year had already begun before the Council accepted the duty to provide transport for Ms C.
52. However, as I have said, I cannot conclude, on the evidence, that the month delay was because of any fault by the Council. And while I am satisfied that the additional week was because of fault, I note the Council says it holds appeal panel hearings once a month – so it does not appear its decision to uphold the appeal would have come any sooner, even if there had not been this delay.
53. But, taking matters as whole, I can see that Mrs B has find the whole process gruelling and frustrating. This was not helped by the fact Mrs B did not receive the original refusal letter; but even if she had, this would still not have properly explained the appeals process, nor directed to her to the policies on the Council’s website.
54. I consider that poor transparency and communication by the Council has contributed to Mrs B’s frustration, and I am satisfied this was an injustice which the Council should take steps to remedy.
55. Separately, Mrs B says there is another student at Ms C’s course at college who lives on their road. The Council provides this student with a taxi, which Ms C now shares. However, the other student has had this service in place since the beginning of the academic year, while Ms C had to wait until the end of October before she could start using it. This meant that Mr and Mrs B had to transport her to college themselves during the intervening period, some seven to eight weeks.
56. I asked the Council to comment on this. It said it had not accepted a duty to provide Ms C with transport until 28 September, and it did not receive a copy of her college timetable until 24 October. The Council explained it cannot send out a tender until has the timetable, as providers would be unable to commit to a contract until they know the dates and times they would be required to provide the service. The Council also explained that it had asked both Mrs B and the college for a copy of the timetable.
57. I cannot speculate why the other student’s application was accepted more quickly, and whether this succeeded at the initial stage or appeal. But I can appreciate why Mrs B finds it difficult to understand why Ms C had to wait until the end of October for her transport provision to start, when, for all intents and purposes, the facility she needed was already in place.
58. However, the fact remains the Council had not accepted a duty for Ms C until the end of September, and so it stands to reason she would not have been able to use the taxi before this, regardless of its apparent availability. I also accept the Council’s reasoning for why it needed to wait for a copy of the timetable, which unfortunately caused a few more weeks delay in the process.
59. Again, I do not consider there was any delay in the Council’s decision-making process itself. There was a month delay before Mrs B became aware of its initial decision, and it seems likely the whole process could have completed more quickly if it had not been for this, reducing or eliminating the need for Mr and Mrs B to transport Ms C themselves.
60. However, as I have said, the evidence does not demonstrate this month delay was necessarily the Council’s fault; and it does not appear the additional week delay, which was because of the Council, made a difference to the outcome. So I cannot find that it was an injustice that Ms C was unable to use the taxi until the end of October.
61. In summary, the process from application to successful appeal for Ms C was protracted, but it is not clear to what extent this was the result of fault by the Council. However, the Council should have made its processes and timescales clearer, and this has caused an injustice to Mr and Mrs B which it should remedy.

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D – background

62. Mr and Mrs B applied for transport for D on 31 May 2018. In D’s case, her application was accepted and so did not go through the appeal process.
63. The Council says that, between then and the end of September, it was in the process of agreeing D’s college placement. Her EHC plan went through several draft stages before her placement was agreed. On 29 September, the Council informed Mrs B it would take some time to arrange D’s transport.
64. Between then and the current date, there have been a number of difficulties in putting the service in place. For example, D needs a personal assistant (PA) to travel with her, but the Council says it was not aware of this until 25 October. It was then only on 15 November, after a (male) PA had been arranged, the Council says Mrs B confirmed D needed a female PA, returning the process to the beginning.
65. The Council says arrangements have now been made, and D’s transport arrangements will start after the upcoming Easter break.
66. Mr and Mrs B have been transporting D in the meantime. This is a very lengthy round trip, and Mrs B says it has led to them suffering stress and taking time off work.

D - analysis

67. In her complaint to the Council, Mrs B said that D was, at that stage, too unwell to start college. However, she had already been charged her contribution for D’s transport. She complained that she had explained the situation to the SEN team several times, but it appeared this information had not been imparted to the SEN travel team.
68. The Council’s response, as previously described, was that there had been “good communication” between the two teams, but this had not been “adequately conveyed” to Mrs B.
69. It is not clear to me what the Council means here. Mrs B’s complaint was about poor communication between two Council teams, not with her, and so I do not see what there was to be ‘conveyed’ to her.
70. As I understand it, however, Mr and Mrs B were due to pay a contribution to D’s travel for the year. And while she may not, at that point, have actually started college, the contribution would become due at some point during the year anyway. So there is no obvious sign of a tangible injustice here.
71. The main part of Mr and Mrs B’s complaint to Ombudsman about D relates to events which post-date the complaint to the Council. This is, in summary, the length of time it has taken for the Council to arrange a taxi and PA for D.
72. The law says the Ombudsman cannot investigate a complaint unless the relevant authority has had a reasonable opportunity to address it first. Although Mrs B has had a lot of contact with the Council about D’s taxi and PA, I cannot see that she has made a formal complaint about any of this, with the exception of the point I have discussed above.
73. Moreover, since I began my investigation, I have also become aware that Mr and Mrs B have appealed to the SEND Tribunal. This is because they believe D’s need for a taxi and PA should be included in her EHC plan as an educational need.
74. The law says the Ombudsman cannot investigate any matter once it has been appealed to a tribunal. The courts have also held that this should include any secondary elements pertaining to an appealed matter, even where the tribunal has no power to resolve the secondary elements themselves.
75. In this case, Mr and Mrs B’s complaint about D relates to alleged injustice arising from the Council’s handling of the matter which is now before the SEND Tribunal. It is therefore now outside the Ombudsman’s jurisdiction.
76. For this reason, I have discontinued my investigation into events surrounding D’s application.

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Summary

77. There was some delay in the application and appeal process for Ms C, although the evidence indicates this was only partially the Council’s fault. However, the Council’s communication with Mrs B was inadequate, particularly in its opaqueness about the appeal process, and this caused her an injustice.
78. Mr and Mrs B’s complaint about D is mostly outside the Ombudsman’s jurisdiction, and there is no evidence of injustice arising from the element which is in jurisdiction.

Agreed action

79. With one month of the date of my final decision, the Council has agreed to:

• offer to pay Mr and Mrs B £300 in recognition of the distress caused by its poor communication about Ms C’s application and appeals;
• review its standard refusal letters for transport to education applications, to ensure they clearly explain the appeals process and relevant timescales;
• review the guidance pages on its website for transport to education applications, to ensure they clearly explain the appeals process and relevant timescales.

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Final decision

80. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman