London Borough of Bexley (18 012 904)

Category : Education > School transport

Decision : Upheld

Decision date : 12 Mar 2019

The Ombudsman's final decision:

Summary: the Council’s travel assistance policy for post-16 students, and its decision on Mrs M’s application, are flawed. The Council has agreed to revise its policy and re-make its decision.

The complaint

  1. Mrs M complains the Council refused to provide transport for her son, Mr B, to college.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question council decisions simply because the complainant disagrees with them. We must consider whether there was fault in the way the decisions were reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)
  3. 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

  1. I have considered:
    • information provided by Mrs M;
    • information provided by the Council;
    • the London Borough of Bexley Travel Assistance Policy for Post 16 Students, Academic Year 2018/2019 published in May 2018;
    • Post-16 transport to education and training. Statutory guidance for local authorities issued by the Department for Education in October 2017; and
    • the Education Act 1996.
  2. I invited Mrs M and the Council to comment on my draft decision.

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What I found

  1. Mrs M’s son, Mr B, is 20. He has an Education, Health and Care (EHC) Plan maintained by the Council. He attended a community special school until summer 2018. The Council provided transport.
  2. In September 2018, Mr B started at college. Mrs M applied for transport in June 2018. The Council refused. Mrs M appealed the Council’s decision at both stages of the Council’s appeals process. Her appeals were unsuccessful. Mrs M complained to the Ombudsman.
  3. Mr B has cerebral palsy. He has severe learning and physical disabilities. He uses a wheelchair. He has little awareness of danger. He cannot travel alone.

Post-19 transport to education and training

  1. The Council must make “such arrangements for the provision of transport and otherwise as they consider necessary” to “facilitate the attendance” of adults with EHC Plans receiving further or higher education, or any other training or education the Council arranges for them. (Education Act 1996, section 508F)
  2. Any transport provided must be free.
  3. The question of what is “necessary” is a matter for the Council. It is not, however, a pure discretion. Councils must exercise their judgement judiciously and in good faith. If they decide that transport is necessary, they must make the necessary arrangements. (Staffordshire County Council v JM [2016] UKUT 246 (AAC))
  4. When considering what arrangements it is necessary to make, the Council must act with a view to increasing opportunities for adults with EHC Plans to exercise choice.

The Council’s transport policy

  1. The Council’s post-16 transport policy says the Council “will offer a discretionary service to young people who meet the eligibility criteria.”
  2. The policy says,

“Eligibility Criteria

A young person may be eligible if all of the following statements apply to them:

      1. The young person is under 25 years of age and they reside or are Looked After by the London Borough of Bexley
      2. They have a special educational need or disability, which may be identified in an Education Health and Care Plan (EHCP), or other exceptional circumstances which impacts on their ability to use those public transport arrangements
      3. The young person lives more than 3 miles away from their learning venue (by the shortest safe walking route), or they live less than 3 miles away
      4. They have exhausted all available sources of support in Section 3 of this document. [Section 3 lists travel assistance offered by external organisations.] A young person can apply for council travel assistance in addition to the options provided by other organisations, but any support received will be taken into account when assessing what form of travel assistance is most appropriate.
      5. Their learning venue is the nearest that can meet the majority of their needs.
      6. Their study programme is full-time – equivalent to a minimum of 18 hours per week
      7. If the young person is aged 19 or over, they have been in continuous education or training since before their 19 birthday. Unless they have an EHC plan issued.”
  1. Parents, carers or students must make an online application for transport assistance each year. For students with an EHC Plan, the policy says the Council will carry out an initial assessment of their travel requirements based on the place of learning proposed. This will include “the evaluation of written evidence and family circumstances […] and may include a home visit, consultation with the place of learning/caseworkers and any other relevant specialists.” If the Council decides not to provide transport, applicants have a right of appeal.

Mrs M’s application

  1. Mrs M submitted an online application on 26 June 2018.
  2. The Council decided not to provide transport.
  3. Mrs M appealed the Council’s decision on 16 July 2018.
  4. The Head of the SEN Service reviewed the documentation Mrs M submitted and rejected her appeal. The Council’s decision letter said:
    • the evidence did not indicate the family’s situation warrants applying ‘exceptional circumstances’;
    • national as well as local travel assistance criteria for home to school distance is 2 miles for children under years of age and 3 miles for children aged 8 years and older.
  5. The letter invited Mrs M to appeal at the second stage of the Council’s appeals process when her appeal would be considered by a panel of suitably experienced people independent of the process to date.
  6. Mrs M submitted a Stage 2 appeal on 6 September 2018. She engaged a specialist advocate who wrote a detailed letter in support of her appeal.
  7. A Panel considered Mrs M’s appeal on 19 September. The brief notes of the appeal record that:
    • Mr B has complex needs an is a vulnerable young adult;
    • he uses a wheelchair;
    • he has cerebral palsy and significant learning needs;
    • he receives Disability Living Allowance (DLA), both care (high rate) and mobility elements.
  8. The Panel concluded, “appeal declined, we do however may require further advice from OT/Physio and Adult Social Care.”
  9. The Council sent a decision letter on 3 October 2018. The Council’s decision letter said:
    • the Panel did not agree that the exceptional circumstances criteria should apply;
    • as there are no exceptional circumstances to take into account, Mrs M’s application was considered under the ‘distance criteria’. Mr B lives 2 miles from school and so does not qualify;
    • the Council was not judging the child’s capacity to travel alone;
    • it is a parent/carer’s responsibility to ensure children attend school regularly. This includes arranging any necessary travel to and from school and/or accompanying a child as necessary when there is no entitlement to travel assistance.

Consideration

The Council’s policy

  1. The Council’s policy is poorly written and does not reflect the law that applies to school and college transport for young people, including young people with special educational needs, in post-compulsory education.
  2. The Council has devised seven criteria to determine eligibility for transport. At different places in the policy, the Council says it “will” and it “may” offer transport to young people who meet the eligibility criteria.
  3. The Council’s eligibility criteria do not take account of the different legal powers and duties the Council owes to different groups of young people. Different duties apply to:
    • young people of sixth form age;
    • adult learners; and
    • adult learners with an Education, Health and Care (EHC) Plan.
  4. Criteria b), which restricts transport to those young people for whom exceptional circumstances impact on their ability to use public transport, does not reflect the law. The law requires the Council to consider whether it is necessary to make transport arrangements to facilitate a young person’s attendance at college, not whether there are exceptional circumstances.
  5. Criteria c), does not make sense.
  6. Criteria e), the requirement a young person attends the nearest establishment that can meet ‘the majority of their needs’ would be unlawful if applied to a young person with an EHC Plan. The Council has a duty to arrange provision to meet all the assessed needs of a young person with an EHC Plan, not ‘the majority’. The Council also has a duty to promote choice for adults with EHC Plans. Requiring a student to attend the nearest college does not promote choice.
  7. Criteria f), which requires a young person to follow a full-time programme of study, has no legal basis.
  8. The Council says these are ‘wording errors’ and says the policy is misleading as it does not describe the way the Council approaches applications. The Council says it considers each case on its merits.
  9. I find the Council is at fault for having a poorly worded policy which is misleading and does not reflect the law. I have set out below why I do not accept the Council’s assertion that the policy does not reflect the way it considers applications (although that, too, would be fault).

Mrs M’s application

  1. The Council’s policy says the Council will carry out an initial assessment of an adult’s travel requirements based on the place of learning proposed. This will include “the evaluation of written evidence and family circumstances […] and may include a home visit, consultation with the place of learning/caseworkers and any other relevant specialists.
  2. I asked the Council whether it carried out a home visit, consulted with Mr B’s place of learning or any caseworkers or other relevant specialists involved as its policy says it will when considering Mrs M’s application. The Council did not. There is no evidence the Council carried out any kind of assessment of Mr B’s transport needs. This is fault.

Mrs M’s appeal

  1. The Council’s decisions at both stages of its appeals process are flawed. They both refer to the absence of ‘exceptional circumstances’ in Mr B’s application. The law does not say the Council must make transport arrangements only in ‘exceptional circumstances’. It says the Council must make such arrangements as they consider necessary to facilitate Mr B’s attendance at college. It must be necessary for the Council to make the arrangements. Mr B does not need to demonstrate exceptional need.
  2. Both appeals refer to Mr B as a child and say his application has been refused on distance criteria. The Council says the reference to Mr B as a child was a typing error and the phrase the Council would normally use is ‘child or young person’.
  3. Mr B is an adult. The distance criteria apply to children attending school up to the age of 16. They do not apply to adults. The Councils response shows it has not taken account of the law.
  4. The second appeal decision says it is Mrs M’s responsibility to arrange Mr B’s transport to “school” and that she should accompany him if necessary. The Council says this was “a generic reference to an institution of learning”. It is further evidence the Council has not taken account of the law. Different regulations apply to schools, sixth forms and further education colleges.
  5. Mr B does not attend school. He is an adult. He attends a further education college. While Mrs M has shown great commitment to Mr B’s education by her determined application on his behalf for transport, Mrs M no longer has any responsibility to arrange his transport to college or accompany him if necessary.
  6. The second decision letter says “the Council is not judging your child’s capacity to travel alone”. It should.
  7. The notes of Mrs M’s second appeal say the Panel “may require further advice from OT/Physio and Adult Social Care”. The Council’s policy says the Council should obtain this information when it first receives an application. The Panel appears not to have had all the information necessary to make a decision, and this appears to be the result of fault by the Council. As a result, its decision is flawed.
  8. In response to my enquiries, the Council said, “It was later decided [further advice] was not required and the decision would stand.” The Council has not provided any evidence of how it made the decision that further advice was not needed, or the reasons why. This is fault.

Other people

  1. I asked the Council how many applications for transport it received from or on behalf of adults with EHC Plans for the academic year 2018/2019, how many applications the Council approved, and how many appeals were successful. The Council said it did not have this information available. This is fault.

Agreed action

  1. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred. When this is not possible, we may recommend the Council makes a symbolic payment to acknowledge what could have been avoidable distress, harm or risk. We may also recommend the Council takes action to improve services for others.
  2. The Council’s travel assistance policy for post-16 students is flawed. I recommend the Council re-writes the policy, taking account of the law and government guidance. The law says this must be done by 31 May.
  3. The Council’s decision on Mrs M’s application for Mr B’s transport is flawed. The Council should assess Mr B’s transport needs, including his ability to travel alone. The Council should then re-make the decision, taking account of the law and government guidance, and provide a decision with valid, lawful reasons. The Council should do this within two weeks of my final decision.
  4. If, having considered all the circumstances of Mr B’s application and found Mr B is able to travel safely and independently, or that a parent is able and willing to provide his transport, the Council decides it is not necessary to provide transport to facilitate his attendance at college, the Council should invite Mrs M to appeal and consider her appeal afresh, providing valid, lawful reasons.
  5. If the Council decides to provide transport, the Council should provide redress, to be agreed with the Ombudsman, for the transport Mrs M has arranged since the beginning of the academic year. The Council should do this as soon as possible, and within one month of my final decision.
  6. The Council should apologise for its handling of Mrs M’s 2018 application and appeals and offer a payment of £250 for her time and trouble in pursuing the matter. In addition, the Council should pay the £50 fee Mrs M paid for her advocate at the second appeal. The Council should do this within two weeks of my final decision.
  7. The Council should provide the information I requested about the number applications for transport it received from or on behalf of adults with EHC Plans for the academic year 2018/2019, how many applications the Council approved, and how many appeals were successful. The Council should provide this information within one month of my final decision.
  8. The Council accepted my recommendations.

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Final decision

  1. The Council accepted my recommendations, so I have ended my investigation.

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Investigator's decision on behalf of the Ombudsman

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