Summary: Mrs X complains on behalf of her adult son, Mr Y, that the Council wrongly refused to help with the cost of transport to the specialist college named in Mr Y’s EHCP. The Ombudsman finds the Council’s decision making was flawed because it assumed that Mrs X and other family members were available to transport Mr Y to college. The Council will retake its decision, apologise to Mr and Mrs X and pay £200 in recognition of the avoidable time and trouble caused by its fault.

The complaint

1. The complainant, whom I will call Mrs X, complains about the Council’s refusal of transport assistance for her 19-year-old son, whom I will call Mr Y, to attend the specialist college named in his Education Health and Care Plan (EHCP).
2. Mr and Mrs X says the Councils actions have caused injustice to them because they are expected to transport Mr Y to and from college without assistance, thus impacting on their ability to work. Mr Y has also suffered injustice, according to Mrs X, because he is not receiving the transport assistance he is entitled to.

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. 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)
5. 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

6. During my investigation I have discussed the complaint with Mrs X and considered any information she submitted.
7. I made enquiries of the Council and considered its response. I also consulted the relevant law and statutory guidance around entitlement to transport provision for adult learners.
8. I issued a draft decision and invited comments from Mrs X and the Council. I considered any comments received before reaching a final decision.

Back to top

What I found

What should happen

9. Sections 508F and 508G of the Education Act 1996 require councils to make transport arrangements they consider ‘necessary’ (or the Secretary of State directs) to help the attendance of relevant young adults at institutions where the council has secured the provision of education for the adult concerned. This duty applies to:
• adults (i.e. those who are aged 19 or over) for the purpose of facilitating their attendance at council maintained or assisted further or higher education institutions or institutions within the further education sector; and
• relevant young adults, who started their current course after their 19th birthday, with an EHC plan (which can only be maintained up until the age of 25) for the purpose of facilitating their attendance at institutions where they are receiving education or training outside the further and higher education sectors.
10. Any ‘necessary’ transport must be free.
11. When considering whether it is required to make transport arrangements for an adult learner, 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.
12. 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 councils 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 mobility car scheme for those in receipt of DLA and PIP. Unless the council in question is the legal appointee for the disabled person, it is not in charge of the motability agreement and cannot specify how a mobility vehicle can be used.
13. The Council’s ‘Post 19 Travel Assistance Statement, Clarification of Entitlement 2019-20’ says the Council will consider, “if there is a family member/carer who is able to transport the student and why it would not be a reasonable arrangement to make.

What happened

14. Mr Y has an EHCP naming a specialist college around four miles away from his home. Mr Y started the college course after his 19th birthday. Mrs X says the car journey from their home address to college can take 35 minutes, depending on traffic. Both Mrs X and her husband, Mr X, work. Mrs X says she often has to change her hours of work to enable her to drive Mr Y to college. Mr X has recently changed jobs due to the difficulty in getting Mr Y to and from college.
15. Mr and Mrs X applied to the Council in July 2018 for post-19 transport support because, due to their work commitments, they could not continue transporting Mr Y to and from college.
16. The Council refused the application for transport support because it pointed out that it had not arranged or funded Mr Y’s placement at college, and therefore was not responsible for providing any transport assistance. Mrs X provided further information. The Council then reviewed Mr Y’s EHCP and named the college in September 2018.
17. Mrs X appealed the Council’s refusal of transport. The Council considered the case. There are no notes of the review, but the refusal letter shows the Council decided not to uphold Mrs X’s appeal because:
• there is limited or no evidence to show that other travel arrangements have been considered, and why these alternatives are unsuitable
• there is no evidence that Mr and Mrs X have applied for a bursary for Mr Y
• there is limited or no evidence to show what other funds could be used to support Mr Y’s travel to college
• Mr and Mrs X have not showed there are no relatives or carers who could make adjustments to support Mr Y in travelling to and from college
• Mr and Mrs X have not confirmed whether Mr Y receives higher rate mobility of Personal Independent Payments (PIP) which could be used to secure transport assistance
• Mr and Mrs X have not said whether Mr Y has the use of a Motability car
18. Mrs X again challenged the Council’s decision. She confirmed that Mr Y does receive PIP. Senior managers reviewed the case but decided that it was not ‘necessary’ for the Council to fund transport. Dissatisfied with the Council’s decision, Mrs X submitted a formal complaint and approached the Ombudsman.

Was there fault in the Council’s actions causing injustice?

Transport decision

19. The Council’s decision making was flawed in Mr Y’s case. This is because there is no basis in law which allows the Council to impose an obligation on Mr Y’s parents to take him to college. Mr and Mrs X have made clear why they are not available to transport Mr Y, “to reiterate what we put on our form and email, myself and [Mr Y’s] dad both work and we have no family members or friends that can help as they all work and have their own commitments, I have explored this”
20. The Council also makes clear that Mr Y has access to a mobility car. It is entitled to take this into account, but it must also consider that he cannot drive it himself and no-one else has volunteered to drive the car on his behalf.
21. Once Mrs X explained that she was not available to drive Mr Y, the Council should have accepted this and assessed Mr Y’s transport needs without further reference to the availability of a driver. Instead, the Council continued to assert that Mr Y’s parents were available and able to transport him. This was an irrelevant consideration. Therefore, the Council has not made its decision properly.
22. 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. Although the Council points out that Mr Y receives PIP, it cannot assume that all or most of Mr Y’s mobility component is available for use towards college transport. Mr Y may have other transport needs which the Council would need to consider. The Council has not yet done so.
23. In my view there is fault in the Council’s actions causing injustice to both Mr Y and his parents. The Council has agreed to undertake the actions listed at the end of this statement to remedy the injustice caused by this fault.

Review process

24. The statutory government guidance ‘Post-16 Transport and Travel Support to Education and Training’ makes clear that council policy 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.
25. The statutory guidance also says, “good practice suggests using a similar 2 stage complaints process as that used for pre 16 appeals”. The pre-16 guidance recommends that councils offer an appeal hearing following the refusal of free home-to-school transport.
26. 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.
27. 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 Y’s case in August 2018. The letter subsequently sent to Mrs X outlines the reasons for refusal, but it does not give the names and roles of the officers who considered the case, nor does the letter evidence that the officers considered the specific points put forward by Mrs X. This is fault.
28. This creates further uncertainty about the way in which the Council considered Mr Y’s case. It has agreed to undertake the actions listed at the end of this statement to remedy the injustice caused.

Delay and poor customer service

29. In its response to Mrs X’s complaint, the Council accepted that its review of her transport appeal was not completed within the 20 working days as per its policy. The Council apologised for this. The Council also accepted that, due to a recent office move, the service area had experienced problems with its telephone lines. This had impacted on Mrs X’s ability to make contact by telephone. The Council apologised for this.
30. The Council will pay £200 to Mr and Mrs X. This is for the avoidable time and trouble caused by both the general handling of Mr Y’s review, and the delay and poor customer service already identified.

Agreed action

31. Within four weeks of my final decision, the Council has agreed to:
• Apologise to Mr X and Mrs X for the faults identified in this statement;
• Pay £200 for the avoidable time and trouble caused by the handling of the case; and
• Retake its decision. The Council should consider whether it owes a transport duty to Mr Y, under section 508F(1) of the Education Act 1996, on the basis there is no volunteer available to transport him. It will share a copy of this decision with Mr Y, his parents and us.
32. If the Council decides that it is necessary to transport Mr Y to college, the Council will, within two weeks of making that decision:
• Contact Mr and Mrs X to obtain details of their expenses for the period during which they have transported Mr Y to college. The Council will repay these transport costs as well as an additional £500 for the distress caused.
33. Within eight weeks of my final decision, the Council will also:
• Provide evidence to the Ombudsman to show it has reviewed and updated its post-19 Policy Statement. The Council will ensure the contents of the statement are in line with the requirements of the statutory government guidance.

Back to top

Final decision

34. I have completed my investigation with a finding of fault for the reasons explained in this statement. The above recommended actions appropriately remedy any injustice caused by Council fault.

Back to top

Investigator's decision on behalf of the Ombudsman