London Borough of Bexley (18 015 847)

Category : Education > School transport

Decision : Upheld

Decision date : 30 May 2019

The Ombudsman's final decision:

Summary: the Council’s travel assistance policy for post-16 students and its decisions to refuse Ms M’s application for Mr B’s transport and her subsequent appeals are flawed. The Council has agreed to revise its policy, apologise and make a symbolic payment to acknowledge the disruption to Mr B’s education before the Council agreed to arrange his college transport.

The complaint

  1. Ms M complains the Council refused to provide transport for her son, Mr B, to college. She complains that by the time the Council made arrangements for his transport, Mr B had missed the first 10 weeks of term.

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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)
  4. 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 our decision with Ofsted.

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How I considered this complaint

  1. I have considered:
    • information provided by Ms 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 Ms M and the Council to comment on my draft decision.

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What I found

  1. Ms 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. Mr B was due to start college in September 2018. Ms M applied for transport on 22 June 2018. She contacted the Council two weeks before Mr B was due to start because she had not received a decision. The Council refused Ms M’s application. Ms M took Mr B to college by bus for the first week of term, but the journey made him ill. She appealed the Council’s decision at both stages of the Council’s appeals process. Her appeals were unsuccessful. However, the Council then held an “early review” and decided to provide transport after all.
  3. Mr B is autistic. He has significant learning difficulties and neurological problems, including muscle weakness and stiffness. He is able to walk short distances but uses a wheelchair to travel longer distances. He suffers profound anxiety and cannot travel in crowds. He also suffers from ulcerative colitis.

Post-19 transport to education and training

  1. Councils 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.” The policy lists seven eligibility criteria.
  2. 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.”
  3. If the Council decides not to provide transport, applicants have a right of appeal.

Ms M’s application

  1. Ms M submitted an online application on 22 June 2018.
  2. The Council decided not to provide transport, although I have not seen a decision letter.
  3. Ms M appealed the Council’s decision on 28 August 2018.
  4. The Head of the SEN Service reviewed the documentation Ms M submitted and rejected her appeal. The Council’s decision letter, dated 20 September 2018, said:
    • national as well as local travel assistance criteria for home to school distance is 2 miles for children under 8 years of age and 3 miles for children aged 8 years and older. Mr B lives 2 miles from school and therefore does not meet the criteria;
    • however, the Head of the SEN Service had considered Mr B’s current health needs and agreed to provide transport while “further health investigations are taking place.”
  5. The letter said it can take up to 30 working days for shared transport to be organised.
  6. The letter invited Ms 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.
  7. Ms M submitted a Stage 2 appeal on 4 October 2018.
  8. A Panel considered Ms M’s appeal. The brief notes of the appeal record that:
    • Mr B has severe learning difficulties, ASD and some health issues;
    • his travel assistance application was declined on the statutory walking distance criteria;
    • the family usually travel with Mr B on the bus unless the family car is available;
    • Mr B attends a college which is a short walk and one bus ride away;
    • Ms M cannot accompany Mr B to college because she is home-educating his brother.
  9. The Panel did not uphold Ms M’s appeal, but decided to provide travel assistance for one term while “further health investigations” were undertaken and an assessment for travel training was offered.
  10. The Council sent a decision letter on 8 November 2018. The Council’s decision letter said:
    • the Council will provide travel assistance until the end of term;
    • Mr B will also have an opportunity to undertake Independent Travel Training;
    • the Council will review the offer of travel assistance in December 2018.
  11. The Council sent another decision letter on 14 November 2018. The Council’s decision letter said:
    • the travel assistance criteria for home to school walking distance is 2 miles for children aged under 8 and 3 miles for children aged over 8. The walking distance for Mr B is 2 miles, so he does not qualify;
    • Ms M’s did not provide evidence Mr B was an “exceptional case”.
    • the letter invited Ms M to submit evidence of Mr B’s exceptional need;
    • it also said the decision was the final stage of the Council’s appeals process.
  12. Following an Independent Travel Training assessment, the Council wrote to Ms M on 19 November 2018 to say it had carried out an early review and decided Mr B’s travel assistance would continue beyond the end of term. The letter said Ms M was no longer required to submit further evidence.

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. I have set out the problems with the Council’s policy in my decision for complaint 18012904 and will not repeat them here. The Council has already agreed to re-write its policy, taking account of the relevant law and government guidance, by 31 May.

Ms M’s application

  1. Ms M says she telephoned the Council two weeks before Mr B was due to start college because she had not heard from the Council. The Council’s policy says travel assistance will generally be implemented within 30 days from the date of an application. The Council does not appear to have made a decision more than 60 days after Ms M submitted her application. This is fault.
  2. 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.
  3. 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 Ms 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.
  4. The Council said it does not conduct home visits as it receives over 800 applications each year. The Council said it only consults with caseworkers “when necessary”, and will consider evidence provided by the parent at appeal. The Council’s actions are at odds with its policy. This is fault. The Council must decide whether transport is necessary. If it requires information to make a decision, the Council must obtain that information. The Council’s policy reflects its duties in this regard. The Council’s failure to follow its policy is fault.

Ms M’s appeal

  1. The Council twice rejected Ms M’s appeals while offering short-term transport to allow “health investigations” to be carried out. On each occasion, the Council made a decision to reject Ms M’s appeal without all the information it needed. This is fault.
  2. It is not clear what, if any, “health investigations” the Council carried out or why the Council finally changed its mind and agreed to provide transport.
  3. The Council’s decisions at both stages of its appeals process are flawed. Both refer to Mr B as a child. Mr B is an adult. Both appeals say Ms M’s application has been refused on distance criteria. 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 stage appeal decision letter says there are no ‘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. The Council failed to consider whether it was necessary to make transport arrangements. This is fault.
  5. The Council’s appeals process is muddled. The Council twice rejected Ms M’s appeals while “further investigations” were still taking place. The Council invited Ms M to appeal at the second stage when the first stage appeal concluded the Council needed to gather more information. The Council then invited Ms M to submit further evidence in the same letter that told her she had reached the end of the appeals process. It is not clear what purpose the appeals process fulfilled. It did not allow the Council to reconsider Ms M’s case in a timely manner. This is fault.

Transport for Mr B

  1. The Council agreed to provide transport “while further health investigations are taking place” on 20 September 2018. The letter said it can take up to 30 working days for shared transport to be organised. Ms M complains Mr B had missed the first 10 weeks of term by the time the Council arranged transport.
  2. In response to my enquiries, the Council said, “Arranging transport afresh or finding a space on an existing route takes up to 30 working days because the routes are agreed based on the number of students and the size of the vehicle agreed with providers at the initiation of the contract. To add a new student to the route will mean the provider arranging a new vehicle or terminating the contract and awarding it to another provider. The process takes time to conclude.”
  3. The Council did not provide evidence any of these considerations applied in Mr B’s case. The delay in arranging Mr B’s transport is fault.
  4. In any event, I find the Council’s policy that learners may have to wait up to six weeks – and miss half a term of their education – for transport arrangements to be made is unfair. It is discriminatory towards learners with special educational needs who are reliant on the Council to arrange transport when compared with learners who could use public transport. If the Council decides it is necessary to make arrangements for a young person’s college transport, it should make those arrangements without delay. The Council should consider making interim arrangements for individual learners if it will take time to amend existing contracts.

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. The Council has already agreed to re-write the policy, taking account of the law and government guidance following an earlier investigation. The law says this must be done by 31 May.
  3. The Council’s decisions to refuse Ms M’s application for Mr B’s transport and her appeals are flawed because the Council based its decisions on irrelevant factors (distance and ‘exceptional circumstances’) and did not have all the information it needed to make the decisions.
  4. The Council should apologise for its handling of Ms M’s 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 £45 Ms M says she paid in bus fares in her attempt to get Mr B to college at the start of term.
  5. The Council has provided no reasons why it took so long to arrange Mr B’s transport, nor any evidence that it approached the matter with any urgency. The Council should have gathered all the evidence it needed to make a decision when Ms M first applied for transport in June 2018. It did not. The Council is, therefore, responsible for the 10 weeks of education Mr B missed and the disruption to the start of his college career. The Council should apologise to Mr B and make a symbolic payment of £1,000 for the education he missed, the disruption to the start of his time at college and the avoidable distress the Council’s faults caused. Mr B can continue his further education until he is 25 if he needs to catch up.
  6. The Council should consider revising its policy and making interim arrangements for individual learners to avoid delay if it will take time to amend existing contracts when the Council decides it is necessary to arrange transport.
  7. The Council should send the apologies and make the payments within one month of my final decision. The Council should make any changes to its policy by 31 May.
  8. The Council accepted my recommendations.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman

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