Summary: Ms X has complained about the Council’s decision to refuse her request for transport assistance to and from sixth form for her daughter. There is evidence of fault by the Council.

The complaint

1. Ms X has complained on behalf of her daughter Y about the Council’s decision to refuse her application for transport assistance to and from sixth form. Ms X says that Y cannot take public transport even if she is accompanied and does not believe the Council properly considered the circumstances.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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

4. I have considered all the information from Ms X and the Council, including its response to my enquires.
5. A copy of this decision was sent in draft to Ms X and the Council. I have considered the comments received in response.

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What I found

6. The law concerning education transport is set out in the Education Act 1996. The government also issued statutory guidance in January 2019 entitled ‘Post-16 transport and travel support to education and training’ which details a council’s duties to adult learners and pupils of sixth form age. The Act says local authorities must provide free school transport for eligible children of compulsory school age in certain circumstances. There is no duty for councils to arrange transport for pupils once they reach sixth form age and local authorities have discretion to decide what transport arrangements are necessary to help young people access education.
7. Council’s must publish a statement detailing the transport arrangements it makes for post-16 pupils. This must include how it considers requests for transport assistance from young people with special educational needs and its appeal process.
8. In this case, the Council’s policy says it will offer transport assistance to students if:

• they are aged between 16 to 18 or continuing a course that started before their 19th birthday;
• they are a full-time student;
• they are studying a course funded by the Council; and
• they have an Education Health and Care plan (EHCP) and are unable to walk or use public transport (even when accompanied) due to their learning difficulty or disability.

The policy also says that the student should be attending their nearest suitable school as specified in their EHCP and be a Staffordshire resident.

9. Y has significant needs and is subject to an EHCP. The Council arranged for a taxi and an escort to take Y to and from the specialist school she attended. In May 2018, Ms X applied to the Council for travel assistance to start when Y began sixth form in September 2018.
10. The Council refused the application. It said that once a student is beyond the age of compulsory education there is no automatic entitlement to free school transport. It said it would not provide travel assistance to students if they can take public transport. Ms X was unhappy with this decision and complained to the Council. She argued that Y cannot take public transport to school, even if she is accompanied. Y is non-verbal, has no understanding of safety or money and often has violent tantrums. Ms X has taken Y to school since the Council stopped providing transport but says this is becoming increasingly difficult due to her work commitments.
11. The Council’s policy details its two-stage review and appeal process. At the first stage, the case is reviewed by a senior officer and a written response is sent to the complainant within 20 working days. If the student remains unhappy, they can ask for a stage two review. At the second stage, the matter is reviewed by an independent appeal panel. The panel members will not have been involved with the original decision and will consider representations from both the student and the Council officers. After the panel has reached a decision it will write to the student and give a detailed notification of the outcome. The policy says this will include:

• the nature of the decision reached;
• how the review was conducted;
• information about the other departments that were consulted;
• the factors that were considered; and
• the rationale for the decision reached.

12. The Council sent Ms X a stage one response in August 2018. As Ms X remained unhappy, the matter was referred to the Council’s transport review panel. The panel considered Ms X’s case in October 2018 and upheld the decision to refuse transport assistance for Y. It said it had considered the information Ms X had provided, but there was no clear evidence to show that Y could not use public transport. The panel also noted that Y had 83.33% attendance at sixth form and said there was no information to show there had been concerns about transport since September 2018. The stage two response also said the panel considered the concerns Ms X had raised about being able to take Y to school. However, it said these were not exceptional circumstances. Ms X is unhappy with this decision and does not believe the Council properly considered the matter.
13. When the Ombudsman considers complaints about a council’s decision to refuse transport assistance, it is not our role to decide if someone should receive transport to school or college. Instead we consider if there was fault with how the decision was reached.
14. The Council has said that it has not seen any clear evidence to show that Y cannot take public transport to sixth form. However, Ms X has provided evidence from Y’s teachers and doctor to support her case and I do not consider that the panel has explained why this information is not sufficient. The panel also does not seem to have considered Y’s EHCP annual review report. The report contains details about Y’s school transport arrangements. It says that Y cannot travel to school safely even when accompanied because of her severe learning difficulties and safeguarding issues. The review also says Y has become volatile and is prone to tantrums. The Council says the panel did not refer to the annual review as Ms X did not submit it or ask the panel to pay particular attention to it when she requested a review. But the annual review is listed in the documents included as part of the appeal and I cannot say the complainant needs to highlight every relevant detail within the evidence provided to the panel. I understand the Council may not agree with the details in the annual review, but this evidence should still have been considered by the panel.

Agreed action

15. The Council has agreed to give Ms X an opportunity to provide further evidence to support her appeal and refer the matter back to the panel to reconsider. If a revised decision is to award transport, the Council should reimburse Ms X for any reasonable expenses she has incurred providing transport for Y. This action should be taken within one month from the date of this decision.

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Final decision

16. There is evidence of fault with how the Council has dealt with Ms X’s application for post-16 transport assistance for her daughter.

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Investigator's decision on behalf of the Ombudsman