Summary: Ms B complains that the Council was wrong to refuse post-19 transport for the 2018/19 academic year for her adult daughter C, who has a disability and complex needs. The Council has agreed to the Ombudsman’s recommendation that it pay Ms B £3,000 towards her transport costs for the 2018/19 academic year and to pay Ms B and C a total of £900 to reflect the injustice caused to them over the course of the last year.

The complaint

1. Ms B complains that the Council has:
• refused to provide transport for her adult daughter, C, who has a disability and complex needs, to attend the specialist college named by the Council’s Special Educational Needs Assessment and Review Service in her Education and Health Care Plan;
• taken into consideration irrelevant factors, such as whether C’s circumstances are exceptional and her mother’s finances in considering whether it is necessary to provide transport for C; and
• has wrongly refused to consider her appeal against the refusal to provide transport through the appeals process.
2. This has caused the family distress and significant hardship and has impacted psychologically and emotionally on them.

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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)

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How I considered this complaint

5. I have considered Ms B’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response, including copies of correspondence and C’s care records. I have had regard to relevant legislation as set out below, and to the Ombudsman’s recent report reference 17 017 296. I have also sent Ms B and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Care assessments

6. Under the Care Act 2014 and Care Act Guidance, councils have a duty to carry out an assessment where “an adult may have needs for care and support” and, also consider carrying out a carer’s assessment if it appears a carer may have a need for support.
7. The care assessment must identify the total extent of needs before a council considers the person’s eligibility for care and support. Any eligible needs met by a carer are not required to be met by the local authority, for as long as the carer continues to do so. The council must consider whether the carer is, and will continue to be, “able and willing” to care for the adult needing care. This must include consideration of the carer’s activities beyond their caring responsibilities, for example employment or a desire to work.
8. A person and his/her carer will have the best understanding of how the needs identified in a care assessment will best fit into their lifestyle and help them achieve the day to day outcomes identified.
9. Where a council has determined a person has eligible needs that are not being met by a carer, it must meet those needs (subject to the applicant meeting the financial criteria).

Parental responsibility

10. The Care Act guidance states the importance of full-time programmes for young people aged 16 and over to “allow parents to remain in employment full time”. (Paragraph 16.22)
11. Parents and carers are responsible for ensuring children of compulsory school age attend school. There is no similar duty for dependent adult children with an Education, Health and Care plan (EHCP). An EHCP is for children and young people between 0 and 25 years old in education, who have additional needs. The plan coordinates a child or young person’s health and social needs and sets out any additional support they may need. (Education Act 1996, section 7)
12. Parental responsibility ends when a young person reaches age 18 years old.

Transport to education setting

13. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” (or that the Secretary of State directs) to facilitate the attendance of relevant young adults at institutions where the local authority has secured the provision of education for the adult concerned.
14. Relevant young adult means an adult who is under 25 years old for whom an EHCP is maintained. (The Children and Families Act 2014, section 82)
15. When a council finds it is “necessary” to provide transport for the young adult under section 508F, then the transport must be free of charge (Education Act 1996 section 508F(4)).
16. If a local authority does not consider it “necessary” to provide transport under section 508F it may still choose to pay some or all of the reasonable travel costs under section 508F(8) or as social care provision under the Care Act.
17. Under section 508G of the Education Act 1996 local authorities are required to set out information about the travel provision they have in place for relevant young learners so they and their families can make informed choices between institutions. The SEN Code of Practice 2014 requires councils to have clear policies about transport in their Local Offer.
18. Councils can make payments to parents and carers of pupils with SEN to act as an escort or use the family car to transport them. Government guidance - Home to School Travel for Pupils Requiring Special Arrangements (2004) - says councils should set out in their policy when they will do this, and the amounts parents or carers are entitled to.
19. The application of a transport policy in relation to a disabled young person engages the Equality Act 2010. Councils are required to have regard to the need to advance equality of opportunity to access education between persons with a disability and those without.
20. The Department of Education’s Statutory Guidance for post-16 Transport (2014/ 2017) says any complaint or appeal procedure about a transport decision should be published alongside the local authority travel policy statement.
21. The Upper Tribunal (Administrative Appeals Chamber) has considered transport for post-19 learners with an EHCP (section 508F). The Tribunal commented that:

“The local authority has a duty to make transport arrangements for [a post-19 learner] if they consider that to be ‘necessary’ having regard to all the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangement and the transportation must be free of charge.” (Staffordshire County Council v JM, 2016] UKUT 246 (AAC)

The Council’s post-19 transport policy

22. The Council’s previous policy was the Adult Education Transport Policy Statement 2017-18/2018-19. It stated, amongst other things:
• “the Council does not consider it necessary to make any general arrangements for free transport or the payment of any travelling expenses. Whilst the Council retains a discretion to make such arrangements or payments, its policy is to do so only where it considers the circumstances are exceptional.
• if someone considers their circumstances are exceptional, he/she should apply to the Council in writing, providing information as set out in the policy document. The policy document asks a young adult to provide relevant details including the person’s age, current travel arrangements, the route, how the Council could assist. It also says applicants may be asked to provide other information to support their application.
• each application will be processed as quickly as possible. The decision will be provided in writing within 21 days of the receipt of the application.”
23. As of June 2019, the Council introduced the 0-25 Travel Assistance Policy: 2019/20. This states:

“The Council does not consider it necessary to make any general arrangements for free transport or the payment of any travelling expenses under section 508F of the Education Act 1996 and will only consider doing so for individuals if they have an EHC plan or the circumstances are exceptional.

The Council will consider whatever is said in any application but will have particular regard to the following:

• Distance and journey time from the applicant’s home to their place of education and the cost of providing travel assistance to there
• What alternative means of facilitating attendance there may be
• What alternative institutions or options there may be
• The contents of any EHC plan (including anything about transport)
• The best use of the Council’s resources and the competing claims upon them
1. The Council is required by law to provide any travel assistance considered necessary under section 508F free of charge.”

What happened

25. Ms B’s daughter C has a disability and complex needs. Ms B is C’s sole carer and works full time; the nature of her employment requires her to work long hours.
26. C attended a present specialist school for the duration of her secondary school career. Throughout her compulsory secondary education, the Council provided transport for C on a commissioned private hire vehicle, with the provision of a pupil guide, with at least two other students who also attended the school.
27. Once C finished Year 11, she continued at the same school. Ms B applied to the Council for post-16 travel assistance. The Council agreed to this with C’s record stating the rationale for making the award of travel assistance as “currently on transport, no change of circumstances, mum is a working single parent as have previously been informed”. The Council provided transport in the same form as before though, under the Council’s post-16 policy, Ms B was required to make a financial contribution towards the cost of transport.
28. The Council reviewed C’s EHCP in 2018 and named a Specialist College. Ms B then applied for post-19 transport for C.
29. The Council responded and explained that, except in exceptional circumstances, it would not provide transport assistance to facilitate the attendance of adults receiving education, and that it was is not obliged to do so under section 508F of the Education Act 1996. It said it was however willing to consider if there were exceptional circumstances which would warrant it providing such assistance. To assess this, it requested the following:
• details of C’s special educational needs and disability and whether they make attendance at the Specialist College impractical or impossible without additional assistance;
• confirmation that C is unable to access a nearer educational establishment to her home address;
• information about whether C is able to access public transport;
• details of Ms B’s family’s financial circumstances with particular reference to how much she can afford to pay for C’s travel, details of other financial assistance received and relevant travel costs;
• any relevant information from the Specialist College; specifically, the details of any conversations with staff at the Specialist College in respect of transport assistance available to facilitate C’s education at the college to C;
• the availability of any other transport assistance that could facilitate C’s attendance at the Specialist College; and
• confirmation of the transport arrangements currently in place to facilitate C’s daily attendance at the Specialist College.
30. Ms B submitted an appeal in late August, explaining that:
• C had received transport from the Council for several years due to her complex needs and there had been no changes to her situation;
• the Council had named the Specialist College in C’s EHCP and there was no closer alternative college available which could meet C’s needs; and
• if the Council did not provide transport, C would not be able to access the education provision she needs.
31. In the absence of other support from the Council, C’s Continuing Healthcare (CHC) Nurse arranged for an escort to accompany C to college, with NHS CHC funding. However, Ms B had to pay the cost of the taxi to take C to the college, incurring costs in excess of £3,000.
32. The Council responded to Ms B’s appeal in mid-October (with a letter dated late September) and explained that it did not consider that the additional information provided warranted a change in the decision to refuse transport for C.
33. Ms B responded to the Council the following week. She raised concerns about the review process, the criteria the Council used to decide applications and its post-19 policy. She explained that she considered that, as a young adult attending the Specialist College named in her EHCP, C was entitled to transport. She emailed again in mid-November as she had received no response.
34. The Council responded in early December, explaining that Ms B had not provided the information requested in order for it to assess her application. Ms B replied the next day and explained that most of the information the Council required was contained in C’s EHCP which named the Specialist College as the only college offering a placement. She also questioned what obligation she had to contribute to the travel costs of a young adult over 19 years of age.
35. At the end of January 2019, Ms B complained to the Ombudsman, who asked the Council to respond to her complaint. The Council wrote Ms B in mid-February asking for the same information as before but, after a further email from Ms B, accepted that Ms B had already provided the information in her December 2018 email.
36. The Council then wrote to Ms B in late March, again rejecting her application, but advising that she could request a review. However, shortly after, the Council emailed her to say that it needed further information on her financial situation to make a decision on her application.
37. Ms B responded by email at the end of March again querying the request for financial details. The Ombudsman then opened an investigation into her complaint.
38. Following the Ombudsman’s enquiries, the Council:
• used its new draft Adult Access to Education Policy to reassess Ms B’s application for C;
• taking into account C’s circumstances and the recent Ombudsman report, agreed to provide transport for C to the Specialist College for the 2019/20 academic year, following the withdrawal of the present transport arrangements from the end of the 2018/19 academic year;
• agreed to contact Ms B to discuss what travel will best meet C’s needs in order to ensure that it is in place for the start of the new academic year.
39. However, the request was not passed on to the relevant officer, so no transport was in place for C at the start of the 2019/20 autumn term on 3 September.
40. The Council apologised for this failure to action what had been agreed. It explained that it had reviewed the processes for new post-19 provision following the Ombudsman’s report. It said that the new service was working well, and an independent senior officer had reviewed those post-19 pupils outside the new process. However, C’s transport had been agreed before these processes were implemented and unfortunately overlooked. The Council agreed to undertake a full review the same day of any post-19 pupils awarded travel assistance prior to the new process and policy.
41. The Council asked Ms B to explain what transport was needed, before scheduling this, though Ms B explained that the Council already knew C’s needs, the term dates and start / end times at the college. Transport was then arranged but sent to the wrong address, so Ms B had to make alternative arrangements until 17 September.

My assessment

42. There was fault in the way the Council considered Ms B’s application for post-19 transport for C:
• It is the Council’s responsibility, not Ms B’s, to ensure it meets C’s needs as set out in her EHCP.
• The Council has a statutory duty to provide post-19 transport if it considers it necessary to do so.
• C is over the age of 18, so her transport was not Ms B’s responsibility.
• Ms B was not willing and able to take C to college, as had been the case for the duration of C’s secondary education. So the Council should have only considered how C would get to college and whether funding was necessary.
• Ms B’s financial situation was therefore not a relevant consideration.
43. In the absence of support from CHC funding for C’s transport arrangements this year, the Council accepts that it is necessary for it to provide transport support for C to college this year. However, the CHC funding available for 2018/19 only covered the costs of C’s escort. Ms B had to pay the taxi costs of over £3,000.
44. Given that the Council considers it necessary to provide transport for C this year and that C’s transport need is no different from that provided for the duration of C’s secondary schooling, I consider it reasonable to conclude that it was also necessary for the Council to make provision for any transport costs for 2018/19 which were not covered by CHC funding. The Council should therefore have been responsible for putting in place transport for C and defraying those costs.
45. Instead, Ms B was forced to make her own arrangements at short notice with the accompanying stress for both herself and her daughter at the start of the autumn term both last year and this. The cost of providing transport also involved considerable personal hardship for both herself and her daughter.
46. As regards Ms B’s complaint that the Council should have put her appeal through the appeals process which it used for post-16 transport, the applicable policy for post-19 transport was the Adult Education Transport Policy Statement 2017-18/2018-19. Under that policy, “complaints about transport assistance will be investigated under the Council’s complaints policy”, so there was no fault in the Council using its complaints process to consider her appeal. That said, there was a three-month delay from December 2018 to March 2019, when the Council did not respond to Ms B’s review request despite her having provided the requested information.

Agreed action

47. The Council has already taken steps to amend its policy and procedures in response to the Ombudsman’s earlier report. It has also taken steps to avoid a repetition of the recent delays in providing transport support for C.
48. However, the Ombudsman has also recommended further steps to remedy the personal injustice caused to Ms B and C. The Council has agreed the following actions, which the Ombudsman considers should be undertaken within six weeks of this decision:
• To apologise to both Ms B and C for the way it handled the post-19 transport application and the way it handled the whole process.
• To pay Mrs B £3,000 towards the costs that she incurred in arranging transport for C to college both last year and at the start of this year.
• To pay C £400 to acknowledge the disruption and accompanying distress and anxiety caused to her through the failure to put in place appropriate travel arrangements at the start of the autumn term in both 2018/19 and 2019/20, and the impact of the hardship on her resulting from Ms B having to pay her transport costs.
• To pay Ms B £400 to acknowledge the anxiety and distress she experienced in having twice to put in place arrangements for her daughter at short notice, together with the stress and hardship caused by her having to find an additional £3,000, as a single parent, to pay her daughter’s transport costs.
• To pay Ms B £100 to acknowledge the time and trouble she took to pursue her complaint.

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Final decision

49. I have closed my investigation into Ms B’s complaint on the basis that the actions agreed represent a suitable remedy for the injustice caused towards Ms B and C.

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Investigator's decision on behalf of the Ombudsman