Summary: Miss X complained about the Council’s decision to refuse travel assistance for her son. The Ombudsman finds there was some fault in the way the Council considered her appeal. This caused Miss X uncertainty as to what the outcome may have been. I have recommended that the Council apologises to Miss X and reconsiders her appeal.

The complaint

1. Miss X complains the Council has refused her application for home to school transport for her son, Y. Y has special educational needs and Miss X says it is not safe for him to travel independently. Specifically, she says that the Council failed to:

• consider the new information she provided to the panel. This included a letter from Y’s social worker and a psychologist;
• consider her personal circumstances, the time and costs associated with taking Y to School and the impact on her two young children;
• advise her that she needed to apply for transport. She says the headteacher told her to apply online, one week before the school term began in September 2018.

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The Ombudsman’s role and powers

2. 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)
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. In considering this complaint I have:

• spoken to Miss X and read the information she provided;
• made enquiries of the Council and reviewed its response;
• considered the Council’s post 16 travel assistance policy.

5. I wrote to Miss X and the Council with a copy of my draft decision and invited their comments. I considered the comments I received.

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What I found

6. Local authorities do not have a statutory duty to provide free transport to school or college for students who are of compulsory school age.
7. They have a duty to publish a transport policy statement for post-16 transport setting out their transport arrangements and the financial help available for learners of sixth form age and up to 19 if they have learning difficulties and/or disabilities. Transport may go beyond the age of 19 if the student is continuing on a course started before that age.
8. Statutory guidance ‘Post-16 transport and travel support to education and training’ (January 2019) says local authorities have discretion to set their own arrangements but they must have regard to the following:

• the needs of those students for whom it would not be reasonably practicable to access education or training provision if no arrangements were made. It says the needs of young people with special educational needs and disabilities should be specifically considered.
• the distance and journey from the students’ home to the place of learning. The Guidance says “In determining whether transport arrangements are necessary, local authorities should take into account other factors, such as the impact a learning difficulty or disability may have on a young person’s ability to walk this distance, and the nature (including safety) of the route, or alternative routes, which a young person could be expected to take.” It also says “Journey time also needs to be taken into account. Young people should be able to reach their education setting without incurring such stress, strain, or difficulty that they would be prevented from benefiting from the education provided.”
• the cost of transport and the need to target support on those who need it most, particularly low-income families.

The Council’s policy

9. The Council’s travel assistance policy states that the Council will offer travel assistance if the student has an Education, Health and Care Plan (EHCP) and is unable to walk or use public transport (even when accompanied) due to their learning difficulty and disability.
10. The Council’s policy says it does not offer help for students with an EHCP if they are not a full-time student. Full-time is defined within the policy as 16 hours or more timetabled sessions per week. The policy also says it does not offer help for students with an EHCP if they can travel on public transport when accompanied. The Council does not generally consider work or childcare commitments as an exceptional reason for travel assistance to be provided.
11. The Council has a two-stage appeal procedure. The first stage is a review of the application by a senior officer. The second stage is a review of the papers by an independent appeal panel followed by a detailed decision letter. The Council’s policy says that decision letter must set out the following:

• how the review was conducted;
• information about what other departments and/or agencies were consulted;
• what factors were considered;
• the rationale for the decision reached;
• information about the Ombudsman.

What happened in this case

12. Y is 17 years old and attends alternative education provision at an establishment 18 miles from home. Y has been attending this provision since Year 11 and previously accessed transport as part of the provider package and did not receive separate travel assistance from the Council. Travel assistance was not automatically provided once Y entered year 12.
13. Y has special educational needs and has an EHCP. Transport is not specified in his EHCP. He has a child in need plan which states that Y “needs to be able to access transport to school which he feels comfortable with and is able to cope with.”
14. On 31 August 2018 Miss X completed a travel assistance application in respect of Y and ticked that he attended more than 16 hours of timetable study per week. Miss X provided copies of:

• Personal Independence Payment (PIP) for Y;
• ECHP;
• Mental health report dated 15 June 2018;
• Psychologist report dated 17 July 2018;
• Income support letter

15. The Council responded to Miss X on 6 September refusing travel assistance. It said that “the evidence supplied does not demonstrate why [Y] is not able to make the journey, even when accompanied”. This is the criteria used to determine whether a student is eligible for travel assistance. The letter explained Miss X’s right to request a review of the decision. It explained that the review process would check if there were “any special and exceptional circumstances to offer help with travel as a concession.”
16. The Council refused Miss X’s application at both stages of the appeal process.
17. On 15 October the Council sent Miss X a letter a stage one of the appeal process, upholding the decision to refuse travel assistance. The Council said, it had considered if law and policy had been properly applied and checked if there were any special and exceptional circumstances for the Council to offer help with travel as a concession. The letter listed the documents provided by Miss X and confirmed it had contacted the education provider to enquire about Y’s attendance and any recent issues. The letter explained that the Council does not offer transport where the young person could use public transport when accompanied. It concluded that the evidence showed that Y was able to make the journey to school even when accompanied.
18. On 30 October Miss X requested a stage two review on the Council’s decision. In addition to the documents she provided at stage one, Miss X provided a copy of a child in need plan and safety plan for Y and a letter of support from Y’s social worker. The letter stated “[Y] struggles to use public transport and recent journeys have caused [Y] to have issues with soiling. This had been evident when [Y] arrives at school. This is impacting [Y’s] self-esteem and confidence as he feels embarrassed…this is compounding Y’s social anxiety and impacting negatively on the relationships he has at [the provision]. This appears to be linked to his use of public transport and increased anxiety levels when in this situation”. Miss X went on to explain the difficulties she faced in transporting Y and her younger child to and from school. She said the travel was impacting her health and wellbeing and finances.
19. On 4 December 2018 the Council sent a stage two review/appeal outcome letter to Miss X upholding the decision to refuse travel assistance. The review was completed by an independent panel. The Council said it had considered whether there were any “special and exceptional circumstances” for it to offer help with travel as a concession. It had considered the information provided by Miss X including, Y’s EHCP, stage one appeal form, stage one response letter, hospital letter, psychologist report, PIP award letter and behaviour and incidents reports for 2016/17.
20. The Council said that Y’s EHCP stated that he attended the education provision for 12 hours per week. It said that in accordance with its transport policy students need to be studying a minimum of 16 hours per week. Y did not meet the criteria and transport was refused on this basis.
21. In response to my enquiries the Council said “the number of hours per week that [Y] was studying was not a factor in the stage 1 appeal as [Miss X] had stated that [Y] was studying for 18 hours per week. [Miss X] also provided a timetable, and whilst it was clear that the times given had been physically altered, the information was accepted on face value. It was not until the stage 2 appeal that the hours were checked with the provider and it was found that the times provided by the parent were not correct and [Y] was studying for 12 hours per week which is below the level specified for consideration of transport in the Transport policy.” 
22. Miss X also complained that the school failed to advise her that she needed to apply for transport. She said the headteacher told her to apply online, one week before the school term began in September 2018

Analysis

23. It is not the role of the Ombudsman to decide whether someone should receive support with transport to college. We only consider if there was fault in how the Council reached its decision.
24. As a key principle of good administration, the Ombudsman expects councils to be able to demonstrate how and why they have reached their decision. In exercising a discretionary policy like this one, councils need to show they have considered individual circumstances of the case and applied the policy fairly. It must also be able to demonstrate it has not “fettered its discretion” by applying any aspect of the policy to rigidly.
25. In its stage one response the Council acknowledged Miss X’s comments that Y had soiled himself on the day she travelled with him by public transport. But said it was pleased to note that Y had attended the education provision every day since the start of term and has had no further issues making the journey to school. The Council considered this as further evidence that it was not required to make travel assistance arrangements for Y, as Y has been able to access education consistently. I find this evidence uncompelling as the Council has not assessed the sustainability of the current travel arrangements and the impact on Miss X and Y’s sibling.
26. In its stage two response the Council said, “transport was not agreed at the stage 2 appeal as the criteria in relation to the number of hours studying per week had not been met.” This statement suggests that the Council may have fettered its discretion. The Council said it had considered whether there were any “special and exceptional circumstances” for it to offer help with travel as a concession but does not provide a reasoned analysis of the information it considered. The response letter does not address the evidence provided by Miss X, including the letter from Y’s social worker and Y’s child in need and safety plan. Miss X’s request for travel assistance was in part based on the impact this was having on her own health and finances and also transporting Y’s sibling to school. The Council has not demonstrated whether this information was considered or provided any reasoned analysis of the information.
27. I cannot say whether, if the Council had properly considered the evidence and provided clear information about why travel assistance had been refused at stage two, it would have offered Y travel assistance. However, it is my view that the Council cannot show that it had properly considered Miss X’s special circumstances and has not explained why they were not considered exceptional enough to depart from its home to school travel policy and offer transport assistance to Y. This is fault. The injustice to Miss X is that she cannot be sure her appeal has been properly considered and further distress.
28. In response to Miss X’s complaint that the Council failed to inform her that she needed to apply for transport the Council said that it has acted in accordance with the guidelines set out by the Department for Education. The Council said “the post 16 statement is available on the Council’s website alongside all other school transport arrangements and details of the Council’s two stage appeals process. There is no statutory duty to inform parents on an individual basis and Staffordshire County Council does not therefore write to all post 16 parents inviting them to apply for travel assistance.” I am satisfied with this.

Recommended action

29. To remedy the injustice caused, I recommend the Council should:

• Apologise to Miss X for the faults identified above;
• Refer the case back to the transport appeals panel to reconsider. Miss X should be invited to provide new and additional evidence in support of her appeal. It should record how the panel reached its decision and what evidence it has taken into account. The decision letter should explain the reasons for the decision and show how the panel has considered the individual circumstances of the case.
• If the revised decision is to award transport assistance, the Council should reimburse Miss X for any reasonable expenses in providing transport for Y during the time he has been without transport assistance.

30. These actions should take place within four weeks from the date of my final decision.

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Final decision

31. The Ombudsman finds there was some fault in the way the Council considered Miss X’s application for post-16 transport for her son. This caused Miss X uncertainty as to what the outcome may have been. I have recommended the Council reconsider the appeal.
32. The Council has agreed to my recommendations and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman