Summary: The Council failed to have a policy in place that complied with relevant legislation with regard to home to school transport for young people of sixth form age. As a result Ms F’s application for home to school transport to enable her 18 year old son to attend the college named on his Education, Health and Social Care Plan was refused and this resulted in him missing out on two terms of education for which transport should have been provided. The Council has already amended its policies and will now apologise and pay Ms F £5100 to recognise the injustice this caused her and her son. It will also review and take action to remedy similar injustice caused by the same fault to other applicants.

The complaint

1. The complainant, whom I shall refer to as Ms F, says Hampshire County Council failed to properly consider the grounds of her application and appeal for transport to college for her 18 year old son, X. X has special educational needs and an Education, Health and Social Care Plan.

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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. I discussed the complaint with Ms F and made written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
5. I gave the Council and Ms F the opportunity to comment on my draft decision and took account of the responses I received before reaching a final decision on the complaint.
6. 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.

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What I found

What should have happened

7. Councils 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 (16-18 or after 18 if they started the course before their 19th birthday). It must specifically address the arrangements for young people with learning disabilities.
8. They have discretion to set their own arrangements but they must have regard to various factors including:
• the needs of those who could not access education or training if no arrangements were made;
• the need for young people to have reasonable opportunities to choose between courses;
• the distance and journey time of the place of learning from the home;
• the costs to the establishment; and
• preferences based on religion
9. The duty relates to young people of sixth form age with learning difficulties and/or disabilities aged up to 19. It may go beyond the age of 19 if the student is continuing on a course started before that age. The transport policy statement must include transport arrangements for this group of students.
10. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
11. Parental responsibility ends legally once young person reaches the age of 18 and there is no responsibility for a parent to transport or accompany an adult child to college. This was recently confirmed in case law (CP v North East Lincolnshire Council).

What happened

12. X is 18 years old. He has a number of diagnosed learning difficulties, disabilities and health problems. He has an Education, Health and Care Plan which names the college he is to attend. This is his nearest suitable school which is 11 miles from his home.
13. Ms F moved to her current address in late 2018 and applied for home to college transport for X. In January the Council wrote to Ms F to say it would not provide this transport. The letter told Ms F that “This is because you have not evidenced sufficiently that transport assistance is necessary to facilitate attendance and we are unable to take into consideration work commitments”. Ms F explains that her husband, who is X’s step-father, works full time and she has a younger primary school age child who she has to take to school daily. The letter advised Ms F that she could appeal against the decision to refuse transport.
14. Ms F submitted an email to appeal against the refusal shortly after. In this she told the Council that due to her husband’s work commitments and that she needed to take her younger son to school, there was no-one available to take X to college.
15. In February the Council responded to this email stating there was no automatic entitlement to free home to school transport after the age of 16. The Council’s letter went on to say that the application was refused “…as you have access to a car and normally a parent’s work commitments are not considered when assessing an application for transport assistance”. The officer went on to say that he had considered whether the Council should provide transport as an exception for X but that as there are two vehicles in the household and two adults able to drive them the Council would not provide transport. The letter advised Ms F that she could proceed to stage 2 of the appeal process which involved her case being considered by an independent appeal panel.
16. Ms F duly asked for her appeal to be considered by an independent panel. The three person panel considered the appeal in late March. Ms F attended the appeal together with a relative and a representative from Hampshire’s Special Educational Needs and Disabilities Information Advice and Support Service (SENDIASS). The panel considered the information provided to it and heard from Ms F but unanimously refused the appeal as they were broadly of the view that Ms F could transport X to school and was able to make arrangements to do so.
17. As Ms F was unable to transport X to college he was unable to attend at all between January and July 2019. The Council has provided transport from September 2019.

Was the Council at fault and did this cause injustice?

Fault

18. In its response to my initial enquiries the Council responded saying that the Council accepted it was at fault and had not taken account of X being 18 years of age when it considered the application for transport or Ms F’s appeals against this. It accepted that it should have provided home to school transport for X and that it had failed to do so. It has been providing such transport from September 2019.
19. The Council failed to properly consider its duties to provide transport to X as an 18 year old. It accepts this and says that it has recently, in the light of a threatened legal challenge, amended its policies to accurately reflect the required legislative requirements in relation to its duties to provide transport to young people of sixth form age with learning difficulties and/or disabilities aged up to 19 and beyond in certain circumstances.
20. It seems that other applicants have been similarly adversely affected by the implementation of the policy before it was amended.

Injustice

21. X was unable to attend college between January and July 2019 and so missed two terms of specialist educational provision and opportunities for social contact and general development.
22. Ms F was caused injustice as she was put to avoidable time and trouble in pursuing the matter with the Council and having to come to this office in order to remedy the matter. She has also told me that she was unable to work during the period that X was at home and should have been attending college. The situation has also caused her avoidable stress due to X’s unhappiness and distress at not being able to attend college and has meant she has had to meet all his developmental and needs for socialising during this period.

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Agreed action

23. Within one month of the date of this final decision statement the Council will:
• send Ms F a formal written apology acknowledging the injustice she and X were caused as a result of the identified fault;
• as there was complete non-provision of education as a result of the non-provision of transport between January and July 2019 the Council will pay Ms F £3600 to acknowledge the impact of this loss on X. This comprises a payment of £600 for each month of missed provision. Excluding school holiday periods during this timeframe, this amounts to six months missed provision; and
• will pay Ms F an additional £1500 to recognise the injustice to her which is identified in paragraph 22 above. This comprises £1250 to recognise the avoidable stress and distress and loss of opportunity to work and £250 to recognise the avoidable time and trouble she was put to in having to go through the appeal and complaints processes at the Council and with this office in order to have the matter resolved.
24. Within two months of the date of this final decision statement the Council will:
• provide me with evidence that its procedures and practice now comply with the legislative requirements; and
• scrutinise around 16 other cases it has identified where applications for transport look as though they have been adversely affected by the same fault identified in this complaint. Specifically, it will consider the basis on which transport might have been awarded, any period of time that applied where the applicant was unable to attend college, or was provided with transport by some other means, and offer a remedy in line with that it has agreed for Ms F and X. It will provide me with details of the outcome of these considerations and advise these applicants of their right to complain to this office if they remain dissatisfied.

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Final decision

25. The Council failed to have in place a policy that complied with relevant legislation with regard to home to school transport for young people of sixth form age. For this reason it failed to properly consider Ms F’s application for home to school transport to enable her 18 year old son to attend the college named on his EHCP and this resulted in him being unable to attend college for two terms. The Council will apologise and pay Ms F £5100 to recognise the injustice this caused her and her son. This sum comprises a payment to recognise that X missed out on two terms of education and the impact this also had on Ms as well as recognition of the avoidable time and trouble she was caused in pursuing the matter. The Council will also review and take action to remedy similar injustice to around 16 other applicants who appear to have suffered an injustice due to the same fault.

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Investigator's decision on behalf of the Ombudsman