Summary: Mr X complained about the Council’s refusal to award transport assistance to his over 16-year old son, Y. He said having to take Y to school because of this decision caused him and his wife serious difficulties. There is no fault in how the Council made its decision. It considered its policy and evidence provided by Mr X about the specific circumstances of the situation and explained its decision to them.

The complaint

1. Mr X complains about the Council’s refusal to award discretionary transport assistance to take his over 16-year old son, Y to the school named in his Education, Health and Care Plan.
2. Mr X says this refusal means he and his wife have to take Y to school, despite the serious difficulties this presents, including also having to take their daughter to another school, and the impact on their health.

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The Ombudsman’s role and powers

3. 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)
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 spoke to Mr and Mrs X about the complaint. I asked the Council questions and considered evidence it provided, including notes of its appeal.
6. I considered the Government’s statutory guidance for post-16 learners – Post 16- transport to education and training. Statutory guidance for local authorities, Department for Education, January 2019.
7. I considered the Ombudsman’s Casework Guidance Statement – Education transport for children and young people over 16 years old.
8. I gave the Council and Mr X the opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Overview of legislation and guidance

Post 16 transport

9. Once young people with special educational needs and disabilities (SEND) reach 16 years old, the help councils have to give them with transport to school changes. They do not automatically get free school transport that younger children are entitled to. Parents of young people aged 16 and over are expected to do more but there is no absolute rule that they have to take their child to school or college. What councils can expect parents to do will depend on their circumstances.
10. Councils must publish a statement explaining how they can help young people over 16 travel to education or training. This might include giving them help with travel expenses. The statement must explain what support the council makes for young people with special educational needs and disabilities (SEND).
11. Statutory guidance says if someone asks a council for transport assistance for a young person over 16 years old it must assess their situation and decide whether to provide transport or financial support reasonably, taking into account all relevant matters.
12. Councils are expected to target support at those who need it most. They can ask for a financial contribution from parents but make sure it is affordable. They must take account of the fact young people with SEND may spend longer in education than others.
13. We expect councils to consider the individual circumstances of each case and not apply blanket policies or make assumptions about accompaniment. Councils should consider whether it is reasonably practical in the circumstances of each case for parents to accompany their post-16 year old child. Councils should be considering whether transport is necessary in that case.
14. If a council decides transport is not necessary, we expect it to be able to demonstrate, in line with statutory guidance, that there is a safe, affordable way for the learner to attend education and to have choice in what they study.

Transport appeals

15. Councils should have an appeals procedure for parents who wish to appeal about the eligibility of their child for travel support. This should be published alongside the council’s travel policy statement.
16. Government guidance recommends a two-stage appeal for pre-16 transport cases. It recommends the case is first reviewed by a senior officer and then by an independent appeal panel. It recommends the panel consider written and verbal representations from the parent and officers involved in the case.
17. Statutory guidance for post 16-transport says “good practice suggests using a similar 2 stage complaints process as that used for pre-16 appeals” followed by the option to complain to the Ombudsman or Secretary of State. This guidance does not give any further details on the type of appeal process councils must follow for post-16 cases.

18. We expect councils to follow the recommended two-stage process for post-16 transport appeals unless they have good reason. If they decide to adopt a different process, they must provide parents with the chance to present their case and allow independent consideration of their appeal.

East Sussex County Council’s policy

19. The Council’s published policy for requests for assistance with post-16 transport assistance (January 2019) states most families will be expected to make and pay for their own travel arrangements. It says the Council will only help with exceptional cases.
20. The Council deals with such requests through a two-stage process. The first stage is consideration by a panel of officers from the SEN team and others who deal with specialist transport. The panel considers the circumstances of the student and family and their wider network to decide if they are eligible for help. The Council expects parents to prioritise transporting their child over other commitments.
21. If the Council refuses assistance, it offers an appeal. The appeal panel is made of elected councillors who did not take part in the original decision. They consider the application and decision. They review any new information about the case, including the appeal request. The council does not permit parents to attend the appeal panel. It expects parents to explain in writing why they are appealing, including any supporting information.

What happened

22. Mr X’s son Y attends an independent specialist school for children and young people with complex special educational needs. This school is named as Y’s school placement in Section F of his Education, Health and Care Plan (EHCP). Until he reached 16 years old the Council provided him with a taxi to get to the school.
23. In April 2019, as Y approached sixth form age, Mr X applied to the Council for discretionary school transport help. He said it was essential Y was escorted to school. He needed to travel in an adapted vehicle. Although he has an adapted vehicle, Mr X said he did not feel safe to drive Y to school, especially after sleepless nights resulting from caring responsibilities.
24. The Council’s travel panel considered the application in April 2019 and decided not to award assistance. It said the family had a suitable adapted vehicle to transport Y and that it was reasonable for Mr and Mr X to use this, despite their concerns. It explained how to appeal. It explained Mr X would need to set out his financial circumstances if he wanted to appeal.
25. Mr X appealed, setting out in writing, the background to Y’s situation, explaining the importance of escorted travel for Y. He said that if the Council did not help, both parents would need to take Y to school. This was not possible because their other child needed to be taken in a different direction, to their school. Delay and unpredictability in Y’s travel would mean the other child would risk missing school. He explained he and his wife had health conditions that meant transporting Y every day would be difficult.
26. Mr X asked to attend the appeal to present his case. The Council refused, referring to its policy not to allow parents to present their case in person. The discretionary transport appeal panel considered Y’s case in June 2019. It considered the Council’s post-16 SEND policy, Mr X’s application, its April decision and Mr X’s appeal form and documents.
27. Records of the appeal panel show the Council considered the specific circumstances of the family including Y’s complex needs, requirement for accompaniment and the family’s need to take their other child to primary school. The panel considered whether the family could transport Y and specifically considered new evidence the family provided about the difficulty getting Y in and out of the car. It also considered Mr X’s employment circumstances and the impact this had on his ability to transport Y. It decided it was reasonable for them to take Y to school, despite these difficulties.
28. The Council wrote to Mr X later in June to reject his appeal, explaining its reasons in some detail. It referred to how it had considered Mr X’s evidence and the reasons it was not persuaded, despite that evidence, to change its decision. It explained why it decided it was reasonable for school staff to assist Y with transfers in and out of the car. It referred Mr X to the Ombudsman.
29. Mr and Mrs X told me that since the decision, it had been very difficult for them to provide Y with transport to school, having a big impact on their lives. They had wanted to appear at the panel to put their case, but the Council had not let them.

My findings

30. The Council considered Y’s case using its policy for assistance with post-16 transport. It considered the specific circumstances of Y’s case. It followed the recommended two-stage process including a second stage panel of decision makers unconnected with the earlier decision. The panel considered information provided by Mr X in his original application and then at appeal. It considered Mr X’s written evidence about the difficulties transporting Y to school would present. It decided, having regard to that information, that Y did not need the Council to help with home to school transport.
31. The Council did not let Mr and Mrs X give evidence to the appeal panel. Statutory guidance for pre-16 transport only recommends councils let parents present their case at appeals. It does not say they must do so. Post-16 guidance says it is good practice for councils to use the pre-16 transport appeal process for older students.
32. Given the advisory nature of this statutory guidance, the Council was not at fault for not inviting Mr and Mrs X to the appeal. It gave them the opportunity to set out their concerns in writing. Notes of the panel show it considered their concerns but decided they did not provide grounds for it to assist with post-16 transport.
33. There is no evidence Mr and Mrs X were significantly disadvantaged by not being able to attend the panel. They were able to set out their concerns in writing and the Council considered those concerns as part of its decision making. Because there is no fault in the way the Council made this decision, we cannot be critical of it.

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Final decision

34. I have completed my investigation to find no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman