Summary: Ms B complains about the way the Council considered her application for post-16 home to school transport for her son who has special educational needs. The Ombudsman finds the Council was at fault because Ms B was not given the opportunity to present her case at the panel hearing and it applied the wrong test in deciding her application and appeal. To remedy the injustice caused, the Council has agreed to apologise to Ms B, pay her £400 and review its home to school transport policy.

The complaint

1. Ms B complains about the way the Council considered her application for post-16 home to school transport for her son who has special educational needs.

Back to top

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)
4. 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.

Back to top

How I considered this complaint

5. I have considered the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided. I have also considered relevant legislation, guidance and Council policies.
6. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legal and administrative background

The Council’s duties

7. The law concerning education transport is set out in the Education Act 1996 (‘the Act’). The Government also issued statutory guidance in January 2019 entitled ‘Post-16 transport and travel support to education and training’ which details councils’ 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.
8. Councils must publish a statement detailing the transport arrangements they make for post-16 pupils. This must include how they consider requests for transport assistance from young people with SEN and their appeal process.
9. The transport needs of young people with special educational needs and disabilities (SEND) must be reassessed when the young person moves from compulsory schooling to post 16 education.

The Council’s policy

10. The Council’s home to school transport policy states under the heading “Post 16 Students” that transport assistance is not generally provided to children that are 16 or above but may be available “under exceptional circumstances”. It states that, in order to qualify for subsidised travel on the grounds of SEND an individual assessment will be made of the student’s needs and placement.
11. The Council’s Post 16 Transport Policy Statement says:

“The overall intention of the sixth form age transport duty is to ensure that:

• learners of sixth form age are able to access the education and training of their choice; and
• if support for access is requested, this will be assessed and provided where necessary.

The appeals process

12. The Government issued ‘Home to school travel and transport guidance’ (‘the guidance’) in 2014 which recommends councils have a two stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support:

• Stage 1: review by a senior officer;
• Stage 2: review by an independent appeal panel.

13. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.

Key facts

14. Ms B’s son, C, is autistic and has an education health care plan (EHCP). He was eligible for free school transport under the statutory school age transport policy. C was due to transfer to sixth form college in September 2019 so Ms B applied to the Council for transport assistance. Her application was refused. The Council explained there was no legal requirement for it to provide transport assistance to pupils to access post 16 education and any transport assistance provided would be on a discretionary basis. It decided there were no exceptional circumstances to justify the provision of free transport for C to attend college. The Council considered it was reasonable for Ms B to transport C to and from college in her car.
15. Ms B appealed against the Council’s decision. She explained that C is severely autistic and needs 2:1 support and constant supervision when he is out because of his unpredictable and often violent outbursts. He is non-verbal and will lash out if frustrated. She said her younger son, D, would have to act as C’s escort if she drove him to school because of his challenging behaviour. This would mean D starting school late every day. She also explained that the college C was due to attend was named in his EHCP because his needs could not be met in a further education or sixth form college closer to home.
16. Ms B’s appeal was considered by a senior officer who decided there were no exceptional circumstances to justify the provision of transport so the appeal was refused. The decision letter stated that, although C had received transport until the end of the previous academic year, there had been no significant reported incidents or a requirement to provide one-to-one support. C wore a harness/restraint whilst travelling to and from school and the officer assumed Ms C could use this in her own car and D could make his own way to school.
17. Ms B asked for her appeal to be escalated to stage 2 of the appeal process. It was considered by the transport panel in September 2019. Ms B was not invited to attend the meeting but the principal manager for admissions and planning, Officer X, attended to present the case on behalf of the Council. The panel decided there were no exceptional circumstances to justify the provision of transport assistance and so refused the appeal. The chair of the panel wrote to Ms B explaining the decision.
18. As a result of the Council’s refusal to provide transport assistance, Ms B decided to sell her car. She then submitted a further appeal based on her change of circumstances. The appeal was considered by another panel in October 2019. Again, Ms B was not invited to attend the meeting but Officer X attended to present the Council’s case. The panel noted all the information in the appeal paperwork including the previous decisions made, and particularly took account of the following:
• Ms B was a single parent;
• she was selling her car and would not have access to a car when C returned to college after the autumn break; and
• Ms B was entitled to claim free school meals.
19. Having considered all the information, the panel decided transport assistance should be provided on an exceptional basis to enable C to attend the sixth form college named in his EHCP.

Analysis

20. It is not the Ombudsman’s role to decide whether someone should receive transport assistance. We can only consider if there was fault in how the Council reached its decision.

Verbal representations

21. The Council’s policy in place in September 2019 when Ms B’s first appeal was considered stated that the appeal panel would consider the parent’s written case and the previous decisions made. It did not allow parents the opportunity to attend the hearing and make verbal representations. This did not meet the requirements set out in the statutory guidance which states that the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. This was fault.
22. Ms B was not given the opportunity to attend the hearing to put her arguments to the panel in person. However Officer X was present at the panel hearing and presented the Council’s case verbally to the panel. This was procedurally unfair as both parties should be given equal opportunity to present their case and to respond to arguments presented by the other side. A decision maker must be impartial and avoid the appearance of bias. Allowing Officer X to put forward verbal arguments to the panel when Ms B was denied this opportunity was fault.
23. The Council’s failings caused Ms B significant injustice. She will never know whether the outcome may have been different if she had been given the opportunity to attend the hearing and present her arguments verbally.
24. Ms B’s second appeal was considered in October 2019. Following recommendations made by the Ombudsman, the Council had changed its appeals procedure in September 2019 to include the opportunity for parents to attend and make verbal representations to the panel. But arrangements had been made for Ms B’s appeal before these changes were made so she was not given the opportunity to attend. This was further fault but it did not cause Ms B a significant injustice because her appeal was granted.

The test

25. The law says the Council must make arrangements for a post 16 learner if it considers that to be ‘necessary’ having regard to all the relevant circumstances. The Act and the statutory guidance list the factors to which councils must have regard when considering what arrangements are necessary, including SEND.
26. We expect to see evidence that the Council has considered all these factors and can give reasons for its decisions. If the 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 sixth form/college and have choice in what they study.
27. There is no absolute rule that the parents of children over 16 who cannot travel to school on their own are expected to take them. What parents can be expected to do will depend on their circumstances and each case will turn on its own facts. We expect councils to consider their Equality Act duties when considering the transport needs of children and young adults with SEND. They should not be treated less favourably than children and young adults of the same age without SEND and their parents.
28. The Council’s Home to School Transport Policy in relation to over 16’s states transport assistance may be available in ‘exceptional circumstances’ whereas its Post 16 Transport Policy Statement says it will be provided “where necessary”.
29. The Home to School Transport Policy, which restricts transport assistance to those young people for whom exceptional circumstances apply, does not reflect the law. The law requires the Council to consider whether it is ‘necessary’ to make transport arrangements to facilitate a young person’s attendance at college, not whether there are exceptional circumstances. The policy is therefore flawed and should be reviewed, taking account of the law and Government guidance.
30. Although the Council has set out the correct test in its Post 16 Transport Policy Statement, it did not apply this test in Ms B’s case. So, the Council’s decisions at both stages of its appeals process are flawed. They refer to the absence of ‘exceptional circumstances’ in Ms B’s application which is the wrong test. The law says the Council must make such arrangements as it considers necessary to facilitate the student’s attendance at college. Ms B does not need to demonstrate exceptional circumstances.

Injustice

31. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault had not occurred. When this is not possible, we may recommend the Council makes a symbolic payment to acknowledge what could have been avoidable distress, harm or risk. We may also recommend the Council takes action to improve services for others.
32. Ms B was successful at the second appeal and C now has transport assistance. But, if Ms B had been able to attend the first appeal, and, if the Council had applied the correct test, it is possible the outcome may have been different and she would not have been put in the position of having to sell her car causing great inconvenience and pursue a second appeal. Ms B will never know if this might have been the case but for the Council’s fault. She suffered distress and uncertainty as a result.

Agreed action

33. The Council has agreed that, within one month of the Ombudsman’s final decision, it will:
• apologise to Ms B for its handling of her school transport application and appeals;
• pay her £250 in recognition of the distress and uncertainty caused by its failings together with a further £150 for her time and trouble in pursuing the matter by way of a second appeal and a complaint to the Ombudsman; and
• review its home to school transport policy, taking account of the law and Government guidance.

Back to top

Final decision

34. I uphold Ms B’s complaint.
35. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Investigator's decision on behalf of the Ombudsman