Summary: the complainant says the Council did not properly consider her application for school transport for her daughter who has special educational needs and an EHC Plan. The Council says it considered the circumstances and following an appeal allowed the complainant to buy a spare seat on existing school transport. The appeal procedure did not give the complainant an opportunity to present the appeal in person and applies a test of ‘exceptional circumstances’ which does not reflect the legal test. The Ombudsman finds fault in the appeal procedure.

The complaint

1. The complainant whom I refer to as Miss X complains the Council failed to:
• Properly consider an application for transport from home to college for her daughter Y a post 16 student even though Y has special educational needs;
• Properly consider exercising its discretion to provide home to college transport.
2. Miss X says this has had an adverse impact on Y who has autism and a mental age of between 6 or 7 years. Without home to college transport Y arrives late at college and this causes her anxiety. Miss X wants the Council to reconsider its decision and to provide Y with transport.
3. Since Miss X made her complaint the Council has agreed to:
• Arrange supervision for Y within the college in the mornings. This allows Miss X to drop her off at college early. The Council has also offered Y a place on school transport for the return journey in the afternoon with Miss X paying for the transport.

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The Ombudsman’s role and powers

4. 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)
5. If 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)
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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How I considered this complaint

7. In considering this complaint I have:
• Contacted Miss X and read the information presented with her complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance and policy;
• Shared with Miss X and the Council my draft decision and considered any comments received.

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What I found

Legal and administrative background

The Council’s duties

8. The law on education transport is set out in the Education Act 1996. The Government also issued statutory guidance in January 2019 entitled ‘Post-16 transport and travel support to education and training’ which details a council’s duties to adult learners and pupils of sixth form age. The Act does not impose a duty for councils to arrange transport for pupils once they reach sixth form age. Councils have discretion to decide what transport arrangements are necessary to help young people access education.
9. The Guidance says the transport duty is to ensure learners can access education and training of their choice. Where a student applies for support for access the Council should assess the application and provide it ‘where necessary’. It says councils should exercise their power reasonably and satisfy themselves they have considered the needs of vulnerable students including those with special educational needs. The test is not simply if the student has ‘exceptional circumstances’ but whether it is necessary to provide transport. Councils may ask for a financial contribution but not where, as an adult, the student has a right to free transport. The law says arrangements for adults must be free where they are ‘necessary’.
10. Council’s must publish a statement detailing the transport arrangements they make for post-16 pupils. This must include how they consider applications for transport support from young people with special educational needs and their appeal procedure.
11. The Council must reassess the transport needs of young people with special educational needs and disabilities when the young person moves from compulsory schooling to post 16 education.

The Council’s policy

12. The Council’s home to school transport policy states under the heading “Post 16 Students” that it will not usually provide transport to children that are 16 or above. However subsidised transport may be available “under exceptional circumstances”. The policy says to qualify for subsidised travel due to an applicant’s special educational needs or disability the Council will conduct an individual assessment of the student’s needs and placement.
13. The Council’s Post 16 Transport Policy Statement states:

“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 procedure

14. The Government issued ‘Home to school travel and transport guidance’ (‘the guidance’) in 2014. This recommends councils have a two-stage appeal procedure 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.

15. 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 procedure but do not have to be independent of the council.

What happened

16. Until Y reached age 16, Y received free school transport. When Y moved into post 16 education, she chose the college closest to her home with suitable provision for her needs. Y received independent travel training but at age 16 could not access public transport on her own. The Council considered Miss X’s application for transport for Y and refused it. The Council says this reflected a more robust application of its policy than it may have previously applied.
17. The Council says Miss X drives and could take Y to college. The Council recognised Y has primary school aged siblings who would need taking to school but decided Miss X had not provided evidence of ‘exceptional circumstances.’ While the Council accepts where both parents work this presents difficulties in getting all the children to school, it says that is a parental duty and not exceptional.
18. On sending its decision to Miss X the Council says it told her about breakfast and after school clubs the family could access for Y’s younger siblings. These it believed would help Miss X take them to school early and drive Y to college.
19. The Council has a two-stage appeal procedure. At Stage 1 the reviewing officer decided the Council could reasonably expect Miss X to use the breakfast and after school clubs for her younger children. This, the officer believed enabled her to take them to school and collect them earlier and later. That then allowed Miss X the time to drive Y to college and collect her from college.
20. The Council’s appeal procedure did not give appellants an opportunity to attend and present their appeal in person. The Council in response to recommendations by the Ombudsman in a previous decision introduced this opportunity from September 2019. This came after Miss X’s appeal.
21. In October and November 2019, the Council’s officers and councillors met with parents of post 16 students for whom it had refused transport. These meetings led the Council to offer parents the opportunity to buy any spare seats on the school transport the Council provided for eligible pupils. Miss X asked the Council to consider Y for such a place.
22. The Council spoke with Miss X and agreed a custom-made arrangement which allows Y to continue with school transport from college to home until she completes her studies, or an eligible student needs the seat. Miss X entered a contract for the service in January 2020. For the autumn term, September to December 2019 Y did not have access to school transport and Miss X had to drive her to and from college.

Analysis – was there fault leading to injustice?

23. My role is to consider how the Council considered the application for school transport, including Y’s special educational needs (SEND) and the appeal against its decision. I must consider whether it applied the law and policy properly. If it did not, then I must consider if that led to an injustice and what the Council should do to redress that injustice.

Verbal Representations

24. The Council’s policy in place when the Council considered Miss X’s appeal stated the appeal panel would consider the parent’s written case. It did not allow parents the opportunity to attend the hearing and present their case in person. This did not comply with statutory guidance which states the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. I find the Council at fault in not offering an opportunity to present an appeal in person.
25. The Council changed its policy after September 2019 recognising it failed to meet the guidance and now offers appellants the right to present their arguments in person. This came too late for Miss X.

The test

26. 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.
27. We expect to see evidence the Council has considered all these factors and can give reasons for its decisions. If the Council decides transport is not necessary, statutory guidance says it should show there is a safe, affordable way for the learner to attend sixth form/college and have choice in what they study.
28. There is no absolute rule saying parents of children over 16 who cannot travel to school on their own should take them to school or college. What the Council can expect parents 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. The Council’s policies should not treat children and young adults with SEND (and their parents) less favourably than children and young adults of the same age without SEND.
29. The Council’s Home to School Transport Policy states transport support may be available in ‘exceptional circumstances.’ In contrast, its Post 16 Transport Policy Statement says the Council will provide it “where necessary”.
30. 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 imposes a duty on the Council to consider whether it is ‘necessary’ to make transport arrangements to facilitate a young person’s attendance at college. The test is not whether there are exceptional circumstances. I find therefore the Council at fault for applying a flawed policy. It should review it in line with the law and statutory guidance.
31. Although the Council has set out the correct test in its Post 16 Transport Policy Statement, it did not apply this test in Miss X’s case. The Council’s decision rests on whether it could reasonably expect Miss X to drive Y to college given she could access breakfast and after-school clubs for Y’s siblings. Thus, giving her time to drive Y to college. A student without SEND, and some with SEND could access public transport but Y cannot do that. In deciding her siblings and parents must go to the trouble of attending breakfast and after school clubs, I find the Council did not recognise her individual needs resulting from her SEND. Therefore, I find the Council did not rest its decision on whether transport for Y was necessary having considered her needs and its Equality Act duty.
32. I find the Council acted with fault in deciding the appeal. The Council refers to the absence of ‘exceptional circumstances’ which is the wrong test. The legal test for deciding if the Council needs to arrange transport is whether the Council considers it necessary to facilitate the student’s attendance at college. Miss X does not need to show exceptional circumstances.

Injustice

33. The Ombudsman has published guidance to explain how we recommend remedies for people who have suffered injustice. 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 recognise what could have been avoidable distress, harm, or risk. We may also recommend the Council takes action to improve services for others.
34. Following its refusal of Miss X’s appeal, the Council met with parents who had unsuccessfully applied for transport support. It offered spare places at cost on school transport. Miss X took up a place and from January Y travelled to college using this service and relieving Miss X from collecting her.
35. I must consider if the flaws I identified in the appeals procedure led to an injustice. Had the Council given Miss X the right to present her appeal in person and applied the correct test to her application it may have offered Y free transport. We shall never know, and Miss X and Y have suffered distress and confusion as a result.

Recommended and agreed action

36. I recommend and the Council agrees to within four weeks this decision:
• apologise to Miss X and Y for its handling of the appeals;
• pay Miss X £250 in recognition of the distress and confusion caused and her time and trouble in putting her complaint to the Council;
• review whether Miss X’s circumstances meet the ‘necessary’ test and if so, offer Y free transport, refunding Miss X for payments made; and
• review its home to school transport policy, taking account of the law and Government guidance.

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Final decision

37. In completing my investigation, I find the Council acted with fault causing injustice.

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Investigator's decision on behalf of the Ombudsman