Summary: Mrs X complains about the Council’s decision to refuse transport assistance for her child, Z. Mrs X says the Council has not properly considered the evidence provided. The Ombudsman finds fault with the Council’s post 16 transport policy. He also finds fault with the way the Council considered Mrs X’s appeal. The Council has agreed to reconsider Mrs X’s application for transport assistance.

The complaint

1. Mrs X complains about the Council’s decision to refuse transport assistance for her child, Z. The Council decided Z could use the coach services provided by their college. Mrs X says Z is a wheelchair user and the coach is not wheelchair accessible. Mrs X also says Z cannot use the stairs to board the coach.
2. Mrs X is currently driving Z to college and says the Council’s decision has caused her an injustice as the long journey has impacted negatively on her health.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I spoke with Mrs X and considered the information she provided.
7. I considered the information provided by the Council.
8. I sent a draft decision to Mrs X and the Council and considered their comments.
9. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Education Act 1996

10. Section 509AA says councils must publish a statement specifying the arrangements for the provision of transport, or otherwise the council considers necessary to make for the attendance of persons of sixth form age receiving education or training at specific institutions.
11. The statement must specify the arrangements the council considers it necessary to make for the provision of financial assistance in respect of travelling expenses; arrangements for the provision of transport made by the governing bodies of schools and further education colleges; and any travel concessions on offer.
12. Section 509AB also states councils must set out the arrangements the council proposes to make for young people with SEND and disabilities.

Post 16 SEND Travel Assistance policy

13. This policy sets out the Council’s eligibility criteria for travel assistance for those aged over 16. It notes post 16 transport is discretionary.
14. The policy notes that when considering the eligibility of the student to receive an offer, and what offer should be made, the council may consider the following and any other relevant factors:
• Nature of the journey for the student. This includes the distance, time, and complexity of the journey by road, public transport or on foot.
• Parent/carer/broader network available to accompany student. This includes whether the student’s family or broader network is reasonable able to transport or accompany the student.
• Available suitable vehicle, or disability benefits.
• The student’s needs relating to travel, such as whether the student has complex needs and/or requires a second person on transport.
• Other relevant factors, such as the health of the parent and the potential impact of providing transport or accompanying the student. The Council will also consider the financial circumstances of the family.

What happened

15. Mrs X’s son, Z, uses a wheelchair due to his physical disability. Z also has Autism. Z attends a college. The college offers a coach service for students which takes them to the college. The nearest coach pick up point from Mrs X’s home is approximately six minutes away by car.
16. In May 2019, Mrs X applied for transport support for Z. In her application, Mr X noted Z used a wheelchair and highlighted Z would find the journey difficult due to his autism and mental health difficulties.
17. Mrs X also highlighted her own disability and mobility issues. Mrs X said she could not guarantee she would be able to get Z to the coach stop each day as her medical condition affected her ability to drive. Mrs X highlighted she was also a wheelchair user and so could not walk Z to the coach stop.
18. In July 2019, the Council declined Mrs X application. The Council said it considered it reasonable for Z to get the coach to college. The Council said the coach could take Z’s wheelchair. The Council also considered it reasonable for Mrs X to take and collect Z from the coach station.
19. At the end of July 2019, Mrs X submitted an appeal. In her appeal, Mrs X highlighted the following:
• Z could not undertake complicated journeys and could not get to the coach drop off point independently due to his physical disability.
• The coach was not wheelchair accessible and was not suitable for Z.
• She could not drive Z to the coach drop off point because of her own medical and mobility issues. She also could not store the wheelchair onto the coach because of these issues.
20. The Council considered the appeal in September 2019. The Council noted the coach could not provide a wheelchair seating position. However, the Council said the evidence provided suggested Z did not travel in his wheelchair. Further, the Council said Mrs X was currently transporting Z to college in a car that was not adapted for a wheelchair. The Council said it was reasonable to assume Z could sit in a seat in the same way as other travellers.
21. The Council considered information provided by the college that it could reserve a seat for Z at the front of the coach and the driver could store Z’s wheelchair in the luggage compartment. The college confirmed it could ensure someone was available to meet the coach and help Z when he arrived at, and when he left, college. The college also confirmed it could put a system in place to ensure Z did not miss his stop on the way home.
22. The Council said these were acceptable solutions to accommodate Z on the coach service. The Council’s view was that it was reasonable for Z to travel on the coach service. The Council also noted its view the proposed journey was not complicated or unsafe. The Council did not appear to consider how Z’s Autism might affect his ability to take the journey.
23. The Council considered whether Z needed a passenger assistant. The Council noted these were usually provided when there are extreme behaviour challenges or if the client needs urgent medical intervention. The Council said Mrs X had not evidenced those needs so did not consider Z needed a passenger assistant.
24. The Council also considered the evidence Mrs X provided about her ability to drive. The Council noted the driving assessment provided by Mrs X said she could drive safely.
25. The Council did not uphold Mrs X’s appeal and declined to offer transport support.
26. Mrs X contacted the Council and asked it to reconsider its decision. She provided the Council with new evidence, including Z’s personal independent payment (PIP) assessment letter. The PIP letter noted Z had scored the maximum score in planning and following a journey. This was defined as “you can’t follow the route of a familiar journey without another person, an assistance dog or an orientation aid”. Mrs X also raised concerns Z could not use the steep steps to board the coach.
27. In November 2019, the Council reconsidered Mrs X’s appeal due to Mrs X’s new evidence.
28. The Council considered whether it was reasonable for Mrs X to provide home to college journeys given the length of the travel, Mrs X’s driving assessment, and information provided by her GP. The Council said it did not expect Mrs X to undertake the entire journey. The Council said the evidence suggested it was still safe for Mrs X to drive. The Council decided it was possible for Mrs X to drive Z to the coach pick up point and to do the reverse in the afternoon.
29. The Council also considered whether the coach service was suitable transport for Z. The Council said Z did not need a wheelchair adapted vehicle as he did not need to travel in his wheelchair. The Council also noted Mrs X was currently taking him to college in a car that adapted for a wheelchair. The Council also confirmed its view that Z did not need a passenger assistant as there was no medical evidence to support this.
30. The Council considered Mrs X’s belief that Z could not board the coach due to their physical disabilities. The Council considered the information from Z’s PIP assessment. The Council said the PIP assessment suggested Z could stand and move up to 20 metres. The Council said while it recognised Z’s mobility was restricted, the information available did not lead them to conclude he cannot board the coach. The Council said there was no specific evidence to suggest he could not board the coach.
31. Finally, the Council considered the journey time of the coach to college and did not consider it to be excessive. The Council also reiterated its view the coach journey was not complicated.
32. The Council did not appear to consider how Z’s Autism might affect his ability to undertake the journey. The Council also did not appear to consider the fact Z scored the maximum on planning and following a journey.
33. The Council did not uphold Mrs X’s appeal and declined to offer transport support. The Council said there was a suitable travel arrangement available to Z to facilitate their attendance at college.
34. Mrs X said she drove Z to college and this meant she missed out medical treatments.

Analysis

Council’s policy

35. The Ombudsman has previously considered the Council’s post 16 SEND travel assistance policy and found fault with the policy. This was because the wrong test is set out in the policy.
36. The policy states the test is whether the circumstances are ‘exceptional’. However, the law says Council’s must specify the arrangements for the provision of transport, or otherwise, the Council considers necessary to make. The tests of what might be considered ‘exceptional’ and what might be considered ‘necessary’ in any given situation are different. This is fault.
37. Given the faults in the policy’s wording, I find the appeal was likely to have been affected as the Council would have had the flawed policy in mind when it made its decision. Therefore, this could have influenced the Council’s decision.
38. Therefore, the fault caused an injustice to Mrs X and Z because there is uncertainty about what decision the appeal panel would have made if it had been guided by an appropriate policy.
39. Further, the Council does not appear to have properly considered all the available evidence. The Council has not set out how it considered Z’s Autism, how it impacted on the suitability of the coach journey, or how it might affect him being able to undertake the journey. The Council might not consider the journey to be complicated, but this may not be the case for Z due to his Autism. The Council has not shown how it decided the journey was not complicated for Z.
40. Equally, the Council does not appear to have considered Z’s maximum score in his PIP assessment regarding planning and undertaking a journey. The Council has not set out how it how it decided the coach journey was appropriate for Z even though he could not take familiar journeys without another person, assistance dog or orientation aid.
41. Therefore, the Council has not shown it made its decision to refuse transport support properly. This is fault.
42. I find the fault identified caused an injustice because there is uncertainty about what decision the Council would have made had it properly considered all the available evidence.

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Agreed action

43. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Reconsider Mrs X’s application for transport assistance. The Council should evidence its consideration of Z’s Autism and of his PIP score in relation to planning and following a journey.
• If after reconsideration, the Council decides it should have provided transport assistance to Mrs X earlier, the Council should consider a suitable remedy for Mrs X.
44. I have not made recommendations regarding reviewing and amending the Council’s flawed post 16 transport policy. This is because the Ombudsman made this recommendation in a previous investigation.
45. The Council should complete the above within six weeks of the final decision.

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Final decision

46. I find fault with the Council’s post 16 transport policy and with the way the Council considered Mrs X’s appeal. The Council has accepted my recommendations. I have concluded my investigation.

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Investigator's decision on behalf of the Ombudsman