Summary: The Council was at fault because it failed to record minutes at a hearing to consider Mrs C’s appeal for her daughter’s post-16 transport assistance. The Council has agreed to apologise, offer a suitable financial remedy, and retake its decision.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains that the Council has wrongly refused to provide transport assistance to her daughter who has special educational needs. As a result, Mrs C says his family are experiencing an inconvenience. I shall refer to Mrs C’s daughter as Ms B.

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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. 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 considered the information Mr C provided. I made written enquiries of the Council and considered its responses. I also considered the relevant law and guidance.
6. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Legislation and guidance

7. Local authorities do not have a statutory duty to provide free transport to school or college for students who are of compulsory school age.
8. They 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 and up to 19 if they have learning difficulties and/or disabilities. Transport may go beyond the age of 19 if the student is continuing a course started before that age.
9. Statutory guidance ‘Post-16 transport and travel support to education and training’ (January 2019) says local authorities have discretion to set their own arrangements but they must have regard to the following:
• the needs of those students for whom it would not be reasonably practicable to access education or training provision if no arrangements were made. It says the needs of young people with special educational needs and disabilities should be specifically considered.
10. the distance and journey from the students’ home to the place of learning. The Guidance says “In determining whether transport arrangements are necessary, local authorities should take into account other factors, such as the impact a learning difficulty or disability may have on a young person’s ability to walk this distance, and the nature (including safety) of the route, or alternative routes, which a young person could be expected to take.” It also says “Journey time also needs to be taken into account. Young people should be able to reach their education setting without incurring such stress, strain, or difficulty that they would be prevented from benefiting from the education provided.”
• the cost of transport and the need to target support on those who need it most, particularly low-income families
11. The Council’s transport policy states that transport assistance is not generally provided to children over 16, but it may be available under exceptional circumstances.
12. The policy goes on to say that any SEND transport application, which does not meet the eligibility criteria will automatically be considered under exceptional circumstances on a case by case basis.

Background

13. Ms B is subject to an EHC Plan which names a college around 5 miles from the family home, a round trip of at least 40 minutes. Ms B started her college course after her sixteenth birthday.
14. Both Mrs C and her husband, Mr C, work. Mr C’s job means he works away from the family home during the week. Mrs C starts work around the same time as Ms B is due in college.

What happened

15. Mrs C applied to the Council for post-16 transport support for Ms B because, due to their work commitments they could not transport Ms B to and from college.
16. The Council refused the application for transport support, so Mrs C appealed the decision. The Council subsequently convened an appeals panel to consider the case.
17. There are no notes of the review, but the refusal letter states the panel decided not to uphold Mrs C’s appeal for the following reasons:
• There were no exceptional circumstances to justify the provision of transport support.
• While Ms B is unable to travel independently, it is reasonable to expect one of her parents to transport her to college.
• Alternatively, arrangements could be made with the college to support Ms B’s travel. For instance, a parent could drop Ms B off at the bus station and a member of college staff could then meet her at the end of the journey.

Analysis

18. As a general principle of fair and transparent decision making, the Ombudsman would also expect to see what factors the Council has reviewed so that there can be no uncertainty about its decision making.
19. The Council said it considered it reasonable for one of Ms B’s parents to drive her to school, or to transport her to the bus station, with a member of college staff meeting her at the other end. This is despite both parents working.
20. We expect councils to consider their Equality Act duties when considering the transport needs of children and young adults with SEND. Children and young adults with SEND and their parents should not be treated less favourably than children and young adults of the same age without SEND and their parents. This is likely to be a consideration for parents of children of secondary school age who work, or want to work, for example
21. The Council also said that there were no exceptional circumstances to justify the provision.
22. 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 sixth form / college and to have choice in what they study.
23. Councils offering support only ‘in exceptional circumstances’ are applying the wrong test. They should be considering whether transport is necessary.
24. It may be that the panel did take into consideration its duties under the equalities act, and that it did consider all the individual circumstances of the case.
25. However, there are no contemporaneous notes or minutes of the review of the appeal. Whilst the letter sent to Mrs C outlines the reasons for refusal, it does not evidence that the officers considered the specific points of the case.
26. This is fault which creates uncertainty about the way in which the Council considered this case.
27. The panel also concluded that alternative arrangements could be put in place, where a parent drops Ms B off at the bus station and a member of college staff meets her at the end of the journey.
28. The Council explained that the panel comprised of staff familiar with Ms B’s needs, and they were confident that a member of staff at the college would be able to meet her at the end of the journey.
29. However, without such an agreement with the college in place, I do not consider this to be an appropriate reason to refuse the appeal.

Agreed action

30. To remedy the injustice identified in this case, the Council has agreed that within one month of the date of my final decision it will:
• Apologise to the family for the faults identified in this statement.
• Pay £100 for the avoidable time and trouble caused by the handling of the case.
• Retake its decision, taking notes which show that the individual circumstances of the case are considered and that the Equalities Act is also considered. If arrangements with the college are to be considered, ensure that this agreement is in place first.
31. If the Council decides that it is necessary to transport Ms B to college, the Council will, within two weeks of making that decision:
• Contact Mrs C to obtain details of their expenses for the period during which they have transported Ms B to college. The Council should then repay these costs as well as an additional £200 for the distress caused.

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Final decision

32. I have concluded my investigation with a finding of fault leading to an injustice.

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Investigator's decision on behalf of the Ombudsman