Summary: Mr X complained about the way the Council dealt with his application and appeal for help with transport for his 18-year-old son who has special educational needs to attend college. The Ombudsman finds there was fault by the Council. The Council has agreed to arrange a fresh appeal hearing and review its policy on post-16 education transport.

The complaint

1. Mr X complains that the Council has failed to properly consider his application and appeal for transport assistance for his 18-year-old son to attend college. As a result he says the Council has unfairly refused to provide the bus pass it provided last year and he has had to pay the transport costs.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
3. 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. 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 discussed the complaint with Mr X and considered the information he provided. I considered the information the Council provided in response to my enquiries. I considered relevant law, guidance and policy on help with transport for post-16 pupils with special educational needs and disabilities. I shared my draft decision with the Council and Mr X and considered their responses before reaching a final decision.
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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What I found

Education Health and Care Plans

7. A child with special educational needs and disabilities (SEND) may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. Section I names the education placement.

Law, guidance and policy on help with transport for post-16 pupils with special educational needs and disabilities

Transport duty

8. Councils have a duty under the Education Act 1996 to provide free home to school transport for certain groups of children of compulsory school age. For pupils of sixth form age, councils must publish a statement setting out the arrangements for provision of transport they consider it necessary to make to help pupils attend education or training, and the financial help available. (Education Act 1996, section 509AA)
9. The statement must set out the arrangements the council proposes to make for young people with special educational needs and disabilities. (Education Act 1996, section 509AB)
10. Statutory guidance 'Post-16 transport to education and training' says in considering what arrangements it is necessary to make, councils have flexibility. But they must take account of various factors including:
• the needs of those for whom it would not be reasonably practicable to access education or training if no arrangements were made
• the need for young people to have reasonable opportunities to choose between courses
• the distance and journey time of the place of learning from the home
• the costs to the establishment
• preferences based on religion.
11. The guidance says the overall intention of the sixth form transport duty is to ensure learners can access education and training of their choice. If support for access is requested, this will be “assessed and provided where necessary”.

Council’s transport statement

12. The Council’s ‘Post 16 Further Education – Transport Policy Statement’ for the academic year 2019-20’ says:
• the Council provides transport assistance to students who meet the eligibility criteria in the ‘Home to School Post 16 Transport Policy’, and it provides a link to that policy
• all provision in the ‘Home to School Post 16 Transport Policy’ is discretionary.

Council’s policy

13. The Council explains its post 16 transport policy on its website as follows.
14. You qualify for travel assistance to a publicly funded sixth form or college if all of the following six points apply:
1. you meet the criteria for Free School Meals or you live in a Low Income Household (defined by receipt of certain qualifying benefits)
2. your home address is in the Council area
3. your home address is over three walking miles from the sixth form or college
4. you are under 19 years old on 1st September 2019 (or were under 19 on 1st September 2018 if you are starting the second year of a course)
5. you are on a full-time course
6. you attend the nearest publicly-funded sixth form or college offering the course to be studied (or 50% or more of the subjects if it is a multi-subject course).
15. The Council changed its policy in 2017 following a review, restricting entitlement to young people from low income households. The changes in the qualifying conditions applied to applications for the academic year 2019-20. Before that applicants did not have to satisfy point 1 above.
16. The Council’s website says children and young people with an EHC Plan should contact their Special Educational Needs Case Officer to discuss their transport needs or to obtain a Request for Travel Assistance form.
17. The Council also has a ‘Home to School Transport Policy’ which contains a section on its ‘Special Educational Needs Travel Assistance Policy’. This says that for students aged 16-19 attending an educational setting:

“If the Council has supported the application, this is viewed as attending the nearest appropriate educational setting and the Council will provide subsidised travel assistance providing the eligibility criteria are met. If the Council has not approved the educational setting as the nearest appropriate setting, it will not provide travel assistance.”

Transport appeals

18. Statutory guidance ‘Home to school travel and transport’ advises that councils should have appeals procedures in place if parents wish to challenge a decision about eligibility for transport assistance. The guidance recommends a two-stage process as follows:
• Stage 1: review by a senior officer
• Stage 2: review by an independent appeal panel to consider “written and verbal representations from both the parent and officers involved in the case”.
19. At each stage the council should send the parent a written decision which sets out what factors the panel considered and the rationale for the decision reached.
20. The statutory guidance for post-16 transport says it is be good practice for councils to follow the same two-stage appeal process for post-16 students as for those of compulsory school age.
21. The Council has a two-stage appeal process, as follows.
• Stage one: a senior officer reviews the decision and sends the applicant a written decision containing “detailed reasoning for the decision made”.
• Stage two: the applicant may challenge the decision on the basis of “exceptional circumstances”. A Transport Appeal Committee made up of local councillors will consider the papers which are provided in advances so that “due consideration can be given to the applicant’s individual circumstances”.
22. Until March 2020 the process did not allow for parents to attend the appeal in person. In October 2019 the Council changed its policy to allow parents to attend. The change took effect in March 2020.
23. The Council has a different application and appeal process for students with special educational needs who wish to apply for more tailored transport rather than help with public transport. In these cases the applicant must complete a Request for Travel Assistance Form, rather than an online form, along with supporting evidence. If the Council refuses the application, any appeal is considered at stage two by the Special Educational Needs and Disabilities (SEND) Panel.

Background

24. Mr X’s son, Y, is 18 years old and has been attending a Further Education college, ‘College 1’, since September 2018. Y has special educational needs including a diagnosis of autism, and has an EHC Plan. The family moved into the Council’s area in 2016 and the Council started reviewing Y’s EHC Plan. The Council issued a draft EHC Plan in October 2018. By the time Mr X made his complaint to the Ombudsman the Council had not issued a final Plan naming an education placement. Following the Ombudsman’s enquiries on the complaint, the Council has now issued the final EHC Plan. The Plan names College 1 in section I.

Application and appeal for transport

25. Mr X applied for help with transport to college for Y in the academic year 2018-2019. The Council awarded the travel assistance in the form of a free bus pass. Y was enrolled on a one-year level 2 BTEC course.
26. Y completed the course and was due to start a level 3 BTEC course at College 1 in September 2019. Mr X wrote to the Council in August 2019 to clarify how to go about applying for transport assistance for the 2019-2020 academic year as he was unsure which form to use, having viewed the Council’s website. The Council replied confirming he had the right form or he could apply online which would save time and result in a quicker decision. It advised him that the qualifying criteria had ‘changed slightly’ since the previous year and sent him a link to the relevant page on the website.
27. Mr X made an online application in early September 2019. On the form he confirmed:
• Y was due to start his level 3 course in September 2019
• Y had an EHC Plan
• Y would like a bus pass
• he was applying ‘on the basis of a learning difficulty or disability’ not on low income grounds.
28. The Council refused the application. The reason given was that Mr X did not qualify on low income grounds. It advised him of his right of appeal.
29. Mr X appealed, making the following points.
• Y qualified the previous year and he thought he should qualify again now as he was still attending the same college and his needs had not changed.
• Y has an EHC Plan.
• Although he did not meet the low income criteria under the Council’s policy, he had debts and felt he was in a similar situation to those who would qualify on low income grounds.
• He believed the decision should be reviewed by the SEND Panel.
30. The Council considered the appeal at stage 1 of its appeal process and wrote to Mr X with its decision. It set out the qualifying conditions as set out in paragraph 14 above, and said he did not satisfy points 1 and 6. This was because:
• he did not meet the low income criteria
• there was another college closer to Y’s home offering the course Y was following, and so he was not attending ‘the nearest publicly-funded sixth form or college offering the course to be studied’.
31. The Council named two nearer schools which it said offered equivalent courses to the one Y was on. Both were A level courses. It explained that if Mr X felt he had exceptional circumstances he could submit a stage two appeal. He would not have an opportunity to attend in person but the panel of councillors would consider the appeal and send him a decision. The Council invited him to send in any further supporting evidence he wanted the panel to consider.
32. Mr X did not appeal at that point. Instead he wrote to his MP to ask for help. He said he felt the Council’s decision was unfair and unreasonable as Y had received transport assistance the previous year. He said Y had not been able to attend the sixth form at his previous school because he did not get the required grades. College 1 accepted him and the course was suitable for him. Mr X said he thought it was unfair to expect his son to change college to qualify for help with transport as he had already started his course. The MP wrote to the Council on Mr X’s behalf, enclosing a copy of his letter.
33. The Council replied to the MP explaining the changes in qualifying criteria and how the Council had phased these in so that students already committed to a course for September 2017 would not be affected. The changes would only take effect from September 2019. The Council said as Mr X had made a fresh application for a new course from September 2019, “rather than for the continuation and completion of an existing course” the Council considered the application under the new criteria. The Council advised that Mr X could still submit a stage two appeal if he wished and provide evidence of any exceptional circumstances.
34. Mr X sent in a stage two appeal in October 2019 and then provided further supporting documents. He referred to the Council’s letter to his MP and said he felt the Council should consider his application for transport under the old policy. He gave his reasons as follows.
• He was not aware of the changes in the qualifying criteria from September 2019.
• He was not aware of the option of applying for transport as a ‘continuation’ of the previous application until he received a copy of the reply to the MP.
• Y did not find out he had a place on the level 3 course until early September 2019 as he had to wait for confirmation he had passed his level 2 course.
• He felt if he had known about the ‘continuation option’ his application for transport was more likely to have been successful.
• He felt it was unfair for the Council to say there were equivalent courses available for Y at nearer schools. First he said the entry requirements were different for A level courses at the schools. Second, he said people with special needs such as his son find change difficult to deal with and he would find it hard to cope with a change of placement now.
35. The Appeals Committee considered the appeal in November 2019. It did not uphold the appeal. The decision letter said the Committee noted that:
• College 1 was not the nearest publicly funded sixth form or college offering the course to be studied
• the family did not meet the low income criteria.
36. The letter said “the Committee, whilst having some sympathy to your situation, could not identify any reason to depart from the Council’s policy” and decided not to uphold the appeal.

Analysis – was there fault causing injustice?

37. I do not consider the Council was at fault in applying the new criteria for the 2019-20 year. I believe Mr X may have misunderstood the Council’s reply to his MP. There was no ‘continuation option’ available to Y. There was protection for students continuing on a course started before September 2019. But Y had started a new level 3 course in September 2019, as supported by the evidence he produced. So the new policy applied.
38. However in my view there was fault in the way the Council dealt with Mr X’s application and appeal as it did not properly take account of the placement named in Y’s EHC Plan and its own policy on the matter. In response to the Ombudsman’s enquiries the Council has accepted the delay in finalising the EHC Plan was “unacceptable”. The delay meant that during the period the Council was dealing with the transport application and appeal there was no final EHC Plan naming a placement. The previous final Plan named College 1. The Council’s policy is that where it agrees the placement named in the Plan it considers it to be the nearest suitable placement for transport purposes. The final Plan, now that it has been issued, names College 1.
39. Having a placement named in the EHC Plan does not provide automatic entitlement to transport. It is open to a council to say it has identified a nearer suitable school or college that it considers the young person should attend, but has agreed to name the parents’ preferred placement. In those circumstances it should make it clear to the parents that they would be responsible for transport costs as it does not consider the named placement the nearest suitable placement that can meet the young person’s needs. The council would state the alternative placement in section I along with the named parental preference and make the position on transport clear. The Council has not done so in this case. There is no mention in the EHC Plan of any alternative placement or any agreement on transport. The Council has confirmed it has no record of any discussion with the family about responsibility for travel costs. Therefore I consider that the Council should apply its own policy and treat College 1 as the nearest suitable placement for transport purposes.
40. There is no evidence that the Council, either in the initial decision or at any stage of the appeal, considered the question of the placement named in the EHC Plan when deciding whether Y qualified for transport. Nor have I seen any evidence that the Appeal Committee considered Mr X’s point about the different entry requirements for an A level course and a level 3 BTEC course, when deciding that the other schools suggested offered an equivalent course.
41. For both these reasons my view is that the Council was at fault in the way it considered the status of College 1 and the course Y is taking.
42. Under the Council’s ‘Special Educational Needs Travel Assistance Policy’, however, even if the Council has approved the education placement as the nearest appropriate setting, it will not provide help with transport unless the other criteria are met. In this case the Council found Mr X did not meet the low income condition. It is correct to say that he did not meet this condition in the policy as he does not receive any of the qualifying benefits. However part of Mr X’s case was that he was experiencing financial hardship.
43. I have not seen the Clerk’s notes of the Appeals Committee meeting. But there is no evidence in the appeal decision letter or the report to the Appeals Committee that the Council or the Committee considered the question of financial hardship. The report to the Committee gave the cost of an annual bus pass. It said the budget for home to school transport is based on its policy and “a deviation from that policy which resulted in an overspend would make it more difficult for the council to achieve its objectives”.
44. The appeal decision letter gave no explanation for the Committee’s decision other than that it could not identify any reason to depart from the Council’s policy. I do not consider this follows the advice in the statutory guidance to set out the factors considered in reaching an appeal decision and the rationale for that decision. Councils should follow statutory guidance unless it can show good reason not to. I find that the Council is at fault in failing to demonstrate that the Appeal Committee properly considered all the circumstances of Mr X’s case, including his financial position, and failing to provide adequate reasons for its decision.
45. I do not know what the Appeals Committee would have decided if it had considered the appeal properly. This uncertainty represents an injustice to Mr X and his son.
46. I consider there are also other faults in the Council’s post-16 transport policies. The Transport Policy Statement does not set out the arrangements the Council proposes to make for young people with special educational needs and disabilities, as required.
47. The policy says all transport for post-16 students is discretionary. It does not explain that the Council will provide help with transport where it considers it necessary, as required. Nor does the policy reflect the factors the statutory guidance says it should take into account when deciding if transport is necessary, including the need for young people to have reasonable opportunities to choose between courses.
48. The Council says it will consider exceptional circumstances in the stage two appeal. However the correct test is whether the transport arrangements are necessary, rather than exceptional. The Ombudsman has issued a public report confirming his view on this point, reference 18012500.
49. In my view having two separate application and appeal procedures for pupils with special educational needs and disabilities depending on the type of transport assistance they are seeking is confusing. Also it increases the chances that the Council and Appeals Committee will fail to take proper account of the placement named in an EHC Plan, as happened in this case. Because Mr X applied for a bus pass for his son, rather than tailored transport, his appeal went through the standard route rather than to the SEND Panel. If he had met the low income condition, then unless the Appeals Committee considered whether the Council approved the placement named in the EHC Plan as the nearest appropriate setting, it might still have rejected the application on the grounds Y was not attending the nearest publicly funded college offering the course. In my view a SEND Panel is more likely to consider this matter. Not following this route may have affected the decision in this case.
50. The Ombudsman would normally criticise a council for departing from the statutory guidance on the matter of transport appeals without providing good reasons. In this case the Council at first did not allow parents to attend stage two hearings, but it has now changed its processes to enable them to do so. So I do not need to investigate the reasons for the previous arrangements.

Agreed action

51. The Council has agreed that to remedy the injustice to Mr X and Y it will take the following action within two months of the final decision on this complaint.
• Arrange a fresh hearing of the Appeals Committee to reconsider Mr X’s appeal. This should consider all the circumstances of the case including the placement named in Y’s EHC Plan, the Council’s policy on this matter, and any evidence Mr X presents about his financial circumstances, to determine whether the Council considers it necessary to provide help with transport. Mr X will now have an opportunity to attend the hearing to present his case.
• Issue a decision following the appeal hearing which explains the factors taken into account and the rationale for the decision.
• If the appeal is successful, the Council should reimburse Mr X the cost of the bus pass he has paid for since September 2019.
52. The Council has also agreed that within six months it will take the following steps and tell the Ombudsman the outcome:
• Review its policy and Transport Policy Statement on post-16 transport to ensure they comply with the law and statutory guidance. This should include referring to deciding whether transport is necessary, and setting out the factors to be taken into account when making this decision. The Statement should also set out the policy on transport for pupils with SEND.
• Consider either having a single application and appeal process for pupils with special educational needs and disabilities, or taking steps to ensure that where such pupils apply for assistance with public transport through the standard route their needs are taken into account.
53. The timescales agreed are longer than usual to recognise the impact of Covid-19 on the delivery of Council services. This is also likely to mean that Mr X will have to attend the appeal hearing via video-link.

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Final decision

54. I find that the Council was at fault in the way it considered Mr X’s application and appeal for home to college transport for his son. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman