Summary: Miss X complains the Council did not tell her that naming a specific college in her son’s Education, Health and Care plan would affect his transport assistance eligibility. The Ombudsman finds fault with the Council’s decision that Miss X’s application did not meet the gateway criteria to be assessed for transport assistance. We also find fault with the way the Council considered Miss X’s transport application and with the Council’s post 16 SEND travel assistance policy.

The complaint

1. Miss X complains the Council did not tell her that naming a specific college in her son’s Education, Health and Care (EHC) plan would affect his transport assistance eligibility. She says the Council knew she wanted transport assistance. The Council has now refused post 16 transport assistance for her son. Miss X said if she had known this, she would have asked the Council to name a different college in the EHC plan. Miss X says this has caused financial strain. Miss X also says the situation has caused her son distress.

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. 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)
5. 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

6. I spoke with Miss X and considered the information she provided.
7. I made enquiries with the Council and considered the information it provided.
8. I sent a draft decision to Miss 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).

Back to top

What I found

Legislation and guidance

10. Councils must publish a statement specifying the arrangements for the provision of transport or otherwise they consider it necessary to make for the attendance of persons of sixth form age receiving education or training at specified institutions. (Education Act 1996, section 509AA)
11. The statement must specify the arrangements the council considers 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.
13. A child with special educational needs may have a statement or Education, Health and Care (EHC) plan. Where a child is to be educated in a school, section I of the plan must name the school the child will attend.
14. The child’s parent, or the young person, has the right to ask the council to name a specific maintained school in the EHC plan. If the Council does not name the preferred school in the final EHC plan, then the parent or young person has a right of appeal to the Special Educational Needs and Disability Tribunal (SEND).
15. The parental preference school might be further away from the home than the nearest school that can meet the child’s needs. In such a case, a council can name the nearest school if it considers it to be appropriate for meeting the child’s SEN. If the parent prefers the school that is further away, the council may agree to this but is able to ask the parents to provide some or all of the transport funding. (Special educational needs and disability code of practice: 0 to 25 years, January 2015, paragraph 9.214)
16. Where a council says a nearer suitable school than the one chosen can also meet a child’s SEN, the Code is silent about whether it should name both schools on the EHC plan. However, a determination of the SEN Upper Tribunal (Dudley MBC v JS [2011] UKUT 67 (AAC)), found that councils could name two schools on a Statement of SEN (the predecessor of EHC plans).

The Council’s Post 16 SEND travel assistance policy

17. The policy notes the Council does not have a statutory duty to provide free or subsidised travel support for young people of sixth form age and over. It states the Council only considers requests for transport support if the gateway criteria is met.
18. The gateway criteria is set out in the policy. The following must be met:
• The student lives in the Council’s area.
• The student has a current EHC plan.
• The student will be attending a full-time educational course which allows appropriate progression.
• The placement is the nearest suitable school or college to their home address, unless agreed otherwise by the Council, and named in the EHC plan.
• The student cannot travel to the placement independently by any route which is recognised as safe - by any mode of transport or on foot.
19. The policy also says the Council will only help with the most exceptional cases

What happened

20. Miss X’s son, Z, has an EHC plan. In May 2019, the Council held a meeting to review A’s EHC plan. Miss X attended the meeting with support from an organisation. The Council said a change of placement was discussed at this meeting. The Council said it had discussed with Miss X the implications of this on transport assistance.
21. The organisation who provided support to Miss X during the meeting has provided its notes from the meeting. The record noted Miss X was considering a different placement, but no specific college was mentioned. There was no mention of transport being discussed in the notes. The officer who attended also stated she had no recollection of the Council telling Miss X of the implications regarding transport.
22. In June 2019, Miss X asked the Council to name College B in Z’s EHC plan. At the end of June 2019, the Council told Miss X that College A was the nearest suitable provision to her home address. The Council explained if Z was enrolled at College B, the Council would only consider transport support if the Council changed its view that College A was the nearest suitable provision.
23. The Council finalised Z’s EHC plan in August 2019 and named only College B in Z’s EHC plan. The EHC plan did not state Miss X would be responsible for providing transport to the college or that the Council’s view was that College A was the nearest suitable provision.
24. In August 2019, Miss X applied for transport assistance. The Council told Miss X it could not consider her application as the application did not meet its gateway criteria. The Council said College A was closer and could meet Z’s needs.
25. Miss X said the Council had not told her naming College B would affect transport assistance. Miss X said if she had known this, she would have asked the Council to named College A on the EHC plan and would have challenged this at Tribunal. Miss X complained about the Council decision.
26. In September 2019, the Council responded to Miss X’s complaint. The Council said it had discussed the implications of naming College B during the annual review meeting in May 2019. The Council said College A can meet Z’s needs but named College B as parental preference. The Council said Miss X could appeal the transport decision.
27. Miss X appealed and the panel responded in November 2019. The panel said College A could meet Z’s needs and therefore College B was a result of parental preference. The panel said the original decision was in line with the Council’s policy.
28. The panel also considered other issues. The panel noted Z wished to pursue a career as a PE teacher and so felt travelling by public transport should not be beyond his capabilities. The Council also formed the view Miss X could reasonably be available to help Z to travel by public transport and that Miss X’s financial position was not exceptional hardship.
29. The panel decided it did not find the case to be exceptional and so was not prepared to exercise discretion to provide transport support.

Analysis

Nearest suitable provision

30. There is a conflict of evidence about whether the Council discussed the transport implications of naming a different college in Z’s EHC plan in the meeting held in May 2019. The Council’s evidence is that it was discussed. However, evidence from Miss X and the third-party organisation suggests it was not discussed. On balance, I am of the view the matter was not discussed.
31. However, there is evidence the Council provided Miss X with information that it considered College A to be the nearest suitable provision. The Council also told Miss X it would not consider transport assistance if Miss X chose College B as parental preference. The Council provided this information in June 2019, before it finalised the EHC plan in August 2019.
32. The code of practice highlights the parental preference school might be further away from the home than the nearest school that can meet the child’s needs. In such cases, a council can name the nearest school it considers to be appropriate for meeting the child’s SEN. If the parent prefers the school that is further away, the council may agree to this but is able to ask the parent to provide some or all of the transport funding. The Dudley determination also sets out that councils can name two schools in an EHC plan.
33. In this case, the Council did not name College A in Z’s EHC plan, it only named College B. If the Council’s view was that College A was the nearest suitable provision, it should have named College A and College B in Z’s EHC plan. This would have made it clear that College B was parental preference and that the Council was only naming College B on the basis Miss X would provide transport. Had the Council done this, Miss X would have had the right to appeal the Council’s decision that College A was the nearest suitable provision.
34. As it stands, the Council only named College B in Z’s EHC plan. This means only College B can be considered Z’s nearest suitable provision. Therefore, I find fault with the Council’s decision that Miss X’s application did not meet the gateway criteria. The evidence shows the gateway criteria was met and the Council should have considered Miss X’s application.
35. The evidence suggests that despite the Council’s view that the gateway criteria was not met, it nevertheless considered Miss X’s application. This is because the panel’s decision sets out its consideration of other matters, not just the issue of whether College B was Z’s nearest suitable provision.
36. The panel noted it decided Z could take public transport because he wanted to be a PE teacher. The panel’s view was that because of this, travelling by public transport was not beyond his capabilities.
37. However, the panel has not shown how it considered the information that Z could not manage going down a road and that he would not get on a bus. It is also not clear from the evidence how the panel concluded that getting public transport would not be beyond Z’s capabilities as it did not explore what capabilities Z had.
38. Further, the panel also decided it was reasonable for Miss X to accompany Z on public transport. However, there is no evidence the panel considered any information about Miss X’s availability or work pattern. Therefore, it appears the panel made this decision arbitrarily, rather than one supported by evidence.
39. Therefore, I am not satisfied the panel made its decision properly. This is fault.
40. Finally, 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.
41. 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.
42. The panel said in its decision letter it did not find the case to be exceptional and so was not prepared to exercise discretion. Therefore, the panel has applied the wrong test when it considered Miss X’s appeal. This is fault.
43. I find the faults identified would have caused an injustice because there is uncertainty about what decision the Council would have made had it made its decision properly and applied the correct test.

Agreed action

44. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
• Reconsider Miss X’s application and decide whether it is necessary to provide transport assistance. If the Council needs further information before it can make its decision, the Council should ask Miss X to provide the required evidence.
• If after considering Miss X’s application, the Council decides it should have provided transport assistance earlier, the Council should reimburse Miss X for any travel costs she incurred which she should not have. Miss X should provide receipts of the costs incurred.
45. The Council should complete the above within six weeks of the final decision.
46. I also acknowledge that it is open to the Council to amend Z’s EHC plan to reflect its position that College A is the nearest suitable provision. This will give Miss X the right to appeal to the Tribunal if she disagrees with the decision.

Back to top

Final decision

47. I find fault with the Council’s decision that Miss X’s application did not meet the gateway criteria. I also find fault with the way the Council considered Miss X’s transport application and with the Council’s post 16 SEND travel assistance policy. The Council has agreed to my recommendations. Therefore, I have completed my investigation

Back to top

Investigator's decision on behalf of the Ombudsman