Summary: Mr X complains about the Council’s decision not to provide his son with travel assistance to college. The Council is at fault in how it reached its decision as it did not consider if it was reasonable for Mr X’s son to use public transport as he has autism and learning difficulties. As a result, Mr X cannot be certain the Council properly considered his application and appeal. The Council has agreed to remedy this injustice by reconsidering Mr X’s appeal.

The complaint

1. Mr X complains about the Council’s decision not to provide his son with travel assistance to college. He says his son cannot travel on public transport and he cannot accompany his son due to other commitments. Mr X says this has caused an injustice to his son as he is missing out on education as he cannot travel to his college.

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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 have:

• Considered the complaint and the information provided by Mr X;
• Considered the information provided by the Council.
• Issued a draft decision to Mr X and the Council for their comments. I considered any comments received before making a final decision.
• 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

6. 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.
7. 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.
8. Section 509AB also states councils must set out the arrangements the council proposes to make for young people with SEND and disabilities.

Travel assistance policy for 0-25 year olds in education

9. This policy sets out the Council’s eligibility criteria for travel assistance for those aged over 16.
10. It notes that parents are expected to accompany their children to school or college where necessary until they turn 18, unless there is a good reason why it is not reasonable to expect them to do so.
11. It states that in considering whether to provide travel assistance, the Council will have regard to the following:
• The nature of the route or alternative routes which the young person could reasonably be expected to take; and
• The nature of the young person’s special educational needs, disability or learning difficulty.

What happened

12. Mr X’s son, Z, has an Education, Health, and Care (EHC) plan. Z has a diagnosis of Autism and learning difficulties. Z’s EHC plan noted he was sensory sensitive to noise and crowds.
13. In August 2019, Mr X applied for travel assistance for Z. In the application, Mr X highlighted he could not accompany Z to college due to having to accompany his daughter to her college. Mr X also highlighted Z cannot use public transport due to his behavioural needs and his lack of understanding.
14. Z’s college provided the Council with supporting information about Z needs. Z’s college highlighted that he was intolerant of noise and socially crowded places. The college noted Z was not an independent traveller and would not be able to travel on public transport
15. In September 2019, the Council declined travel assistance because the reasons provided by Mr X were not considered exceptional enough to award discretionary assistance under its policy. Mr X appealed this decision.
16. In October 2019, the Council completed its stage one review of Mr X’s appeal. The Council dismissed Mr X’s appeal. The Council said Mr X had not provided sufficient reason as to why he and his wife could not accompany Z to and from college using public transport. The Council advised Mr X to apply for a concessionary bus pass and that it would provide Mr X with a one term bus pass while he applied for the pass.
17. The Council’s letter also explained how to request a stage two appeal to be considered by an appeal panel. The letter explained that the panel would consider written and verbal representations from the applicant.
18. At the end of October 2019, Mr X asked the Council to review its decision at stage two. In his request, Mr X highlighted again that public transport was not a suitable method of transport for Z due to his Autism diagnosis and his learning difficulties.
19. In January 2020, a panel considered Mr X’s case at stage two. It is not clear if Mr X was invited to make verbal representations to the panel. The panel declined Mr X’s appeal on the basis there was no specific evidence of Mr X’s medical difficulties or why it was unsafe for his daughter to travel independently by public transport. The panel’s offer remained a concessionary bus pass.

Analysis

20. The Council’s policy notes that parents are expected to accompany their children to school or college where necessary until they turn 18, unless there is a good reason why it is not reasonable to expect them to do so.
21. The Council’s decision for not providing Z travel assistance is because Mr X had not provided sufficient information to support why he, or his wife, could not accompany Z to college using public transport. The Council is entitled to consider this as it is in line with its policy.
22. However, the Council’s policy also notes that when considering whether to provide travel assistance, the Council will have regard to the following:
• The nature of the route or alternative routes which the young person could reasonably be expected to take; and
• The nature of the young person’s special educational needs, disability or learning difficulty.
23. Given both Mr X and Z’s college specifically highlighted that Z had sensory sensitivities to noise and crowded places, the Council should have considered whether it was reasonable to expect Z to take public transport, regardless if he was accompanied or not. There is no evidence the Council properly considered this matter when making its decision on Mr X’s application and when considering his appeals. This is fault.
24. The Council’s letter notifying Mr X of the stage one appeal decision referred to the applicant being able to make verbal representations to the appeal panel. There is no evidence to show the Council invited Mr X to make verbal representations. This is fault. Mr X provided written representations but it is possible he would have been able to provide more information, particularly about why Z could not use public transport, if he had been invited to do so.
25. The fault identified has caused an injustice as there is uncertainty as to what decision the Council would have made had it properly considered the circumstances and the impact of Z’s special educational needs and disability.

Agreed action

26. To remedy the injustice caused by the fault identified, the Council will:
1. reconsider Mr X’s appeal at stage two and ensure it considers whether public transport is a suitable mode of transport for Z given his sensory sensitivities to noise and crowds. The Council should take this action within one month of my final decision.
2. review its appeal procedures to ensure applicants are invited to provide verbal representations to the stage two appeal panel. The Council should take this action within two months of my final decision and explain to the Ombudsman the action it has taken to improve its performance in this area.

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Final decision

27. The Council is at fault in how it reached its decision to refuse travel assistance for his son to go to college. As a result, Mr X cannot be certain the Council properly considered his application and appeal. The Council has agreed to remedy this injustice by reconsidering Mr X’s appeal. This is an appropriate and proportionate remedy so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman