Derbyshire County Council (19 018 918)

Category : Education > School transport

Decision : Upheld

Decision date : 28 Jan 2021

The Ombudsman's final decision:

Summary: Mrs C complains the Council has refused to fund her daughter’s transport to college. She says this has caused injustice as she has had to pay. The Council was at fault. Its post-16 transport policy does not accord with the Government’s guidance. The Council has agreed to hold a fresh transport appeal and to revise its guidance.

The complaint

  1. The complainant, who I have called Mrs C, says the Council is at fault for its refusal to fund transport to college for her daughter, who I have called X. She says that she and X have suffered injustice as a result. Mrs C has had to pay £45 per week transport fees and X has not gained the independence she would have done had she taken a bus to college.

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The Ombudsman’s role and powers

  1. 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

  1. I spoke to Mrs C. I wrote an enquiry letter to the Council. I considered all the evidence I had gathered and applied any relevant law and guidance.
  2. I sent my draft decision to Mrs C and the Council and invited their comments.

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What I found

What should happen

  1. Transport arrangements for those in post-16 education are not governed by statute but the Department for Education has issued the Post-16 transport to education and learning – statutory guidance for local authorities (2019). This is statutory guidance so councils must follow it as if it was law. The guidance says:
      1. Local authorities must act reasonably, considering all relevant matters such as the needs of the local population and the resources available.
      2. Young people must now remain in education until they are 18 and councils are responsible for promoting effective participation in education.
      3. Councils have a statutory responsibility for transport. They must publish an annual policy which will set out their arrangements for facilitating the attendance of all persons of sixth form age receiving education or training.
      4. The overall intention of the sixth form age transport duty is to ensure that:
        1. Learners of sixth form age can access the education of their choice; and
        2. If support for access is requested, this will be assessed and provided where necessary.
      5. Councils have an additional duty to those with education, health and welfare plans (EHCPs).
      6. ‘young people should have a reasonable opportunity to choose between the courses available to them at 16 and be supported to access their choices. Local authority transport policies must be supportive of reasonable choice. In deciding what is reasonable, local authorities will want to take into account any complaints received in previous years in respect of local transport policy statements’.

The Council’s Post-16 transport policy 2019-20

  1. The Council’s post-16 transport policy says:
    • It aims to ensure, wherever reasonably possible and having regard to the cost of transport, that learners of sixth form age are able to access the education and training of their choice.
    • It aims to assess and provide transport or travel assistance which is appropriate to meeting eligibility and/or needs, having regard to the cost of transport and any alternative means of facilitating attendance.
  2. The Council says it provides independent travel training for young people who might face difficulty using public transport to help them live more independently.
  3. It says it will only provide transport to the ‘nearest suitable college’.

What happened

  1. Mrs C lives in the Council’s area. Her daughter, X, is registered disabled and is a blue badge holder. She was diagnosed with an autism spectrum disorder when she was 14. She also has other health and mobility issues.
  2. In 2019, X left school intending to go on to sixth form college. Given her GCSE results and her interests, X applied for places at local sixth form colleges. Mrs C says all but one refused her places. She says the closest one that had a suitable course and offered a place was 20 miles from the family home. X accepted.
  3. Mrs C found a transport provider who could provide transport to the college on three days a week for £45 a week but required transport funding for a further two days a week.
  4. Mrs C applied to the Council for post-16 transport funding. The Council refused. It said that X was not attending her closest college. The closest college was less than a mile from the family home.
  5. Mrs C appealed. At the appeal, she argued that X had applied to colleges closer to home, but they had refused her a place for various reasons. The closest college refused her a place because she had a ‘meltdown’ on a visit there. Another refused to accept her on medical grounds. Others did not provide a course in the right area.
  6. Mrs C said the college X attended was, even though it was 20 miles away, the closest one she could attend. She says she provided evidence in support. This included letters from colleges saying they would not take X. She also provided a letter from X’s doctor saying she could not use independent transport.
  7. The Council argued that a taxi five days a week would cost £18,500 a year and the Council’s policy was only to provide direct assistance to the closest college. Mrs C said that she did not require transport for five days a week but only for 1.5 days per week.
  8. The panel considered Mrs C’s submissions and refused the appeal. In the determination letter, the Council said the request did not meet its post-16 transport policy which is only to offer transport assistance to the closest college.
  9. X has also applied for the Council’s Independent Travel Training (ITT) scheme. This was refused because she was found to be ineligible for transport assistance.
  10. Mrs C complained to the Ombudsman.

Was there fault causing injustice?

  1. In response to my enquiries, the Council has said it ‘only provide[s] specific transport assistance to the nearest suitable college or sixth form which provide the relevant level of qualification but not for a specific course’.
  2. In the Ombudsman’s view this position does not accord with the Council’s duty under the national guidance to support ‘reasonable choice’ for post-16 students.
  3. While it is not necessary for councils to provide, or consider providing, transport or transport funding to every applicant for every specific course, at every college no matter how far away it might be, given its responsibility to use public funds wisely, a council cannot say it will only provide transport funding to the closest college regardless of whether this college will offer the student a place or whether it hosts a course even tangentially related to the student’s chosen subject.
  4. The Council’s policy is therefore a faulty one. It has caused Mrs C and X injustice in that their application for assistance was not considered in a way which was in line with the national statutory guidance.

Agreed action

  1. The Council has agreed to write to Mrs C and X without delay and to apologise for the fault found.
  2. Within four weeks of the date of this decision, the Council has agreed to hold a new appeal hearing. It has agreed to first allow Mrs C the opportunity to provide any evidence it requires and to do so having due regard to this decision. At the appeal, it will consider:
      1. The Ombudsman’s findings set out in this decision.
      2. The actual cost of the transport requested;
      3. Whether the Council is providing a reasonable opportunity to choose between the courses available; and
      4. X’s specific needs and requirements, including reference to doctor’s evidence about X’s difficulty in taking public transport.
  3. Should the Council decide X is eligible for transport, it will backdate any payment that it makes as a result of the finding. Within a week of the appeal decision, it has agreed that X will be eligible to join the ITT programme.
  4. Within two months of the decision date, the Council should reconsider its policy in the relevant area and report back to the Ombudsman. It should also amend any affected online and other materials.

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Final decision

  1. I reached a decision that the Council was at fault and made recommendations to remedy that fault. The Council has accepted my recommendations. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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