Summary: Mrs X complains about the Council’s decision to decline her travel assistance application for her son. She says the Council did not properly consider the available information and did not properly consider the financial cost of paying for a person to drive her son to college. She also complains about delays in the Council considering her appeal. We find fault with the Council for making an assumption about the miles per gallon a wheelchair accessible vehicle could achieve. The Council has provided a suitable remedy and no further remedy is appropriate as there is no ongoing injustice.

The complaint

1. Mrs X complains about the Council’s decision to decline her travel assistance application. She says the Council has:
• Not properly considered the information available that her son needs one to one care when travelling in a vehicle.
• Not properly considered the financial impact of paying for a person to drive her son to his place of education. She says her son cannot afford the costs.
• Made assumptions about the availability and cost of the minibuses available to take her daughter to school

She also complains about the delay in the Council considering her appeal as she first submitted it in March 2020, but the Council did not consider the appeal until July 2020.

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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 spoke with Mrs X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent two draft decisions to Mrs X and the Council and considered their comments.

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What I found

Legislation and Guidance

8. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” to facilitate the attendance of relevant young adults at institutions where the local authority has secured the provision of education for the adult concerned.
9. Relevant young adult means an adult who is under 25 years old for whom an Education, Health, and Care (ECH) plan is maintained. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs. The plan coordinates a child or young person’s health and social care needs and sets out any additional support they might need. (The Children and Families Act 2014, section 82)
10. When a council finds it is ‘necessary’ to provide transport for the young adult under section 508F, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).
11. The Upper Tribunal (Administrative Appeals Chamber) has considered transport for post-19 learners with an EHC plan. The Tribunal commented that: “the local authority has a duty to make transport arrangements for [a post 19 learner] if they consider that to be ‘necessary’ having regard to all the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangement and the transportation must be free of charge.” (Staffordshire County Council v JM, 2016] UKUT 246 (AAC)

The Council’s SEND travel assistance policy for post-19 year olds

12. This policy was introduced in April 2020.
13. The policy states the Council’s travel panel will assess all applications. The Panel will consider the individual circumstances of each case and will not apply blanket policies or make assumptions about accompaniment. Applications will be assessed based on the evidence provided.
14. In considering the eligibility of the adult learner to receive an offer, and what offer should be made, the Panel will consider the following and/or any other relevant factors:
• Nature of the journey, for example the distance, likely journey time, complexity of the journey by road, public transport or on foot. Whether the journey on foot or public transport could be reasonably made if the adult learner is accompanied.
• Parent/carer/broader network ability to provide transport support. For example, accompanying the learner on some journeys, transporting the learner on certain days.
• Available suitable vehicle and/or disability benefits.
• The adult learner’s needs relating to travel. For example, whether the adult learner has complex needs, and/or requires a second person on transport.
• Funding available for transport from the college and any other funds the leaner can access.
• The financial circumstances of the adult learner and potential impact of a declined application.
• Advice from the college. For example, whether independent travel training is available as part of the programme.

What happened

15. Mrs X has an adult son, Mr Y. Mr Y was due to attend College A. Mr Y has an Education, Health and Care (EHC) plan.
16. Mr Y’s EHC plan noted he needed one to one care whilst being driven from one place to another. This was because of a lack of control on his posture due to floppiness as part of his disability.
17. In February 2020, Mrs X applied for travel assistance. In the application, Mrs X set out Mr Y could not use public transport and needed a wheelchair accessible vehicle.
18. In March 2020, the panel declined Mrs X’s application. The panel said Mrs X could transport Mr Y. The panel also decided that as Mr Y received a direct payment for a personal assistant, that could be used to assist transport to and from the college.
19. Mrs X was unhappy with the decision and appealed it. In the appeal, Mrs X highlighted that she was not available to take Mr Y to college and there was a clash as she had to take Mr Y’s sister to school.
20. The Council did not consider Mrs X appeal until July 2020. The Council accepted there was a delay in considering the appeal and explained this was due to administrative error and the impact of Covid-19. The Council had apologised to Mrs X for the delay.
21. During the appeal, the panel decided the following:
• Mr Y would need transport fortnightly.
• It was not suitable to use Mr Y’s personal assistant to transport him to and from his college as it would reduce the time left to provide the assessed social need.
• Mr Y could be transported safely without a second person in the vehicle because he had been seizure free for two years.
• There was no obligation on parents to provide transport, but it appeared Mrs X could provide support.
• The travel clash with Mr Y’s sister would only happen occasionally and could be avoided by using the minibus service provided by her school.
• It was reasonable for Mrs X to arrange for a driver to drive Mr Y’s wheelchair accessible vehicle. The Council decided this was affordable for Mr Y based on the financial figures provided.
22. The Council declined to provide travel assistance.
23. Mrs X said the Council did not consider the availability or cost of the minibus service for her daughter. Mrs X also said the Council did not consider the information in Mr Y’s EHC plan.
24. In response to my enquiries, the Council confirmed it did not consider Mr Y’s EHC plan during the appeal as it had not been included with the appeal bundle. It also said the panel had not considered the cost or availability of the minibus service because it was not relevant.
25. The Council also provided information about the figures used to calculate the affordability of arranging for a driver to take Mr Y to college in his motability vehicle. It noted the panel estimated the hourly rate for a driver to be £10 an hour and that a modern wheelchair accessible vehicle would achieve 50 miles per gallon.
26. The Council said it had reconsidered Mrs X’s application for travel assistance in September 2020. The Council said this was due to receiving new information regarding Mr Y’s financial circumstances.
27. The Council has agreed to provide Mrs X with travel assistance through a personal travel budget.

Analysis

28. During the appeal in July 2020, the Council decided Mr Y could be transported safely without a second person in the vehicle because he had been seizure free for two years.
29. There is information within Mr Y’s EHC plan which suggests he needed a second person in the vehicle due to floppiness caused by his disability. However, the panel were not aware of this information as Mr Y’s EHC plan was not submitted with the appeal.
30. The panel can only consider information available to it at the time. Therefore, I do not find fault with the Council for not considering whether Mr Y needed a second person in the vehicle due to floppiness caused by his disability.
31. In her appeal, Mrs X said there would be a travel clash as she also had to take her daughter to school. Therefore, she could not take Mr Y to college.
32. The panel considered this but decided Mrs X could avoid the clash by using the minibuses provided by her daughter’s school. The Council said it did not consider the cost and availability of the service as it was not a relevant factor.
33. The panel considered the minibus service to be a solution to a travel clash. Therefore, the cost and availability of the minibus service would be a relevant consideration for the panel as if the minibus service was not available, or was unaffordable for Mrs X, this would inevitably impact on whether this was a viable solution to the travel clash.
34. However, in response to my draft decision, the Council highlighted the panel did not consider the minibus service in more detail because it was satisfied there would be no travel clash. This was because the panel decided Mr Y could afford a driver to take him to college and so did not need Mrs X to drive him.
35. I accept the Council’s rationale for why it did not examine the availability and cost of the minibus service in more detail.
36. The panel considered Mr Y could afford to make his own arrangements for transport to college. The Council provided the estimated costs it used.
37. In response to my draft decision, the Council explained the hourly rate for a driver it provided was based on actual personal assistance costs for another adult learner’s transport. The Council said the figure used was representative of actual costs and not arbitrary.
38. The Council has now provided its rationale and evidence for why it used the hourly rate of £10 an hour. Therefore, I am satisfied this is merits.
39. However, the Council accepted the figure used for what miles per gallon a wheelchair accessible vehicle could achieved was an assumption. This is fault.
40. In response to my draft decision, the Council said it did not agree this fault caused any injustice as it reasonably appeared to the panel that Mr Y could still afford the costs based on the assumed vehicle economy.
41. However, I consider the fault identified did cause an injustice. While I acknowledge the Council’s comment that it reasonably appeared to the panel that Mr Y could still afford the costs, I do not agree I can reach this view, even on balance. Therefore, the fault has caused uncertainty as to whether the Council made its decision properly that it was affordable for Mr Y to pay for his own travel arrangements.
42. The Council said it had taken steps to ensure future vehicle economy calculations were made available to its panel to properly reflect the user’s car make, model, engine size, and fuel type. This is appropriate.
43. Finally, the evidence shows the Council had accepted there had been a delay with its consideration of Mrs X’s appeal. The Council has apologised to Mrs X for this. I consider this to be an appropriate remedy for the injustice caused.
44. The Council has now reconsidered Mrs X’s application. This was appropriate because it received new information regarding Mr Y’s financial circumstances. The Council has now agreed to provide travel assistance in the form of a personal travel budget.
45. Therefore, the Council has provided a suitable remedy for the injustice caused by the faults identified. No further recommendation is appropriate as there is no ongoing injustice.

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Final decision

46. We find fault with the Council for making an assumption about the miles per gallon a wheelchair accessible vehicle could achieve. This caused an injustice as there is uncertainty as to whether the Council made its decision properly. The Council has provided a suitable remedy and no further remedy is appropriate as there is no ongoing injustice.

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Investigator's decision on behalf of the Ombudsman