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East Sussex County Council (20 002 412)

Category : Education > School transport

Decision : Upheld

Decision date : 03 Aug 2021

The Ombudsman's final decision:

Summary: the complainant complained the Council failed to properly consider the college named in her son’s EHC Plan as the closest suitable college when deciding an application for transport support. The Council accepted it should have considered the college in the EHC Plan as closest and considered a fresh application for transport support. We found the Council at fault in making its first decision. In offering an apology, considering a fresh appeal, and providing details on low-income mileage allowance scheme we found the Council offered a proportionate remedy.

The complaint

  1. Mrs X complains the Council failed to properly consider that her son, Y, had an ECH Plan naming College 1 as the education provider when deciding if Mrs X had shown it was necessary for the Council to provide transport for Y.
  2. Mrs X says this led to distress, inconvenience, and expense because the family transport Y to college.
  3. Mrs X wants the Council to accept the necessity of providing transport for Y to attend College 1.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. If 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. In considering this complaint I have:
    • Spoken with Mrs X, and read the information presented with her complaint;
    • Put enquiries to the Council and reviewed its response;
    • Researched the relevant law, guidance, and policy.
  2. I shared with Mrs X and the Council my draft decision and considered their comments before making this my final decision.
  3. 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

Legislation and guidance

  1. Under the Education Act 1996, 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)
  2. The statement must specify the arrangements the council considers necessary to make for providing financial assistance for travelling expenses. Or arrangements for providing transport made by the governing bodies of schools and further education colleges; and any travel concessions on offer.
  3. Section 509AB of the Education Act 1996 also states councils must set out the arrangements the council proposes to make for young people with SEND (special educational needs) and disabilities.
  4. A child with special educational needs may have an 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.
  5. 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)
  6. 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 and appeals.

  1. The policy notes the Council does not have a statutory duty to provide free or subsidised travel for young people of sixth form age and over. It states the Council only considers applications for transport support if the applicant meets the gateway criteria.
  2. The gateway criteria which an applicant must meet are:
    • 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.
  3. The policy also says the Council will only help with the most exceptional cases.
  4. Under the Council’s SEND transport appeal procedure, the Council will consider an appeal against a decision to refuse a transport application at Stage 1 by referring it to an Officer SEND Panel.

What happened

  1. When Mrs X’s son Y moved to sixth form college, he chose College 1 as the preferred choice. The family applied for home to college transport under the Council’s travel assistance policy. Y experiences highly anxious episodes due to ASD and could not use public transport without accompaniment to get to College 1. Mr X’s workplace lay in the opposite direction from College 1. Mrs X cannot drive and accompanies Y’s younger siblings to school so could not help Y.
  2. The Council said College 1 is not the nearest suitable college, but the Council agreed to name it in Y’s EHC Plan as the preferred placement. The nearest suitable college the Council said is College 2. Therefore, when it considered the application for transport assistance the Council says it refused the application because College 2 was the closest college and not College 1.
  3. Mrs X appealed this decision. The Council’s appeal procedure did not allow parents to represent themselves in person at appeals. The appeal decided in June 2020 not to grant travel support. It decided it was not necessary to provide transport because Y had chosen not to attend the college closest to him.
  4. In September 2020 we issued a decision on a similar complaint where we found the Council at fault in how it decided the closest suitable college for a post-16 student. The Council says that since that decision it has changed its procedures. Officers now discuss with parents when preparing EHC Plans whether a placement is the closest suitable college or parental preference and the transport responsibilities associated with each. Following our decision, the Council offered to review Mrs X’s case on the understanding that College 1 is the closest suitable college for Y.
  5. On 16 December 2020, the Council’s Officer SEND Travel Panel (the Panel) the first stage of its appeals procedure considered Mrs X’s application having accepted College 1 as the closest suitable college. Mrs X provided an update of the family’s circumstances to the Panel. The Panel noted Mr X no longer worked at his previous employment. So, as it set out in its decision letter, the Panel decided Mr X was available to transport Y to college and believed he had been doing so since his redundancy. Therefore, the Panel rejected the application for transport assistance saying Mr X’s availability meant it was not necessary to provide transport. The Council told Mr and Mrs X they may qualify for low-income mileage allowance and set out how they could apply for that.

Analysis – was there fault leading to injustice?

  1. My role is to consider how the Council decided the application for transport assistance and if I find fault to decide what impact that has had and how the Council should address that impact. My role is not to decide whether the Council should provide Y with transport assistance.
  2. The Council accepts that it did not properly consider College 1 as the closest suitable college when Mrs X first applied for transport assistance. I find it at fault for that.
  3. In presenting an appeal parents may include details of the family’s finances and ask the Council to consider any financial hardship refusing an application for school transport may cause. The Council says it did not receive any claim of financial hardship in the appeal and so did not consider it.
  4. I applaud the Council’s offer to consider the application again having accepted College 1 as the closest suitable college for Y. That appeal took place in December 2020. The Panel had before it details of the family’s changed circumstances. Having correctly considered College 1 as the nearest suitable college the Panel decided Mr X’s availability to escort or drive Y to college meant transport assistance was not necessary. Councils may consider if someone is available to drive or escort the pupil when deciding if transport is necessary. Mr X clearly wants to return to work for the benefit of the family and if he does the Council must consider the changed circumstances in any further application for support. Mr X’s availability is a material consideration in deciding the ‘necessity’ of transport. I find the Panel properly considered all the facts including College 1 as the closest college in its review in December 2020 and acted without fault in deciding that application.
  5. I find but for the fault in considering Mrs X’s original application the family will never know if it would have received transport assistance in the circumstances prevailing when they first applied.
  6. In commenting on my first draft decision the Council confirmed that in December 2020 it had invited Mr and Mrs X to apply for consideration under the low-income criteria. However, the Council had not received an application for that scheme. That offer and the Council’s apology for its previous error I find is a proportionate remedy for the injustice caused. Therefore, I am not recommending any further remedy

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Final decision

  1. In completing my investigation, I find the Council acted with fault causing injustice for which it has offered a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman

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