Summary: Mrs B complains about the Council’s decision not to award transport assistance for her daughter’s college. She says her daughter has not been attending college because the family cannot afford the transport costs. The Ombudsman finds fault in how the appeal panel considered the issues involved.

The complaint

1. The complainant, who I refer to as Mrs B, complains the Council did not award transport assistance for her daughter, Y, to attend college. Mrs B appealed the Council’s decision. She says the appeal panel did not properly consider the circumstances of the case. Mrs B says Y has special educational needs and cannot travel independently. She says Y has not attended college because the family cannot afford the costs of a taxi.

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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. 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

4. I considered the information Mrs B provided and spoke to her about the complaint. I then made enquiries of the Council. I sent a copy of my draft decision to the Council and Mrs B for their comments before making a final decision.

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What I found

Law, Guidance and Local Policy

5. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider necessary to facilitate attendance at education or training and the financial help available for:
• learners of sixth form age (aged 16-19 if they started the course before their 19th birthday); and
• learners with EHC Plans up to the age of 25 who started their programme of learning before their 19th birthday. (Education Act 1996 section 509AA).
6. The Council’s Post-16 transport policy statement says it recognises that some students with learning difficulties or disabilities may not be able to travel to school independently. It says parents may apply for travel assistance and its SEND panel will consider if it can provide additional support. Such support might include:
• A place on a contracted vehicle
• A personal travel budget
• Taxis – if necessity is proven for students with severe disabilities and/or complex health needs
7. In the past, local authorities were left to determine their own appeals procedures, and they varied widely. The Department for Education’s (“DfE”) ‘Home to School Travel and Transport’ statutory guidance now sets out a recommended two-stage procedure. It says this is to ensure a consistent approach across all local authorities and to provide a completely impartial second stage. The two-stage procedure recommended is:
• Stage 1: review by a senior officer
• Stage 2: review by an independent appeal panel.
8. The guidance says the panel should consider written and verbal representations from both the parent and officers involved in the case.
9. The DfE’s guidance for post-16 transport to education says it is good practice for councils to adopt a similar two stage appeals procedure to that which it uses for pre-16 appeals.
10. The Council’s Post-16 transport policy says if parents disagree with the SEND panel’s decision, they may appeal to the Discretionary Transport Appeal Panel who will consider the case. Parents may not attend the appeal in person.

Background

11. In June 2020 Mrs B applied for school transport assistance for Y to attend college. In the application form Mrs B said Y has autism, learning disabilities, panic attacks, anxiety and a speech and language disorder. She said Y could not travel alone. Mrs B said she does not drive and takes her younger daughter, Z, to primary school so could not also take Y. She said Z also struggles with going to school. Mrs B says Z currently finishes at 14:50 due to the coronavirus.
12. The Council’s SEND panel assessed the application but decided not to award transport assistance. It said that, based on Z’s age, needs and distance she should be capable of independent travel to school and Mrs B was otherwise available to accompany Y.
13. Mrs B appealed the Council’s decision. She said Z was too young to walk to school alone. Also, that she needed a structured handover to teachers due to her own difficulties with schooling. Mrs B provided a letter from the deputy head of Z’s school and her GP in support of her position.
14. The Council treated Mrs B’s appeal as a Stage 2 appeal and arranged for a panel hearing. The appeal took place in September 2020. The panel did not uphold Mrs B’s appeal. It found the SEND panel’s decision was reasonable based on the information available.
15. The appeal panel’s decision letter says it considered the new information about Z’s circumstances. It considered a reasonable solution would be for Z to access the school’s breakfast club where she could receive a structured handover from a member of staff. This would free up Mrs B to take Y to college.
16. The letter also says that Y’s older children travel to the same college and therefore could accompany Y. It says the Panel noted that on her application form Mrs B said Y may be able to travel independently to school one day. It said the panel believed the move from school to college would be a good time to broach this subject rather than put it off for an unspecified period.
17. In her complaint to the Ombudsman Mrs B says the breakfast club is not a suitable alternative. She says she there is no teacher at the club for her to handover to. She says she tried this, and Z had two nights without sleep, anxiety and stomach pains. Mrs B says it is not fair on Z to force her to go to the breakfast club so that she can take Y to college. It also would only cover the mornings and not picking the children up in the afternoon.
18. Mrs B also says her older children do not start college at the same times as Y so could not accompany her, and she cannot travel independently.

Findings

Appeal Panel Decision

19. I find fault in the way the appeal panel considered Mrs B’s appeal.
20. The panel made its decision based on assumptions that breakfast club was a viable solution to free up Mrs B, or that siblings could accompany Y. The panel did not have sufficient information to make those assumptions.
21. Mrs B had provided evidence that Z needed a structured handover. The panel could not have known for certain whether the breakfast club would provide a suitably structured handover for Z’s needs without further information from Mrs B, the school and/or potentially Z’s GP. It is not something the school suggested but an idea thought up by the panel without knowing if there were any problems or barriers to it working.
22. The panel also did not consider whether Mrs B could accompany both Y and Z on the return journey in the afternoon. The Council says Mrs B did not appeal on the basis that she had insufficient time in the afternoon. However, there is no reason she would have referred to the afternoon specifically. The SEND panel declined her application because Z could walk to school alone both ways. It was this that Mrs B challenged. The appeal panel’s decision about breakfast club was new and not something Mrs B had an opportunity to challenge.
23. The appeal panel did not comment on Mrs B’s point that Z was too young to walk home alone. It therefore did not address the subject of the appeal in full.
24. In its response to the Ombudsman, the Council says Y finished at 14:00 and Z at 15:00 so it was reasonable for the appeal panel to assume Mrs B had time to pick both up. However, there is no evidence the panel considered this or reached that conclusion. If it did, there should have been a record of its rationale in the minutes of the hearing or the decision letter. The panel would have needed enough information about journey times to make an informed decision.
25. In respect of travel with other siblings, the panel again did not have enough information to make this decision. There is no evidence it had any information about the siblings’ timetables and whether these matched Y’s timetable.
26. The panel commented that it might be a good time to discuss Y traveling to school alone. The Council says this did not form part of its decision. It is not clear then why the panel included this in its decision letter, if it did not factor into its decision making. The Council accepted throughout that Y needed accompanying to college at that moment in time. Whether it might change in the future and when was not relevant to the appeal.

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Agreed action

27. The Council has agreed to, within a month of this decision:
• Apologise to Mrs B for the fault in the way the appeal panel considered her case
• Arrange for a fresh appeal panel to consider the case, based on the further information Mrs B has provided

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Final decision

28. The Council is at fault in the way its appeal panel considered Mrs B’s appeal.

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Matters I have not investigated

29. The Council’s appeal procedure for post-16 transport does not follow the recommended two stage procedure in the statutory guidance. The SEND panel is the initial decision so is not part of the appeal procedure. There is only one stage to the appeal procedure, which is the appeal panel.
30. Statutory guidance says it is good practice to follow the two-stage procedure for post-16. The Ombudsman has considered the Council’s post-16 appeal procedure in previous cases and not found fault. However, our recent report 19008896 sets out our current position, which is that councils should follow statutory guidance unless they can provide clear, cogent reasons for not doing so.
31. I have not investigated this matter further as I do not consider it would be proportionate to delay the outcome of this case, when only outcome that will impact on Mrs B is for the Council to hold a fresh hearing. However, the Council may wish to consider the above when conducting appeals or reviewing its procedures in the future.

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Investigator's decision on behalf of the Ombudsman