Summary: Miss Y complains about the Council’s decision not to provide taxi transport for her son, Mr Y, to attend college. We find the Council’s decision making was flawed because there is no evidence to show the appeal panel considered all relevant factors in Mr Y’s case. The Council should retake its decision, apologise and pay £200 in recognition of the avoidable time and trouble caused by fault.

The complaint

1. The complainant, whom I will call Miss Y, complains about the Council’s decision to refuse taxi transport for her adult son, whom I will call Mr Y, to attend the college named in his Education Health and Care Plan (EHCP). Despite her own ill-health, Miss Y says the Council has concluded that she is able to accompany Mr Y on two buses to and from college.
2. Miss Y says the Council’s actions have caused her injustice because she is expected to accompany Mr Y to and from college, thus impacting on her health and her ability to work. Miss Y says Mr Y has also experienced injustice because of the anxiety he experiences when using public transport. As a result, she says Mr Y is no longer able to attend college.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. 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

7. During my investigation I considered the information provided by Miss Y and gave her the opportunity to discuss the complaint with me by telephone.
8. I made enquiries of the Council and considered its response, alongside any relevant legislation, caselaw, guidance and policies.
9. I put my provisional findings in a draft decision statement and invited comments from the Council and Miss Y which I considered before making a final decision.

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What I found

What should happen

Post-16 entitlement to transport

10. The Ombudsman expects councils to publish policies and follow those policies when considering requests for transport. Policies must comply with the law and statutory guidance unless the Council has good reason to depart. The policy should set out the transport arrangements considered necessary by the Council to facilitate attendance at education or training for:
• learners of sixth-form age. These are young adults aged between 16-19 who started their course before their 19th birthday; and
• learners with an EHCP up to the age of 25 who started their programme of learning after their 19th birthday.
11. The intention of the sixth-form age transport duty is to ensure that learners can access education or training of their choice. Requests for transport support are assessed and provided by the Council where necessary. Transport support could include a concessionary fare, bus passes or cash equivalent, independent travel training, a fixed mileage allowance or the provision of actual transport.
12. When considering whether it is necessary to make transport arrangements for a sixth-form pupil, section 509AB of the Education Act 1996 says that councils must consider a range of factors including the nature and distance of the route and any alternative routes which the person could reasonably be expected to take.
13. The government’s statutory guidance ‘Transport to Education and Training for people aged 16 and over’ says councils must exercise their power to provide transport or financial support “reasonably, taking into account all relevant matters”
14. The guidance also says councils should publish a complaint or appeal process as part of its transport policy and suggests a similar two-stage complaint process to that used for pre-16 appeals.

Section I of EHCPs

15. Where the parents’ preferred establishment is further away than the one which the Council considers is most suitable, the Council is entitled to name the closer one if placing the child or young person at the parental choice would be an unreasonable use of public funds. In making this decision the Council must include the cost of transport to both establishments in the comparison.
16. The Council may agree to name the parents’ preferred establishment if the parent agrees to meet the transport costs. But in these cases, the Council must name both establishments in Section I of the EHCP and specify the condition that the parents will pay for the transport.
17. If the EHCP names one establishment without conditions, that one is deemed the nearest suitable even if it is further away. This is because the Council has not arranged for the child to attend a closer establishment.

Parental responsibility and accompaniment

18. Parents and carers are responsible for ensuring children of compulsory school age attend school under section 7 of the Education Act 1996. There is no similar parental duty towards dependents over the age of 18 who have an EHCP. Parental responsibility ends when a young person reaches age 18.
19. The statutory guidance makes no reference to parents accompanying their sixth-form age children to school. The LGSCO’s Casework Guidance Statement refers to relevant case law on this point: R (on the application of S) v Education Ltd (Waltham Forest) and another [2006] EWHC 3144. This judgement concluded that parents of sixth form aged children have to “do more”, but also said there is “no absolute rule that the parents of 6th form age children who cannot travel to school on their own are expected to take them, and what parents can be expected to do will depend on their circumstances”.

What happened

20. Mr Y has an EHCP which names a college in Section I as his place of attendance from September 2020. I will refer to this as ‘the college’. The college has more than one site, but only one is named in Mr Y’s EHCP. It is 12 miles from Mr Y’s home. Mr Y started his college course before his 19th birthday.
21. In June 2020 Miss Y applied to the Council seeking help for Mr Y’s travel to and from the college. In her application Miss Y told the Council that Mr Y cannot travel independently due to his autism, high anxiety and communication difficulties. Miss Y told the Council that she does not drive and has “severe osteoarthritis” in her hip and feet and that her walking is “seriously restricted” as a result. Miss Y also advised the Council she usually has work commitments between 9am and 5pm.
22. The Council advised Miss Y in July 2020 that Mr Y was not eligible for transport assistance because he was not attending the nearest suitable college. The Council insisted that Mr Y could attend the college’s other site, which was closer to his home address.
23. Miss Y’s representative challenged the Council’s decision. She pointed out the Council named only one college site in Mr Y’s EHCP and so it must be the nearest suitable establishment.
24. Miss Y submitted an appeal on 21 September 2020. In the form Miss Y said that she was not available to help with Mr Y’s transport. She reiterated that she has great difficulty walking and that her family is on a low income so she cannot afford the four bus journeys each day accompanying Mr Y to and from college. Miss Y also told the Council in a separate email that Mr Y had experienced his first public seizure in a supermarket.
25. The Council acknowledged Miss Y’s appeal and advised that it would be heard at the next scheduled panel on 14 October 2020. The Council also told Miss Y that it “…. Does not currently allow attendance at the appeal hearings”. The Council also went on to say “…please do let me know whether there are any additional verbal representations you wish to make. You can make these by ringing me direct or emailing by 11am this Wednesday at the latest”.
26. The minutes of the appeal hearing reveal the following:
• The panel unanimously agreed it is necessary for the Council to provide Mr Y with free transport to facilitate his attendance at the college named in his EHCP.
• The panel decided there was a “reasonable” public bus route with one change needed in the local town centre. The panel decided this was suitable because Mr Y can use public transport if accompanied and Miss Y has been dropping him off at college via public transport.
• The panel noted Miss Y’s voluntary work commitments but felt it was appropriate for her to accompany Mr Y and that “…it was a reasonable expectation for the appellant to act as chaperone and that the home to college journey should take priority over any voluntary work”.
• The panel did not doubt that Miss Y’s arthritis makes walking difficult but said from the information available it was clear Miss Y could access public transport.
• The panel noted Miss Y’s financial means were limited and decided Mr Y should receive a free bus pass.
27. The Council wrote to Miss Y on 22 October to advise that it had decided to grant a free bus pass to Mr Y on the basis that Miss Y would accompany him to college.
28. Miss Y’s representative wrote to the Council in November to express their view that it was not appropriate to assume that Miss Y was willing and able to accompany Mr Y to college. They also advised the Council that Mr Y had been admitted to hospital for a short stay after experiencing three seizures induced by his heightened anxiety. Miss Y later contacted the Council to retract the letter written by her representative because she intended to pursue a judicial review.
29. Miss Y reports that Mr Y does not attend college currently as he cannot manage the daily bus journey which involves one change in the local town centre.
30. The Council argued that it was reasonable for Miss Y to accompany Mr Y to college and that he did not require taxi transport. Dissatisfied with the Council’s handling of the matter, Miss Y approached the Ombudsman for an impartial review.

Was there fault in the Council’s actions causing injustice?

Section I of Mr Y’s EHCP

31. There was just one establishment named in Section I of Mr Y’s EHCP and the Council accepts this is, and has always been, the nearest suitable establishment. It was therefore fault for the Council to advise Miss Y in July 2020 that Mr Y was ineligible for support on the basis that he was not attending his nearest suitable college.
32. Miss Y experienced unnecessary time and trouble in arguing with the Council on this point and she was prevented from appealing sooner. This in turn meant that Mr Y had to privately fund his transport until the Council granted a free bus pass.
33. The Council acknowledges this fault prevented Mr Y from appealing sooner. Had the Council decided in July 2020 that Mr Y was eligible then his appeal would have been heard in September 2020. The Council therefore agrees to make a payment to reimburse Mr Y’s transport costs between September 2020 and January 2021.

Verbal representations

34. At the time of the appeal, the Council’s ‘SEND Transport Assistance Policy’ for those aged 16-19 said it was not possible for students/parents/carers to attend appeal panel meetings in person. In our draft decision, we said this was a blanket approach, and the Council fettered its discretion to consider cases where it was necessary for those involved to present their case. The statutory guidance makes clear that appellants should be given the opportunity to present their case if needed.
35. We have previously found fault with the Council on this point in case reference 19014659. In that case, the Council told the Ombudsman it took legal advice, and this concluded the appeal process did not depart from the statutory guidance because this only says the opportunity for verbal representations is recommended, not compulsory. The Council also pointed to the part of the guidance which said, “the specifics” of the process “will need to be decided by local authorities”.
36. The guidance is statutory; it is not an explanatory document or informal advice. It has a significant status and councils must have regard to it when drawing up their policy. Councils may depart from statutory guidance, but the courts have said they can do so only if they have compelling reasons. The Ombudsman shares this view.
37. With that said, the Council accepted in case 19014659 there may be exceptional cases where parents may be disadvantaged in making their appeal if they cannot make verbal representations. The Council says it would decide on the circumstances of the individual case whether it would be a reasonable adjustment for the parents to attend the appeal panel in person or through a remote hearing. This should be reflected in its policy.
38. Since Miss Y’s appeal, the Council has amended its policy following our recommendations. The revised policy allows applicants to provide verbal representations in exceptional circumstances where the person would otherwise face significant disadvantage in making their appeal. Although we found fault on this point, I am not persuaded that Miss Y experienced any significant injustice because she was invited to make verbal representations by telephone.

Parental accompaniment

39. Section 3.2 of the Council’s ‘SEND Travel Assistance Policy for 16-19 year olds’ says “parents/carers will be expected to prioritise transporting the student over other commitments”. The policy goes on to say at section 6.1 that “the members of the Panel will consider the individual circumstances of each case and will not apply blanket policies or make assumptions about accompaniment. The panel members will consider whether it is reasonably practical in the circumstances of each case for parents/carers to accompany the student”.
40. Parents, like Miss Y, have no parental responsibility for any sons or daughters aged over 18. The Council has no basis in law to insist that parents must transport or accompany them to school or college as a priority.
41. Although the Ombudsman welcomes the clarification provided in section 6.1 of the policy, we are concerned that section 3.2 suggests a blanket approach. The Council should therefore review the wording of section 3.2 to ensure its policy is consistent on the issue of accompaniment.

Appeal hearing

42. We find the Council’s decision making in Mr Y’s case was flawed for the following key reasons:
• The panel did not explain why they felt it was acceptable for Miss Y to prioritise taking her son to college over and above all other commitments. In her appeal form Miss Y explained that she usually has voluntary work commitments between 9am and 5pm. The decision letter noted Miss Y’s work commitments but did not demonstrate any reasoning as to why it was reasonable for Miss Y to accompany Mr Y over and above those commitments. The Council has since explained that Miss Y receives Carer’s Allowance for Mr Y and so in its view there is an expectation for her to assist with his travel. There is no evidence the panel considered this point at the time of the hearing.
• Miss Y has made clear that she has limited financial means. Although the Council points out that Miss Y did not complete all sections of the appeal form relating to her finances, she did make clear that she was in receipt of benefits and included the following statement, “I am in receipt of Income Support and Carer’s Allowance and do not have the financial means to pay for taking him to college every day which would mean 4 journeys for me. Even more expensive going to [area name removed]”. There is no evidence the panel considered the financial impact of Miss Y having to pay for her own bus fare which amounts to four journeys (or two returns) each day.
• Miss Y informed the Council three weeks before the appeal hearing that Mr Y experienced his first seizure in public. The Council confirms the panel was aware of this information, however there is no evidence to show it considered this point in relation to Mr Y’s ability to safely use public transport. If the panel needed supporting medical evidence about the nature and frequency of Mr Y’s seizures, it could have requested this before making its decision.
• The route from Mr Y’s home to college is at least 75 minutes long and involves a change. There is no evidence to show the panel considered this against the Department for Education’s ‘good practice’ guidance which suggests a maximum journey time of 75 minutes for secondary aged and sixth-form pupils without SEN. For pupils with SEN, the guidance suggests a shorter journey time is usually more appropriate.
43. The fault in the Council’s actions caused injustice to both Mr Y and Miss Y. The Council will undertake the actions listed at the end of this statement to remedy the injustice caused by this fault.

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Agreed action

44. Within four weeks of my decision, the Council has agreed to:
• apologise to Miss Y and Mr Y for the faults identified in this statement and pay £200 for the avoidable and unnecessary time and trouble caused by the fault.
• re-take its decision using a fresh panel who have not previously heard Mr Y’s case. The Council should also consider whether it is necessary to give Miss Y an opportunity to present her case in person.
• in the event the Council decides it is necessary to provide taxi (or other) transport to Mr Y based on the current circumstances, it should pay £300 to the complainants. This is to remedy the effects of the Council not properly taking its decision in October 2020 and the subsequent distress caused by Mr Y taking unnecessary bus journeys.
• backdate Mr Y’s transport entitlement to his college start date in September 2020. The Council should contact Miss Y for details of expenditure incurred until the Council awarded Mr Y’s free pass. Due to the passage of time, the Council should not expect Miss Y to have proof of expenditure.

2. In addition, the Council should, within eight weeks of my decision:
• provide evidence to show it has reviewed the wording in section 3.2 of its ‘SEND 16-19 Transport Assistance Policy’ to ensure consistency with section 6.1 and to comply with the requirements of the legislation and statutory government guidance.

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Final decision

45. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The agreed actions listed above are an appropriate remedy for the injustice experienced.

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Investigator's decision on behalf of the Ombudsman