Summary: Mrs X complained about the outcome of her post-16 home to school appeal for her son, F. The panel failed to properly consider the evidence Mrs X provided and failed to give her the opportunity to make verbal representations which is not in line with statutory guidance. The Council agreed to offer Mrs X a fresh appeal and review its post-16 home to school transport policy.

The complaint

1. Mrs X complains about the Council’s decision to refuse post-16 home to college transport for her son, F. Mrs X said the Council’s appeal panel failed to properly consider all of the relevant evidence in making its decision.
2. Mrs X said F remains without adequate home to school transport which is affecting F’s ability to attend college at the required times. Mrs X said it is causing F, Mrs X and the wider family distress and time and trouble

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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. 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)
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.

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How I considered this complaint

6. I spoke to Mrs X about her complaint and considered information she provided.
7. I considered information from the Council including:
• Its Special Educational Needs home to school/college transport policy
• Records and notes of the stage 2 appeal panel
8. I considered government issued statutory guidance titled ‘post-16 transport and travel support to education and training’ for local authorities.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

10. Councils have a duty to publish a transport policy statement for post 16 transport setting out their transport arrangements and the financial help available for learners of sixth form age (16-18 or after 18 if they started the course before their 19th birthday). It must specifically address the arrangements for young people with learning disabilities.
11. They have discretion to set their own arrangements but they must have regard to various factors including:
• the needs of those who could not access education or training if no arrangements were made;
• the need for young people to have reasonable opportunities to choose between courses;
• the distance and journey time of the place of learning from the home;
• the costs to the establishment; and
• preferences based on religion
12. Councils may ask parents for a contribution to transport costs, but should exercise discretion in doing so and have arrangements to support low income families.
13. The duty relates to young people of sixth form age with learning difficulties and/or disabilities aged up to 19. It may go beyond the age of 19 if the student is continuing on a course started before that age. The transport policy statement must include transport arrangements for this group of students.
14. A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
15. The transport needs of young people with special educational needs and disabilities must be reassessed when the young person moves from compulsory schooling to post-16 education, even if they remain at the same educational setting.

Statutory guidance

Post-16 guidance

16. Government statutory guidance titled ‘post-16 transport and travel support to education and training’ for local authorities sets out a council’s duty and responsibility regarding the provision of transport to post-16 education and training.
17. The guidance states councils must publish a complaints or appeals procedure as part of its transport policy. The guidance says it is good practice to use a similar two-stage complaint process as for pre 16 appeals.

Pre-16 complaints and appeal guidance

18. The Government recommends councils have a two-stage appeals process for parents who wish to challenge a decision about their child's eligibility for travel support:
• Stage one: Review by a senior officer.
• Stage two: Review by an independent appeal panel.
19. Government guidance says a parent has 20 working days to ask the Council to review its home to school transport decision. Within 20 working days of the parent’s written request, a senior officer should review the decision and write to the parent with the outcome of the review. This letter should include how the officer has reached their decision and the factors considered.
20. If the parent remains dissatisfied, they have 20 working days to request escalation to stage 2. Within 40 working days of receipt of the parent’s request the panel should meet and consider both written and verbal representations from the parent(s) and the Council. The panel should notify the parent of the outcome of their review within 5 working days.
21. The government recommends councils follow this appeal process, but they do not have to. However, as this process is set out within statutory guidance, we expect councils to follow it, unless there was good reason to depart from it.

The Council’s post-16 home to school/college transport policy

22. The Council’s policy says it will assess whether to give travel assistance on an individual basis. It provides assistance in a number of ways including bus, taxi, public transport, a Personal Transport Budget (PTB) or travel passes.
23. The policy says transport assistance for 16–19-year-olds will by default be provided by PTB, not via taxis or other transport. A PTB is a lump sum payment, usually paid monthly, which helps the child or young person get to school. The Policy says it will consider requests for traditional transport methods on a case-by-case basis.
24. The policy says transport such as a taxi or Council minibus for transport remains at the discretion of the Council, taking into consideration the individual circumstances and the needs of the child.

The Council appeal process

25. The Council says applicants can make a formal appeal if they disagree with the offer of a PTB if the child is post-16. The Council’s policy outlines the same appeal process as that outlined in the statutory guidance above in paragraphs 16-19. However, it has a variation where it considers reviews of PTBs. The appeal process against the offer of a PTB is:
• Stage 1 – allows parents to detail the reasons why they feel the PTB is not appropriate to meet the needs of their child. A reviewing officer will provide a written response.
• Stage 2 – If the parent disagrees with the outcome at stage one, they can make a further written submission for consideration. Stage 2 consists of an independent panel who will consider written submissions from the family and reviewing officer.

What happened

26. Mrs X has a son, F who has autism and other learning difficulties. F has an Education, Health and Care (EHC) Plan which named his post 16 placement (the school) for the 2021/22 academic year.
27. Mrs X applied for post-16 home to school transport for F to begin in August 2021. Mrs X explained on the application that F had limited mobility and currently has a taxi service for home to school transport which she and F would like to continue.
28. The Council wrote back to Mrs X and said F was eligible for transport assistance and offered him a PTB for the academic year. The letter informed Mrs X of her right of appeal if she believed a PTB was unsuitable for F.
29. Mrs X appealed the decision to award F a PTB. Mrs X said she wanted F’s current taxi arrangement to continue. Mrs X said F would not be able to use transport on his own due to his complex needs. Mrs X said she could not transport F due to her own medical needs and her husband, Mr Y, worked full time and could not help either.
30. The Council considered Mrs F’s appeal at stage 1. The reviewing officer’s notes show they concluded there was not enough information about why Mrs X and Mr Y could not take F to school. The reviewing officer said they needed more information on Mrs X’s medical issues and why they meant she could not take F to school. The reviewing officer decided they were satisfied a PTB was suitable for F taking into consideration the information available.
31. Mrs X was unhappy with the outcome of stage 1 and asked the Council to escalate it to stage 2. In her stage 2 appeal application Mrs X outlined her medical conditions and the medication she took daily. Mrs X said the medication meant she was drowsy in the mornings so could not safely drive F to school herself. Mrs X said she took other medication which prevented her from leaving the house until after 9am which meant she could not accompany F on public transport. Mrs X reiterated her wish for F to have taxi transport and said he could not use public transport due to his autism and social skills. Mrs X said Mr Y’s working hours prevented him from transporting F.
32. The stage 2 panel met and considered Mrs X’s appeal. Prior to the panel meeting the Council wrote to Mrs X and asked her to keep her telephone near her in case the panel had any questions. The stage 2 panel notes show the panel considered Mrs X could escort F in a taxi in the mornings and then she could drive to pick him up later in the day. The panel decided Mr Y may have flexible working and therefore he could take the child to school. The panel refused Mrs X’s appeal and decided a PTB was appropriate.
33. Mrs X remained unhappy with the outcome and complained to us.

My findings

34. There is no dispute that F qualifies for and is entitled to travel assistance from home to the post-16 school named in his EHC Plan. Mrs X however was unhappy with the decision to award F a PTB rather than home to school transport in a taxi.
35. The panel concluded Mrs X could accompany F to school in the morning using public transport. However, in her stage 2 appeal Mrs X told the Council she could not transport F to school in the morning because she could not leave the house due to medication she takes. There is no evidence in the panel notes or deliberations showing the panel considered this or what weight it gave to it in making its decision. That is fault and has caused Mrs X frustration and uncertainty.
36. The panel also concluded Mr Y’s job may allow him flexibility to take F to and from school, however, the panel did not check this information with Mr Y. The Council wrote to Mrs X prior to the stage 2 appeal and asked her and Mr Y to remain near a telephone in case the panel had any questions. Therefore, there was no reason why the panel could not have clarified Mr Y’s working hours with him at the time. All of this amounts to fault and caused Mrs X and Mr Y frustration and uncertainty.
37. Post-16 home to school statutory guidance recommends councils follow the appeal process as set out in the pre-16 statutory guidance. The Council’s post-16 appeal process does not allow or give appellants the opportunity to make verbal representations. We expect councils to follow the relevant statutory guidance unless there is a good reason to depart from it. The Council failed to give Mrs X or Mr Y the opportunity to make verbal representations which is not in line with statutory guidance. It is especially relevant in this case because had Mrs X and Mr Y had the opportunity to make verbal representations or comments it is likely the Council would have made a more informed and robust decision about F’s home to school transport.
38. The Ombudsman is not an appeal body. We cannot criticise the merits of a council’s decision unless there was fault in the way it was made. In this case, we cannot substitute our view for that of the Council’s. Neither can we direct the Council to award F home to school taxi transport. However, there was fault in the stage 2 panel process. The Council should therefore offer Mrs X a fresh stage 2 appeal.

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Agreed action

39. Within one month of the final decision agreed to:
• write to Mrs X and apologise for the uncertainty and frustration caused when the home to school transport stage 2 appeal panel both failed to demonstrate it had properly considered Mrs X’s medical evidence and Mr Y’s working arrangements in making its decision and failed to allow them the opportunity to make verbal representations.
• offer Mrs X a fresh post-16 home to school transport stage 2 appeal with a new panel. The Council will ensure Mrs X and Mr Y are allowed the opportunity to give verbal representations.
• review its post-16 home to school transport policy to ensure its appeal process is in line with statutory guidance and allows parents to make verbal representations to the appeal panel.

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Final decision

40. I completed my investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman