Summary: Mrs B complained that the Council did not properly consider her reheard appeal for transport assistance for her daughter, Y, to attend college. We found fault in the way the Council considered her reheard appeal. The Council agreed to apologise, pay Mrs B £100 for her frustration, and rehear her appeal. It will also carry out a lessons-learned exercise and allow parents who unsuccessfully appealed for sixth-form age transport for the 2021/22 school year a reassessment of their cases with the chance to make verbal representations to the panel.

The complaint

1. Mrs B complains that, after the Ombudsman found fault in the way the original School Transport Appeal Panel considered her appeal for transport assistance for her daughter, Y, the new panel failed to properly consider her reheard appeal. As a result, she continues to have to pay for a taxi which she cannot afford for her daughter, who has special educational needs and cannot travel independently.

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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 an organisation’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)
4. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

5. I have considered Mrs B’s written complaint and supporting papers, her previous complaint to the Ombudsman, and discussed her complaint with her. I have made enquiries of the Council and considered its response. I have had regard to the Post-16 transport and travel support to education and training statutory guidance, the Council’s policies and the Ombudsman’s Focus Report - All on board? Navigating school transport issues. I have also sent Mrs B and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Special Educational Needs

6. A child with special educational needs (SEN) may have an Education, Health and Care plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them.

School transport for young people of sixth form age

7. 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)
8. The overall intention of the sixth form age transport duty is to ensure that:
• learners of sixth form age are able to access the education and training of their choice; and
• if support for access is requested, this is assessed and provided where necessary.
9. The duty relates to young people of sixth form age with special educational needs and 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.
10. Councils have discretion to set their own arrangements, but they must have regard to various factors including:
• the needs of those for whom it would not be reasonably practicable to access education or training if no arrangements were made; and
• the distance and journey time of the place of learning from the home.
11. The statutory guidance say that councils must exercise their power to provide transport or financial support “reasonably, taking into account all relevant matters”.
12. Councils may ask parents for a contribution to transport costs but should ensure that any contribution is affordable and have arrangements to support low-income families. The statutory guidance says it is good practice not to charge for transport for a young person assessed under the sixth form age duty if it is likely they will be eligible for free transport under the adult transport duty.
13. Local authorities must publish a complaints or appeals procedure as part of the transport policy statement. The statutory guidance says good practice suggests using a similar two-stage complaint process as for pre-16 appeals.

The Council’s Post-16 Transport Policy

14. Eligibility criteria - Under the Council’s policy, students must usually meet the Council’s “Gateway” criteria: live in East Sussex; have a current EHCP; be in full-time education; attend the nearest suitable college; and be unable to travel independently.
15. If a student meets these criteria the Council will take further factors into account, including: the nature of the journey; the student’s age; whether the family or broader network is reasonably able to transport or accompany the student; the availability of a suitable vehicle/or disability benefits; the student’s travel-related needs; the family’s financial circumstances; and any other relevant factors.
16. Where the Council agrees assistance, it requires a contribution towards to the cost of travel. The charge for 2021/2022 is £684 per academic year, or £342 for low-income families.
17. Appeals process – The Council changed its school transport appeal process in response to another Ombudsman decision (19 014 659), where we found its policy flawed in not allowing people who would otherwise be disadvantaged to make verbal representations.
18. The Council sought legal advice. It does not consider that the statutory guidance requires that all appellants should be able to attend the panel hearing; rather it recommends that the panel considers both written and verbal representations and says that the specifics of that process will be for local authorities to decide.
19. The Council’s stage 2 appeal form now invites appellants to indicate if they wish to make verbal representations. Appellants can provide their reasons for being disadvantaged, and the Council will decide whether to allow this on a case-by-case basis. If agreed, “…the verbal representation will be made via a telephone call or video call for a fixed duration at the start of the Appeal Panel hearing”.
20. The Council’s policy also explains that “The Appeal Panel may have questions during a hearing and in that situation, they may ask for the supporting officer to seek clarification by making a telephone call to the parent/carer”.

What happened

21. In June 2020, Mrs B applied for school transport assistance for Y to attend sixth-form college. Y has special educational needs and has an EHCP. She attends a sixth-form at a college named in her EHCP. Mrs B said that Y could not travel alone. Mrs B does not drive and takes her younger daughter, Z, to primary school so she could not also take Y. She said Z also struggles with going to school.
22. 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.
23. Mrs B appealed the decision. She said Z was too young to walk to school alone. She also needed a structured handover to teachers due to her own difficulties with schooling. Mrs B provided supporting letters from Z’s school and her GP.
24. 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.
25. Mrs B complained to the Ombudsman. She said the only way the family could get Y to and from school was by paying for a taxi. However, they could not afford this, and Y had missed some schooling as a result. The Ombudsman’s decision (20 005 617) found fault in that the panel:
• assumed that Z attending breakfast club was a viable solution to free up Mrs B, despite Z needing a structured handover;
• assumed that siblings could accompany Y, without having sufficient information to make that assumption;
• did not consider whether Mrs B could accompany both Y and Z on the return journey in the afternoon; or
• did not comment on Mrs B’s point that Z was too young to walk home alone.
26. The Council agreed to arrange for a fresh appeal panel to reconsider the case, taking into account any further information Mrs B provided.
27. Mrs B emailed the Council with further comments, explaining that:
• her younger daughter, Z, had been referred to the local hospital’s Child Development Clinic, is still unable to go to school independently and needs a structured handover to her teacher;
• Y has autism, speech and language disorder, learning disabilities, suffers with anxiety, panic attacks and headaches which cause dizziness; and
• Y is attending the closest college to the family’s home, cannot travel independently and, as mentioned in her EHCP, has missed a significant amount of college due to travel issues.
28. The panel took into consideration the papers relating to the first appeal, Mrs B’s complaint to the Ombudsman, the Ombudsman’s findings, Y’s latest EHCP and the additional information that Mrs B had provided by email.
29. The panel decided it was not necessary to award transport assistance of any type. It explained that:
• it had considered how both Y and Z would get to and from college/school;
• there is a general expectation that a parent or will accompany a child where necessary unless there is a good reason why it is reasonable not to do so;
• it noted that there are two parents in the household, with Mr B working - it did not consider Mr B’s employment a good reason for Mr and Mrs B not to be able to make arrangements to accompany Y to/from college as this is something all working parents have to resolve;
• it considered it was reasonable for Mr B to adjust his work arrangements as necessary to be able to support Mrs B to accompany Y - it felt that this might reasonably be by Mr B taking Z to/from school; and
• it also noted that Z was not attending her nearest suitable school, which was 0.26 miles from the family home.
30. The panel then considered whether to exercise discretion to contribute to the costs of Y’s transport on the basis of financial circumstances.
31. The panel noted that the family had not filled in the financial statement section of the appeal form. It noted Mrs B’s comments that Y had missed out on attending college due to the cost of transport. However, Y’s recorded college attendance stood at 94.4%. It could not conclude that Y has missed a significant amount of college, although it accepted that the attendance figure did not differentiate between online learning during COVID-19 restrictions, and face-to-face teaching at college. The panel therefore decided that there was no basis to exercise its discretion.

My assessment

Information available to the panel

32. The Council’s then policy stated that, “The following evidence may be required… Evidence from the parent/carer’s employer regarding their work commitments, to include working hours, days, times, location of work and distance in miles from home to work and from the placement to work.”
33. The Council has explained that it recently updated its policy to clarify how it assesses applications - “In considering the eligibility of the student to receive an offer and what offer should be made, the officer will consider the following and/or any other relevant factors… Parents/carers will be expected to prioritise transporting the student over other commitments such as… undertaking work commitments that can reasonably be carried out at times other than at college start and end times unless doing so is unreasonable in all the circumstances”.
34. In deciding that it was reasonable for Mr B to assist with getting Z to/from her school, the panel did not seek any further information about Mr B’s working arrangements and whether his employer would allow such a change. In this regard, the Council says “[it] is not obliged to seek additional information or clarification from appellants; unless it considers it cannot reasonably make a decision on the information before it”. I have therefore considered below whether the panel had enough information to make its decision.

Threshold for providing transport

35. In the panel’s decision letter and the minutes, it has stated that “The panel did not consider that Mr B’s employment was a good reason for Mr and Mrs B not to be able to make arrangements to accompany Y to/from college as this is something all working parents have to resolve.”
36. The question of whether parents are able take their sixth-form aged children to school was a legitimate consideration for the panel. However, I consider that by saying that “this is something that all parents have to resolve” the panel is setting too high a threshold. Rather, the panel’s task was to consider whether the parents in this case, taking account of their individual circumstances, were reasonably able to accompany their children to their respective places of learning.

Availability of parents to assist in transporting children

37. The Council has confirmed in its complaint response that it, “accepted that Mrs [B] did not have any availability to take Y to college if she was also having to take [Y]’s younger sister to [her school]”.
38. Mrs B’s application explained that her husband is employed full-time at a school from 8.00am to 5.00pm and is not available to help with transport.
39. However, the panel decided, with no further information, that it was not necessary to award transport assistance because it would be reasonable for Mr B to adjust his working arrangements to take Y’s younger sister, Z, to school.
40. Mr B’s workplace is around 8 miles from home by car, and around 7.5 miles from Y’s school. Given this, for Mr B to take Z to and from school (while Mrs B accompanied Y to college) he would need to stay with Z until school started in order to make a structured handover to Z’s teacher. He would then arrive at his workplace at earliest between 9.00am and 9.30am. To pick up Z from school would involve a round trip of between 30 minutes and one hour during the afternoon. This might also be prolonged if Mrs B was picking Y up from her college, as Mr B would not be able to leave his daughter alone at home.
41. It is not for the Ombudsman to question the merits of a decision properly reached. However, I do not consider that the panel could properly reach a view on whether Mr B would be able to change his working arrangements without checking with either Mr and Mrs B, or with Mr B’s employer.
42. Given Mr B’s place of employment and need to be there during the school’s operating hours, it appears likely it would not be feasible for Mr B to take Z to school and pick her up. As there had already been one previous flawed appeal, it was even more important the panel conducted itself appropriately and did not make assumptions. However, the panel made assumptions about Mr B's workplace without evidence. That was fault.

Relevance of walking distance

43. The panel also noted that Y’s sister Z did not attend her nearest school, which was around 0.3 miles from the family home, but instead a school of parental preference 0.7 miles from the home.
44. There was no explanation of the relevance of this point in the panel’s decision letter or in the minutes of the hearing. However, the Council has provided further comments to the Ombudsman on the relevance of this point. It has explained that, had Z attended her nearest school, it might have been possible for her to make her own way to school, or it might have been easier to seek the support of other families to accompany her to school. In support of this, the Council has cited another Ombudsman case (20 005 679) in which we found no fault where the Council felt that a child of similar age could walk unaccompanied or with the support of another family.
45. While noting the Council’s comments, there seems to me a significant difference between the cases. In the above case, the child had no special needs or issues with attending school. However, in Z’s case, the school has already explained that “we offer [Z] a supported start to school that involves a very careful handover from Mum to us. Without Mum being there, it is highly likely that [Z] could become a school refuser”. Furthermore, given the need for a supported start involving a careful handover from a parent, it does not seem reasonable to assume that a non-family member could carry out this role.
46. The Council has also explained that it “fully accepts that parents can choose where to send their children to school, how to get them there is something that all parents have to factor into their decision making when settling on a school”.
47. However, when Mr and Mrs B decided where to send Z to primary school, several years earlier, they could not have anticipated that this might affect their elder daughter Y’s eligibility for transport to the college that the Council later named in her EHCP, or the difficulties Z has with handovers. As a result, the panel should not have attached significant weight to these factors in reaching its decision.

Appeal process

48. The Ombudsman criticised the Council in the earlier decision (19 014 659) for not allowing complainants the opportunity to make verbal representations.
49. At the time of Y’s appeal, the Council was revising its policy and preparing the changes set out in paragraphs 18 and 19 above. It has explained that, had the panel’s supporting officer had any indication of disadvantage, or had any been apparent from the additional information provided, or had the parents requested to speak to the panel, the supporting officer would have considered any request on a case-by-case basis.
50. However, the Council’s then policy made no reference to the possibility of making verbal representations and the Council did not advise Mrs B that she might ask to make verbal representations. This was fault as Mrs B did not know that she could make such a request.
51. I note the changes that the Council has now made to its policy. These do not automatically allow appellants to speak to the panel. As explained in the earlier decision, the Ombudsman cannot say the Council is at fault in adopting the current appeal process based on its legal advice.
52. However, we may consider whether the absence of verbal representations has contributed to fault in the way an individual appeal was considered. In this case, I consider that this:
• placed Mr and Mrs B in the position of having to anticipate what factors the panel might consider relevant to the appeal, such as Mr B’s arrangements with his employer, whether or not these were raised as part of the Council’s original refusal; and
• did not allow Mr and Mrs B any opportunity to question assumptions that the panel may have made or to provide clarification, as the panel failed to seek further information it did not have about Mr B’s employment.
53. I therefore consider that in this case not informing Mr or Mrs B that they might ask to make verbal representations has contributed to the fault in the way the panel considered the appeal.
54. It is not for the Ombudsman to question the lawfulness of the Council’s appeal process. However, not allowing all parents to address the panel increases the risk that, as in this case, panels may make decisions on appeals without having sufficient information and that appeals may not be properly heard.
55. That said, the Council has confirmed that, since it updated its policy so that parents can indicate whether they would like to make verbal representations to the Panel and to provide their reasons for requesting the same, no request to make verbal representations to the Panel has been declined.

Conclusion

56. I consider that for the above reasons there was fault in the way the panel considered the appeal.
57. Where there has been fault in the way a panel has considered an appeal, we generally seek a fresh appeal. However, Mrs B has already been through two appeal processes and therefore I will also recommend a symbolic financial payment for the unnecessary time and trouble of having to go through a third appeal. The Council should rehear the appeal again, after asking for information about Mr B’s employment, and give Mr and Mrs B the opportunity to make verbal representations to the panel.

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Agreed action

58. The Council has agreed to the Ombudsman’s recommendations that, within one month of the decision date on this complaint, it:
• apologise to Mrs B and pay £100 for the frustration of having to have another appeal due to fault in the second appeal hearing; and
• rehear the appeal again, asking for information from Mr B’s employer about his ability to change his working hours, and allowing Mr and Mrs B the opportunity to present verbally. If the panel decides to provide transport, the Council should also reimburse Mrs B for the costs she has incurred to date.

and, within three months of the decision date:

• carry out a lessons-learned exercise regarding what a panel should do when it does not have evidence to back it up its views about the flexibility of working parents, and how it should seek that evidence; and
• review appeal decisions issued for the school year September 2021 where the panel refused sixth-form age transport to identify any parents who missed the opportunity of making verbal representations and offer them the opportunity of a reassessment with the chance to speak to the panel. If the panel then agrees transport, a remedy should be offered for the missed provision.

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Final decision

59. I have closed my investigation on the basis that the above agreed actions represent a suitable remedy for the injustice caused to the family.

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Investigator's decision on behalf of the Ombudsman