Summary: Mrs X complained the Council failed to properly consider her application for travel assistance for her son, C. Mrs X says that without the travel assistance, C is unable to receive the bespoke educational package in his Education, Health and Care Plan. There is fault in how the Council considered the application and the Council has agreed to reconsider the application and make a payment to remedy the injustice caused to Mrs X and C.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains the Council withdrew transport assistance for her son, C, without considering; his needs as identified in his education, his health and care (EHC) plan, the 12 providers per week he has to attend to receive provision, the distance, the isolated locations of the venues and the lack of public transport to these venues.
2. Mrs X also complains the transport assistance was withdrawn suddenly by the Council part way through the school year with no notice. This caused the family distress and uncertainty.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I considered Mrs X’s complaint and the information she has provided.
7. I considered the information I received from the Council.
8. Mrs X and the Council were given two opportunities to comment on a draft of this decision. I have considered the comments I received from the Council before making this final decision. Mrs X did not submit any comments in response to the draft decision.
9. 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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What I found

Education, Health and Care (EHC) Plan

10. Children with complex needs may require an Education, Health and Care (EHC) Plan. This is a legal document which sets out a description of a child's needs (what they can and cannot do). It says what needs to be done to meet those needs by education, health and social care. This can include support needed in school.
11. Councils are responsible for making sure all the arrangements set out in the EHC Plan are put in place.

Post-16 transport travel and support for people of sixth form age

12. The law on education transport is set out in the Education Act 1996 (the Act). The Government also issued statutory guidance (the Guidance) in January 2019 entitled ‘Post-16 transport and travel support to education and training’ which details a council’s duties to adult learners and pupils of sixth form age. The Act does not impose a duty for councils to arrange transport for pupils once they reach sixth form age. Councils have discretion to decide what transport arrangements are necessary to help young people access education.
13. Councils must publish a statement setting out the transport arrangements they consider necessary to help students of sixth form age to attend education or training. The statement must set out the arrangements the council proposes to make for young people with special educational needs (SEN) and disabilities
14. In considering what arrangements are necessary to make for sixth form pupils, the council must have regard to:
• the needs of those for whom it would not be reasonably practicable to attend an education establishment if no arrangements were made;
• the distances, and journey times, between the homes of people of sixth form age in their area and education establishments suitable to their needs.
• the transport needs for sixth form pupils with special educational needs or disability. There is no automatic entitlement to transport to an institution named in an EHC Plan.

The Council’s policy

15. The policy explains that when young people with SEN and disabilities reach 16 years of age, they do not automatically get free or subsidised transport in the way younger children are entitled to.
16. The Council does not offer help with travel for students with an EHC plan if they are able to travel on public transport when accompanied. If a person is unable to use public transport or make the journey to school or college even when accompanied due to their learning difficulty or disability, the Council may arrange suitable travel assistance to the nearest suitable learning provider, regardless of the distance.
17. The policy also says that students with a journey time over 75 minutes may be entitled to assistance. If the Council agrees to assist, it would generally be in the form of a payment of a mileage allowance per day.
18. The Council’s Post-16 transport statement states all young people carrying on their education post 16 must reapply for travel support.

What happened

19. The chronology that follows does not consist of every event that occurred during the period I investigated, nor does it cover all the information I considered during my investigation. It is a chronology of the events that I feel are relevant to the investigation.
20. C has SEN and an EHC plan maintained by the Council. Education Otherwise Than At School (EOTAS) is named in C’s EHC plan and this consists of a bespoke package of provision. The provision is delivered at 12 different venues over the course of one week.
21. From March 2018, Mrs X was in receipt of a Personal Travel Budget (PTB) from the Council. This allowance enabled Mrs X the flexibility to organise C’s transport from home to school in a way that suits their personal circumstances. Mrs X was initially in receipt of a PTB of £229.90 per month and in September 2020 this increased to £250.80 per month.
22. In April 2021, C turned 16 years of age. In June 2021, Mrs X applied for Post-16 travel assistance from the Council for C.
23. In July 2021, the Council decided that from September 2021, C would no longer be eligible for travel assistance under the post-16 transport policy. The Council advised Mrs X she could request a review of this decision if she was unhappy with it. Mrs X says she contacted the SEN team regarding her concerns about the ineligibility for transport assistance. Mrs X did not submit a request for the decision to be reviewed.
24. In August 2021, C was awarded a Personal Independence Payment (PIP) from the Department for Work & Pensions (DWP). From 22 September 2021 it paid C £89.60 a week for his daily living needs and £62.55 a week for help with his mobility needs.
25. In September 2021 the Council paid Mrs X a PTB payment of £250.80. It paid Mrs X again in October 2021. Mrs X says that she was under the impression the PTB had been reinstated after her contact with the SEN team.
26. In November 2021, the Council sent Mrs X an invoice for £501.60 and requested payment within 28 days to avoid the need for further recovery action. The Council said it had made two payments of PTB to her in error in September 2021 and October 2021. The Council apologised for the error.
27. On 18 November 2021, Mrs X complained to the Council. The reason for her complaint was that the Council had not followed a decision made by the Ombudsman on a case concerning post-16 transport assistance for another child in the area. Mrs X said this negatively affected C as without post-16 transport, he will be unable to access the provision in his EHC plan.
28. Mrs X added further information to her complaint about the Council’s failure to properly consider the distance and locations of the providers of C’s bespoke education package. She also complained about the Council stopping the PTB payments part way through the term and the difficulties this had caused.
29. The Council responded to Mrs X’s complaint at stage 1 in January 2022. It advised her it was acting upon the Ombudsman’s recommendations and communicating directly with the affected families. The Council confirmed it made the PTB payments in September 2021 and October 2021 in error and it apologised for the confusion it may have caused in relation to C’s eligibility. The Council did not uphold Mrs X’s complaints.
30. Mrs X requested the Council review her complaint at stage 2 of the complaints process because the outcome she wanted was for the Council to implement the Ombudsman’s recommendations for all post-16 transport cases.
31. The Council said it was unable to share information with her about a case she was not a party to. It said a stage 2 review would not provide Mrs X with any further information and so it refused to escalate her complaint. Mrs X then brought her complaint to the Ombudsman.

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Analysis

32. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question, or give an opinion on whether the decision was right or wrong, regardless of how much a complainant disagrees with the decision.
33. In her complaint to the Council and the Ombudsman, Mrs X has referenced a previous decision from the Ombudsman with regards to travel assistance for another child in the same council area. Mrs X has requested the Council remedy her complaint with the same outcome as that case. The facts may be similar to those in C’s case but each case is decided on its own merits. The Council and the Ombudsman are unable to share the full details of the case with Mrs X due to reasons relating to privacy and anonymity. A decision in one case is not necessarily the right decision in another case simply because there are some similarities. The individual circumstances in each case often differ.

The Council’s consideration of Mrs X’s application for post-16 transport assistance

34. There is no legal obligation for a council to provide post-16 home to college transport. The decision is a discretionary one, however, a council must consider individual circumstances as outlined in the statutory guidance. 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 (as is the case with C).
35. The statutory guidance states there is no entitlement to transport to and from the named provider in a young person’s EHC plan and transport should only be named in an EHC plan in exceptional circumstances. Y’s EHC plan does not specify transport to and from the educational settings he attends.
36. Case law regarding young people of sixth form age recognises that the statutory transport regime for young people with SEND changes at post 16 and they cease at that age to automatically get the transport younger children get.
37. In R (on the application of S) v Education Ltd (Waltham Forest) and another [2006] EWHC 3144, the Judge said this meant 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. What parents can be expected to do will depend on their circumstances. There will be cases where it is not reasonable to expect them to drive a child to school. Each case will turn on its facts.” The Judge also recognised that while cost was a legitimate consideration there would be some situations where there was no reasonable alternative to provision of expensive transport by a council.
38. The Council appears to have based its decision to refuse travel assistance for C on whether he is in receipt of any disability related benefits that can be used to fund transport. I understand the Council used to pay the equivalent of approximately £62.50 per week for transport and since C turned 16 (and the travel payment stopped), he began receiving a PIP payment of £62.55 per week to help him with his mobility needs. However, I cannot see any reference in the Council’s policy, or the statutory guidance, that the receipt of disability benefits is a reason or criteria to refuse travel assistance.
39. The Council’s policy says it will offer travel support if a student “…is unable to walk or use public transport (even when accompanied) due to their learning difficulty or disability” and they are attending a school named in the Education, Health and Care Plan, “regardless of the distance to travel”. It does not list any other considerations for 16-18 year olds. Therefore, the Council’s decision making did not follow its policy and this is fault.
40. In its response to my enquiries, the Council has said that C is in receipt of a personal budget and Mrs X effectively took responsibility for the varying provision and areas of placement arranged for C. This may be the case, but it does not absolve the Council of its responsibility to ensure the provision in C’s EHC plan is being delivered to him.
41. In considering what arrangements are necessary to make for sixth form pupils, the statutory guidance states the council must have regard to the distances, and journey times, between the homes of people of sixth form age in their area and education establishments suitable to their needs (see paragraph 14 above). I have not seen any evidence the Council did this when considering C’s application. We expect councils to have good reason to depart from statutory guidance. Therefore, in the absence of such a reason, the Council not having regard to statutory guidance is fault.

The Council’s error in making two PTB payments to Mrs X

42. The Council’s error in making two PTB payments to Mrs X in September 2021 and October 2021 was fault. This error raised Mrs X’s expectations that C’s PTB had been reinstated. It is inevitable that Mrs X would have experienced some distress on receiving the invoice in November 2021. I also understand this caused Mrs X financial hardship.

Complaint handling

43. The Council’s complaints policy states it will respond to complaints within 20 working days but it took over 30 working days to send its stage 1 response to Mrs X. This is fault.
44. Another concern I have with the Council’s stage 1 response is that it did not address Mrs X’s complaint that transport was refused without proper consideration of distances or locations of the bespoke EHC plan package for C. I agree with the Council’s view that the appropriate channel for any concerns following a decision on post-16 travel assistance is to request a review. The Council did offer Mrs X the opportunity to request a review of the decision but she failed to submit a request. However, the Council should have addressed this point of complaint in its response.
45. I acknowledge Mrs X did not request a review of the decision but the fault with the initial decision remains and my view is the Council should remake this decision in line with the statutory guidance and its post-16 travel assistance/school transport policies.

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Agreed action

46. The faults identified above have resulted in uncertainty about whether the decision would have been different had the Council considered Mrs X’s application for travel assistance in line with its policies and the statutory guidance.
47. Mrs X also suffered injustice when her expectations were raised by the Council continuing to pay her a PTB for C in September 2021 and October 2021. It is inevitable that Mrs X would have experienced some distress on receiving the invoice in November 2021 requesting the sum of £501.60 to be repaid in 28 days to avoid the need for recovery action.
48. To remedy the injustice, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Mrs X and C for the faults identified above;
• Pay Mrs X £150 to acknowledge the uncertainty and distress caused to C and his family by the flawed decision-making process and the Council’s errors; and
• Reconsider Mrs X’s application having regards to the issues identified as fault and offer her the opportunity to request a review of the decision it makes.
49. If the Council decides C is eligible for help with transport, it has agreed to backdate eligibility to 1 November 2021. The Council can deduct the costs the family would have incurred as part of their contribution to the transport costs, as set out in its post-16 transport statement.

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Final decision

50. There is fault by the Council, and this caused injustice to Mrs X and C. The Council has agreed to the recommendations to remedy this injustice. I have completed my investigation and this complaint is now closed.

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Investigator's decision on behalf of the Ombudsman