Summary: Ms X complained about the outcome of her post-16 transport appeal. She said the panel failed to properly consider the evidence she provided. We found fault with the Council. The Council agreed actions to remedy the injustice to Ms X.

The complaint

1. Ms X complained about the way the Council considered her post-16 transport appeal. She says it failed to properly consider all the information she provided in reaching its decision.
2. Ms X said this has left her without adequate transport or funding for her son, Y. She said it caused her and Y distress and financial hardship.

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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 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)
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 Ms X and considered the information she provided with her complaint. I made enquiries with the Council and considered its response with relevant law and guidance.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. 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.
9. They have discretion to set their own arrangements but they must have regard to various factors.
10. 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.
11. 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.

Statutory guidance

12. 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.
13. 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

14. 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.

15. 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.
16. If the parent remains dissatisfied, they have 20 working days to request escalation to stage two. 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 five working days setting out:

• the nature of the decision reached;
• how the review was conducted (including the standard followed);
• information about other departments and/ or agencies that were consulted as part of the process;
• what factors were considered;
• the rationale for the decision reached; and
• information about the parents right to put the matter to the Ombudsman.

17. 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 travel policy statement

18. The Council’s statement says pupils with and EHCP who received travel arrangements to school up to year 11 may be entitled to support with travel arrangements to sixth form/college. Provided that they attend the nearest suitable educational placement able to meet the young person’s needs and choice of course.
19. The Council says it will decide what type of arrangements will be offered. This decision will be based on the identified needs of the individual learner and will take account of the Council’s duties to make best use of its resources.
20. The Council has a two-stage appeal process:

• Stage 1: Review by Head of Service
• Stage 2: Independent Panel – Independent Review of Evidence

What happened

21. Y has an EHCP. Ms X has a chronic health condition and other children with health issues and disabilities. They are a low-income family.
22. Y was assessed as being unable to travel independently on public transport.
23. In August 2021 Ms X applied for transport assistance for Y. The Council awarded a personal travel budget (PTB) of £7 per day (44p per mile). Ms X appealed the decision.
24. The Council responded in November 2021. It told Ms X it reviewed the decision and considered the information she provided. It upheld the decision to award a personal budget of 44p per mile.
25. Ms X asked for her appeal to be considered at stage two of the Councils appeal process. She provided a written statement for the panel to consider. She said:

• The 44p allowance did not cover the cost of Y’s transport to/ from school each day.
• The only suitable means of transport for Y was private car (taxi).
• Y’s medical needs meant he cannot use public transport.
• She has her own medical needs and is a single parent. She is unable to transport Y because it is detrimental to her health.
• Y has siblings with medical needs who she is also caring for.
• They are a low-income family and paying for Y’s taxi is beyond the limits of her financial situation.
• The Council discriminated against Y because his peers, who are not affected by disability, do not experience the same challenges accessing their education.

26. The Council provided its stage two panel response in January 2022. It told Ms X:

• The Panel’s decided to uphold the original decision of the School and College Transport Team. It said it considered all points raised and Y’s individual circumstances and the offer of a mileage reimbursement or personal travel budget was a reasonable offer to support Y’s attendance at College A.
• It was confident that the Council’s policy for travel arrangements had been applied correctly when considering Y’s application and throughout all stages of the appeal process.

27. Ms X remained unhappy with the Council’s decision. She complained to the Ombudsman. Ms X says the Council should not expect her to transport Y to school each day because of her other caring responsibilities and the impact on her health because of her medical condition.

My findings

28. There is no dispute that Y qualifies for, and is entitled to travel assistance, from home to the post-16 school named in his EHCP. However, Ms X was unhappy with the Council’s decision to award Y a PTB that did not cover the cost of home to school transport in a taxi.
29. I found fault with the Council. It failed to offer Ms X the opportunity to present her evidence to the stage two panel in person.
30. 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.
31. In response to my enquiries the Council said:

“The Council do not have a policy on parents attending stage 2 appeals. In light of this complaint, we will review the procedures for stage 2 appeals and the inclusion of parents/carers”.

32. I also found fault with the way the Council considered and recorded its decisions at stage one and two of the appeal process.
33. We expect councils to consider the individual circumstances of each case and not blindly apply blanket policies or make assumptions. Councils must decide what transport arrangements are necessary (not exceptional) and make arrangements they consider necessary for all post-16 learners.
34. The Act and the statutory guidance list several factors which councils must consider when deciding what arrangements are necessary. These include the needs of those who could not attend if no arrangements are made, cost, and SEND. We expect to see evidence councils have considered all these factors ‘in good faith’ and can give reasons for their decisions.
35. The Council said in its response to both Ms X and my investigation that it considered Y’s, Ms X’s and the family circumstances. It also said it considered the information Ms X provided with her appeals. But it failed to provide evidence to support this. For example, I asked for the minutes or notes from the stage two panel meeting but it did not provide any. This would have enabled me to understand how the Council reached its decision and considered the issues Ms X raised in her appeal.
36. I do not understand how the Council reached its decision that the personal budget was what was ‘necessary’ for Y. Ms X provided her evidence as to why it was not and the Council failed to evidence how it decided otherwise.
37. In response to my enquiries the Council said:

‘…the contractors appointed to the contract did not have capacity to provide a service to Y. The PTB was offered to allow the family to make their own arrangements with a taxi company as the Council are restricted to the operators approved on the contractual framework agreement’

38. I found fault with the Council for failing to pay Ms X a sufficient PTB to cover the cost of Y’s taxi to/ from college. The Council decided a taxi was ‘necessary’ for Y to attend college. It was unable to provide a taxi through its contracted service. It awarded a PTB for Ms X to arrange the taxi herself. However, it awarded a PTB that did not cover the cost. This not only caused Ms X financial difficulties it also placed unnecessary pressure on her. It caused her distress and she experienced additional time and trouble bringing her complaint to us.

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Agreed action

39. Within one month of my final decision the Council agrees to:

• Apologise to Ms X.
• Pay Ms X £500 in recognition of the distress, time and trouble it caused her.
• Pay Ms X a PTB that covers the cost of transporting Y to/from college in a taxi. The PTB should be backdated to 22 September 2021.

40. Within three months of my final decision the Council agrees to:

• Review its post-16 travel statement policy to ensure its appeal process is in line with statutory guidance and allows parents to make verbal representations to the appeal panel.
• Review the format of its appeal decision letters to ensure it includes the information set out in (16).
• Review how it records the stage two panel meetings to ensure there is a record of the panel consideration and decision making.
• Review how it decides the amount of PTB to award where the parent/ carer arranges a taxi service.

41. The Council should provide evidence it has completed the above actions within the agreed timescales.

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Final decision

42. I found fault with the Council causing injustice. I completed my investigation.

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Investigator's decision on behalf of the Ombudsman