Summary: Ms R complains on behalf of Miss P’s family about the transport offered by the Council for Miss P’s post-16 education. The Council did not consider relevant information about Miss P’s stepfather’s work commitments before deciding he should provide transport. The Appeal Panel’s decision is flawed because the Panel did not follow the Council’s published appeals process.

The complaint

1. Ms R complains on behalf of Miss P's family about the transport offered by the Council for Miss P's post-16 education. The Council offered to provide one journey per day by taxi and said Miss P’s stepfather could provide transport for the other journey. The Council subsequently agreed to pay £45 per day (the cost of one taxi journey), backdated to the start of the academic year, so the family could use their preferred taxi operator.
2. Ms R complains about the Council’s offer. She says Miss P’s stepfather was unable to take time out of work to provide transport.
3. Miss P’s family circumstances have changed since Ms R complained to the Ombudsman. I have considered the family’s circumstances at the time of the complaint.

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The Ombudsman’s role and powers

4. 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)
5. Once 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 have considered information provided by Ms R and the Council.
7. I invited Ms R and the Council to comment on my draft decision.

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What I found

8. Miss P has an Education, Health and Care (EHC) Plan maintained by the Council. She attends a special school approximately 15 miles from home. She started her post-16 education there in September 2021.
9. Miss P’s mother applied for transport in March 2021. The Council offered to provide one taxi per day, with the family responsible for the other journey. The Council said it had taken account of the family’s working arrangements and the needs of Miss P’s younger sibling.
10. Ms R appealed on behalf of the family. She said that only one parent drives, and work commitments mean the family is unable to provide any transport. Ms R said the family would not provide financial information as their appeal was based on their inability to make the necessary practical arrangements to provide transport.
11. The Council’s Transport Appeals Panel considered the appeal in July 2021. The Panel decided it was common for families to have to juggle work commitments and school transport and upheld the Council’s decision. The Panel decided not to offer financial support as the family had not completed a financial declaration.
12. Unhappy with the decision, Ms R contacted us. We advised her to make a formal complaint to the Council.
13. Ms R complained to the Council. She said she wanted to challenge the Council’s decision because:
• work commitments mean it is not always possible for a parent to collect Miss P from school;
• parents would not normally be expected to have to take a post-16 child to school, so expecting Miss P’s parents to provide transport because of her disability could be seen as disability discrimination;
• the parent the Council expects to provide transport does not, in fact, have parental responsibility for Miss P;
• since the Council agreed to provide one taxi journey per day, the family had learnt the Council would not use their preferred provider. Ms R explained why the family thought this unfair.
14. The Council responded to Ms R’s complaint and explained how it had considered Miss P’s transport application. It offered the family a further appeal.
15. The Council’s Transport Appeals Panel considered the second appeal in February 2022. The Panel noted the family’s circumstances had not changed significantly since their first appeal, and the arrangements proposed by the Council offered a reasonable degree of continuity in taxi provision. However, the Panel agreed the Council should offer a payment for half of Miss P’s travel costs so the family could use their preferred taxi operator.
16. Unhappy with the outcome, Ms R complained to the Ombudsman.

Post-16 school transport

17. As a schoolchild, Miss P had a legal entitlement to free school transport since she attended the nearest suitable school, named in her EHC Plan, which was more than three miles from her home. Now that she has embarked on her post-16 education, she does not. The law concerning school transport for young people in post-16 education is different. The Council must decide whether transport is necessary for her to attend school.
18. Councils must publish a statement specifying the arrangements they consider it necessary to make for the provision of transport or otherwise to facilitate the attendance of persons of sixth form age receiving education or training at specified institutions. (Education Act 1996, section 509AA)
19. ‘Sixth form age’ for transport purposes means:
• 16-19 year olds who started a course before their 19th birthday; and
• young people with Education, Health and Care (EHC) plans up to age 25 where they are continuing on a course started before their 19th birthday.
20. Further, there is no expectation the transport will be free.
21. Parents may be expected to provide transport themselves if they are able to do so. A recent legal challenge to a council decision that a parent should take their disabled sixth form age child to school along the lines of Ms R’s complaint in paragraph 13 above (disability discrimination) was unsuccessful. The court recognised that parents of disabled sixth form aged children have to “do more”. There are, however, no “absolute rules”. What parents can be expected to do will depend on their circumstances. Each case will turn on its facts.

The Council’s post-16 transport policy

22. The Council has published a post-16 transport policy for young people with special educational needs and disabilities. The policy is on the Council’s website.
23. The policy explains the eligibility criteria, the application process and the two-stage appeals process for anyone unhappy with the Council’s decision.
24. The policy says the Council will consider the individual circumstances of each case and will not apply blanket policies or make assumptions. It will consider whether it is reasonably practical in the circumstances of each case for parents or carers to accompany the student or make the travel arrangements themselves. The Council will assess applications based on the evidence provided, but may request additional information, including evidence from a parent’s employer regarding their work commitments, working hours, days, times and locations.

Consideration

25. The crux of Ms R’s complaint is that the family was unable to arrange the one journey per day the Council decided they should make because Miss P’s mother does not drive and her stepfather’s work commitments meant he was not available.
26. The Ombudsman does not decide whether Miss P is eligible for transport. This is the Council’s job. The Ombudsman checks the Council made the decision properly.
27. I made enquiries to find out how the Council considered Miss P’s stepfather’s work commitments. I noted the Council’s policy said it may require evidence from his employer. The appeal forms showed the family had given consent for the Council to contact his employer. However, there was no reference to any evidence from his employer in the appeal papers. There was a note he had recently changed jobs, but very little information about his new employment.
28. The Council confirmed it had not sought any information about Miss P’s stepfather’s work commitments from his employer. The Council explained the (second) appeal panel had offered to pay for one taxi journey per day, and the family had accepted the offer. The Council said that if the family had not accepted the offer, it would have sought further information from the employer and the panel would have re-considered.
29. The Council pointed out that although the panel’s letter was mistakenly referred to as the Panel’s “decision”, the letter said the panel was “minded to” offer payment for one journey per day. The Council explained this meant the letter was the Panel’s “provisional view” and was subject to any further representations. I note the letter itself does not say this.

Consideration

30. The Council made an offer of transport on the basis Miss P’s stepfather would provide one journey per day. It made its decision without detailed, up-to-date information about his work commitments.
31. Miss P’s family were unhappy with that decision, as demonstrated by their complaint to us. They say work commitments meant Miss P’s stepfather was not always available to collect her from school.
32. However, the Council accepts it has not considered detailed information about Miss P’s stepfather’s work commitments.
33. Something has gone wrong.
34. It was not apparent to me the panel’s offer letter was not, in fact, a decision but a “draft”. The letter asks whether the family accept the offer, but it does not invite them to comment. It does not explain the Council will seek further evidence and review its decision if they disagree. It is referred to as the Panel’s “decision”. The wording, which says the panel is “minded to” offer a payment simply appears archaic.
35. I checked the Council’s policy and information on the Council’s website to see if the process was explained there. I could not find any reference to the appeal panel making a “draft” decision or the opportunity to comment on what the panel was “minded to” do – with the possibility the Panel would consider further evidence – before it made a final decision.

Conclusions

36. Based on the evidence I have seen, the Council has not followed the appeal process set out in its policy and on its website in this case. The Council introduced an additional stage (a “minded to letter”) to the appeal without telling the appellants they had an opportunity to comment. The Panel made a “draft decision” without considering relevant information about Miss P’s stepfather’s work commitments despite the family giving consent for the Council to contact his employer. This is fault.
37. The result is that the Panel’s decision is flawed. The Council did not consider relevant information about Miss P’s stepfather’s work commitments before deciding he should provide transport. Miss P’s family were unhappy with the decision, but their dealings with the Council gave them (and me) the impression the appeal panel’s decision was final.
38. I think it is likely the family would have asked the Council to contact Miss P’s stepfather’s employer if the Council had made it clear this was an option when the Panel wrote to explain what it was “minded” to do. They had, after all, already given their consent.
39. There has been a significant change in the family’s circumstances since their appeal and it is not now possible to ask the panel to obtain information from Miss P’s stepfather’s employer and reconsider its decision.
40. It is not possible for me to say whether the Panel would have made a different decision if it had contacted Miss P’s stepfather’s employer to ask for information about his work patters.
41. Fault by the Council means Miss P’s family will never know if the Council would have made a different decision if it had considered their request properly. Ms R has been to considerable time and trouble pursuing their appeal. This is their injustice.

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Agreed action

42. We have published guidance to explain how we recommend remedies for people who have suffered injustice as a result of fault by a council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.
43. Regrettably, the change in the family’s circumstances means it is not possible for the Council to make the decision again properly. I understand Ms R has made a fresh application in light of the family’s changed circumstances. I also understand that Miss P was not without transport as her own circumstances made it possible to fund a single taxi journey each day herself.
44. Therefore, I recommended the Council:
1. apologises to the family for its failure to properly consider their application; and
2. reviews its transport appeals process and correspondence, and the published information describing it, to ensure they clearly explain the process followed and the opportunities to comment before a decision is final.
45. I recommended the Council completes these actions within one month of my final decision.
46. The Council accepted my recommendations and confirmed that work was already underway to improve the clarity of letter sent to parents in transport appeals. I welcome the Council’s foresight.

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Final decision

47. I have completed my investigation as the Council accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman