Summary: Mr and Mrs X complained about the Council’s decision to charge them a contribution to post-16 school transport costs for their child C, and its consideration of their appeal about this. There was fault by the Council which caused avoidable distress and confusion for Mr and Mrs X and meant it did not properly consider their appeal. The Council agreed to apologise, pay a financial remedy, allow Mr and Mrs X another opportunity to appeal, write to other families who may have been affected, and issue reminders to its staff.

The complaint

1. Mr and Mrs X complain about the Council’s decision to charge them a contribution to post-16 school transport costs for their child C, who is disabled. They say the Council:
• told them it was changing its policy about this too late and then provided unclear and conflicting information about the change;
• did not give them enough time to appeal the decision; and
• did not properly consider their appeal.
2. Mr and Mrs X say this caused them distress and uncertainty about how C would get to school, and they spent time and trouble trying to resolve the issues. They want the Council to properly re-consider their appeal allowing them to provide further evidence, and to provide a remedy for the time they have spent pursuing the issues.

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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. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. 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)
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. 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)
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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How I considered this complaint

10. I considered:
• information provided by Mr and Mrs X and discussed the complaint with Mr X;
• documentation from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
11. Mr and Mrs 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

School transport law and guidance

12. A child with special educational needs (SEN) may have an Education Health and Care (EHC) plan. This sets out the child’s needs and the arrangements that should be made to meet them. Statutory guidance ‘Special educational needs and disability Code of Practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC plans. The Code says transport costs may be provided as part of a Personal Budget where one is agreed, and included in an EHC plan as part of the SEN provision. It says transport should only be recorded in a plan in exceptional cases where a child has particular transport needs.
13. Sections 509AA – 509AC of the Education Act 1996 set out what a council must consider when setting its policy for school transport for those of sixth-form age. Councils should also have regard to the relevant statutory guidance, ‘Post-16 transport and travel support to education and training January 2019’. Councils:
• must arrange for the transport they “consider necessary” for an adult with an EHC plan to attend their education or training placement. Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs;
• can ask a family to contribute to costs but should ensure any contribution is affordable;
• are expected to target support with post-16 transport at those who need it most;
• must take account of the fact pupils with SEND may be in education longer and it would be good practice not to charge if the young person would be eligible for free adult transport; and
• must exercise their power to provide transport or financial support “reasonably, taking into account all relevant matters”.
14. Statutory guidance ‘Home to School transport guidance July 2014’ says councils should have an appeals process in place for decisions about a child’s eligibility for travel support. This guidance recommends a standard two-stage appeals process for councils to adopt, with clear timescales at each stage.

The Council’s school transport policy

15. The Council updated its Home to School Transport policy in July 2022. Previously, the Council arranged and fully paid for C’s transport to school. Under its new policy, families with 16–18-year-olds eligible for transport assistance from the Council are asked to contribute a standard fixed fee towards the cost of their transport. This contribution can be:
• paid in three instalments if preferred; and
• waived entirely for families on a low income. The policy defines families on a low income as those who “meet the eligibility criteria for pupil premium or receive working tax credit at the maximum level”.
16. Pages 16-18 of the Council’s policy sets out its two-stage appeal process for school transport assistance decisions. This says:
• applicants have 20 days to appeal the Council’s decision;
• at Stage 1, where the child/young person has an EHC plan, the appeal will be passed to senior officer(s) within the SEND team to ensure they are assessed in line with their plan. If needed, the SEND team will then pass the appeal for consideration by the School Transport Appeal Review (STAR) panel, which comprises three senior officers from Children’s Services;
• the Council will notify the family of the outcome of their Stage 1 appeal within 20 days of the result of the appeal review. If they are not satisfied, they can seek escalation to Stage 2 within a further 20 days;
• at Stage 2, the appeal is considered by the Council’s school transport appeal committee, which comprises three local Councillors. The policy does not state any timescale for this stage.

Background

17. Mr and Mrs X’s child C, who is disabled and has an EHC plan, started post-16 education at a new school in September 2021. The Council agreed to arrange and fund C’s transport to this school and did so throughout the 2021/22 school year.
18. In July 2022, the Council told Mr and Mrs X it had changed its policy. It said they would now need to pay a financial contribution to the cost of C’s school transport, for the 2022/23 school year. Mr and Mrs X appealed this decision. The Council decided the family still had to pay the contribution but offered a payment plan to spread out the cost over a longer period. Mr and Mrs X then came to the Ombudsman.

The Ombudsman’s jurisdiction

19. The Education Act 1996 and associated statutory guidance says complaints about school transport may be made to the Local Government and Social Care Ombudsman, or to the Secretary of State (SoS) for Education. As described at paragraph 4, the law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, in this case I consider it was reasonable for Mr and Mrs X to come to the Ombudsman. I do not consider there is good reason to direct them to complain to the SoS now.

The Council’s change of policy

20. In early 2022, the Council carried out a public consultation about the changes it proposed to make to its school transport policy for the 2022/23 school year. As part of this consultation, it wrote to families who would be directly affected. Mr and Mrs X said they did not receive this letter.
21. We cannot tell a council what its policy should be, or decide its policy is unlawful, but can consider whether it takes account of relevant legislation. As explained at paragraph 13, councils can ask for families with circumstances such as C’s family to contribute to school transport costs. The law does not prevent this.
22. The Council:
• consulted with relevant stakeholders on the changes to its policy; and
• scrutinised the new policy, including taking account of equality considerations and the impact on those with protected characteristics, via its committee structures. It amended the policy as needed to account for equality issues it identified.
23. Therefore, I am satisfied there was no fault in how the Council made changes to its policy and that it carried out its consultation about this properly.
24. However, the Council’s new policy does not set any timescales for Stage 2 of the appeals process. I consider this is fault, because it has the potential to lead to appeals taking many months to consider and appellants not knowing how long they should wait. Our view is all stages of council appeal or complaint procedures should have realistic timescales set out and the Council’s policy fails to do this. In this case, I do not consider this impacted on Mr and Mrs X or caused them an injustice. When they appealed, the Council quickly told them the date this would be considered at a school transport appeal committee and considered it in good time.

How the Council communicated with Mr and Mrs X about its change of policy

25. I accept Mr and Mrs X did not receive the policy consultation letter described at paragraph 20, in early 2022. I do not consider it relevant to my investigation to decide whether the Council sent it to them. This is because I cannot say, even on the balance of probabilities, whether this would have made any difference to the outcome of the Council’s consultation. Also, the information in the letter was subject to change and did not necessarily mean anything about C’s transport arrangements for 2022/23 would change.
26. I only consider it important to decide whether the Council:
• gave Mr and Mrs X clear information about how the new policy impacted them once it was agreed;
• provided this information in good time before the changes came into effect; and
• told them how to appeal its decision about the transport assistance it would provide to C under the new policy.
27. The Council wrote to Mr and Mrs X about the new policy in mid-July 2022, three weeks after it agreed the final policy through its committee structures. I consider the Council was at fault because this letter:
• was titled “school transport assistance ending” and said, “if you do not respond to this letter by 29 July 2022, transport arrangements will finish at the end of the current academic year”. This meant Mr and Mrs X had at most two weeks to consider and respond to the information. My view is this did not give them enough time to make a properly informed decision about what action to take. When the Council sent the letter there was only one week left of term-time before schools closed for the summer. This meant Mr and Mrs X could not get evidence from C’s school they wanted to provide in support of their appeal against the decision. Also, had they been aware of and wished to explore alternative transport funding through school bursaries, they did not have enough time to discuss this with C’s school; and
• set out three options for how Mr and Mrs X could proceed. It said they could pay the contribution in one instalment, pay it in three instalments, or let the Council know if they met the eligibility requirements for the contribution to be waived as described at paragraph 15. Although the letter linked to a copy of the new policy, which included the appeals process, it did not specifically direct Mr and Mrs X to their right to appeal the decision. This was fault. Mr X contacted the Council the same day he received the letter to query it. The Council did not tell him he could appeal the decision until five days later, which was the last day of term at C’s school.
28. Four days after the Council told Mr X he could appeal its decision, a different staff member told him he could ignore the letter, as the changes did not apply to C. Three days after this, the Council then told him this was wrong and the family would need to contribute to costs, as set out in the letter. By this time, C’s school had been closed for the summer for a week. The Council accepted it was at fault in that it wrongly told Mr X to ignore the letter and apologised for this.
29. The faults in how the Council communicated with Mr and Mrs X about the new policy caused them confusion and distress. It also meant they did not have enough time to properly appeal the Council’s decision. The Council should remedy the injustice caused. The Council contacted all families affected by the post-16 policy changes at the same time as Mr & Mrs X, in mid-July 2022, which was too late. I have recommended the Council acts to remedy any injustice it may have caused to any other families who were affected by the changes.

How the Council applied its policy to C and considered their appeal

30. The Ombudsman is not an appeal body. It is not our role to decide whether Mr and Mrs X should pay a contribution to C’s school transport costs under the Council’s policy; that is the Council’s responsibility. We do not take a second look at a decision to decide if it was wrong. We investigate the processes a council followed in its consideration of an application or appeal, to assess whether it made its decision properly.
31. There was no evidence the Council wrongly applied its policy in its July 2022 decision that Mr and Mrs X should pay a contribution to C’s transport costs, based on the information available to it at that time. However, I am not satisfied the Council properly considered the family’s appeal about this in August 2022. The faults identified are described below.
32. Once the Council confirmed its final position that the policy changes applied to C, it only gave the family six working days to appeal the decision. This was fault. The Council’s policy says applicants have 20 days to appeal.
33. The Council also decided to miss out Stage 1 of its appeal process to ensure a quicker outcome for Mr and Mrs X. This was fault. Because of this, the appeal did not receive proper consideration by a senior SEND officer to ensure C’s case was assessed in line with their EHC plan, as the Council sets out in its policy. The SEND officer would also have considered whether the appeal should be considered by a panel in Children’s Services, but this did not happen. Had the Council considered the appeal at Stage 1 in line with the policy, it then would have given the family a further 20 days to provide evidence. They also would have had the benefit of the Council’s reasons for its Stage 1 decision to inform their Stage 2 appeal. The Council did not provide them this opportunity.
34. The Council’s school transport appeal committee considered the appeal in late-August 2022. Mr X attended this meeting. He said he did not think the committee properly considered evidence he provided before the meeting because it did not discuss this or ask him about it. My view is the committee did not properly consider the appeal because:
• we asked the Council to provide us with copies of the documents considered by the committee. It sent us a copy of the family’s school transport application and associated evidence from March 2021. It did not provide copies of the various documents Mr X provided to us and told us he put in with the appeal in August 2022. The Council’s report of the committee decision also showed it only considered the March 2021 transport application and an internal Council summary about why the contribution for Mr and Mrs X should not be waived. It did not mention Mr X’s statement of appeal or accompanying evidence;
• notes of the committee’s discussion in the Council report were mainly about the Council’s justification for changing its policy and how it consulted on and approved this. The Council did not properly discuss or consider the family’s individual circumstances and reasons for appeal, or whether it should consider exercising discretion based on the evidence provided;
• the committee report mentioned the family cited financial pressure as a reason for appeal but did not say how it considered the evidence Mr X provided about their finances. It also stated the family had access to a car via the ‘Motability Scheme’ using C’s Disability Living Allowance, but did not say how this information informed the committee’s decision, if at all; and
• the Council did not consider whether C would be eligible for free adult transport, and therefore whether it would be good practice not to charge the family a contribution. Therefore, it did not have regard to the statutory guidance described at paragraph 13.
35. The Council’s failure to properly consider the appeal, was fault. The Council was also at fault in the appeal outcome letter it sent to the family because this was not detailed enough. The letter lists facts about the family’s circumstances but does not say how the committee considered these or what conclusions it drew. It does not properly explain the reasons for the committee’s decision. It also does not say how the committee considered the evidence the family provided. As outlined above, it did not properly consider this.
36. When I spoke to Mr X in late-October 2022, he said the family had missed their first contribution payment to the Council because they could not afford to pay it. They were applying to C’s school for a transport bursary and had asked the Council to consider amending C’s EHC plan to include transport needs. The Council had allowed the family an extension on their first missed payment.

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Agreed action

37. Within one month of our final decision the Council will:
1. apologise to Mr and Mrs X for the faults identified;
2. allow Mr and Mrs X a further opportunity to appeal its decision to charge a contribution for C’s transport costs, in line with the process and timescales outlined in its policy. It should ensure it properly considers the evidence and properly explains the reasons for its outcome. It should not pursue recovery of any contribution payments while the new appeal is ongoing;
3. pay Mr and Mrs X £400 to recognise the avoidable distress and confusion caused by its failings; and
4. write to other families with children in post-16 education it wrote to in July 2022 asking for a contribution to transport costs, as follows:
1. for families that did not appeal, the Council will explain it did not make their right to appeal clear enough, and invite them to appeal the decision retrospectively if they wish to do so; and
2. for families that appealed, but only those the Council did not consider in line with the timescales outlined in its policy, it will explain it did not allow them enough time to provide evidence. It will allow them a further opportunity to appeal if they have new evidence not previously considered.
38. Within three months of our final decision the Council will:
1. review its Home to School Transport policy to ensure it sets clear timescales for Stage 2 of the appeals process; and
2. share a copy of our final decision with, and issue reminders to, relevant staff, including Councillors who sit on its Stage 2 school transport appeal committee, to ensure they are aware of:
1. the Council’s eligibility criteria for transport assistance for 16-to-18-year-olds;
2. the Council’s school transport appeal process and its timescales; and
3. the faults we have identified in this case with the process followed and the Stage 2 school transport appeal committee’s consideration.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation. There was fault by the Council which caused avoidable distress and confusion for Mr and Mrs X and meant it did not properly consider their school transport appeal. The Council agreed to our recommendations to remedy this injustice, write to other families who may have been affected, and issue reminders to its staff.

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Investigator's decision on behalf of the Ombudsman