Summary: Mrs X complained the Council did not complete relevant transport assessments as part of her daughter’s move to post-16 education and that her appeals about transport costs were not heard fairly. We have found fault because the Council did not carry out necessary assessments or share information in a timely manner. To remedy the injustice caused by these faults, the Council has agreed to apologise, make a payment to Mrs X and update us on its progress in reviewing its procedures.

The complaint

1. Mrs X complains the Council did not complete any form of transport assessment for her daughter, Ms Y, as part of the move to post-16 education. She also says that the travel costs appeal process was not followed and her appeal was not heard fairly.
2. Mrs X says this has caused distress and frustration for her and the family as they were not adequately informed of transport arrangements after a college out of the local area had been named at tribunal.

Back to top

What I have and have not investigated

3. I did not investigate any issues relating to the college being named at tribunal and whether other schools or colleges may have been easier to travel to. Matters related to tribunal proceedings are not within our jurisdiction.
4. I did not investigate any issues relating to the Council not taking account of Ms Y’s Speech and Language Therapist’s views on putting a transport support plan in place. This would need to be a separate complaint to the Council as it does not appear the Council has had an opportunity to deal with this under its complaints process.

Back to top

The Ombudsman’s role and powers

5. 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)
6. 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)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

How I considered this complaint

8. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X and the Council had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

Back to top

What I found

10. A child with special educational needs may have an Education, Health and Care Plan (EHCP). An EHCP describes the child’s special educational needs and the provision needed to meet them.
11. Government statutory guidance for post-16 transport and travel support to education and training states that transport needs of young people with special educational needs and disabilities (SEND) must be re-assessed when they move to post-16 education.
12. This guidance also states the Council should ensure that parents are made aware during EHCP discussions that transport support will be considered in accordance with its own post-16 transport policy.
13. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support. (Home to School transport guidance July 2014 paragraphs 54-55). The guidance recommends councils adopt the following appeals process:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us. (Annex 2 of the guidance)

The Council’s policy

14. There is no requirement for councils to provide free or subsidised post-16 travel support. The law imposes a duty to publish a transport policy statement setting out the transport arrangements they consider it necessary to facilitate attendance at education or training. The policy must include transport arrangements for young people of sixth form age with SEND.
15. The Council has a detailed post-16 travel assistance policy for young people including those with SEND (the Policy). Amongst other conditions, the Policy states that:
1. a young person may be eligible for travel assistance if they have SEND which may be identified in an EHCP;
2. support for those eligible will attract a fee (currently £785) for each academic year;
3. the charge may be reduced in certain circumstances;
4. travel assistance arrangements will only be provided upon receipt of payment of the relevant charge;
5. a young person will not be eligible if the travel charge is not paid;
6. passenger assistants are not provided for young people over the age of 16; and
7. a decision can be challenged on certain listed grounds, for example, eligibility or suitability of transport arrangements offered.

What happened

16. Mrs X has a school-aged daughter, Ms Y, who was attending a school outside of the local area as a full-time boarder until July 2022. Ms Y has special educational needs and has had an EHCP since 2017. When Ms Y made occasional visits home from this placement, Mr and Mrs X would transport her and the Council would reimburse agreed costs for these trips at a later point.
17. At the beginning of April 2022, Ms Y’s education placement for the academic year 2022-23 was named as a college in a different location, also outside of the local area. This placement was decided at tribunal. Ms Y would now be entering post-16 education and would board at the college six nights per week.
18. The Council wrote to Mrs X in mid-May 2022. It advised that as Ms Y would soon be finishing Year 11 the Council normally asked parents to contribute towards the cost of transport as a ‘fare payer’ for the next academic year. The letter explained the cost for the academic year, its payment schemes and also how to apply.
19. Mrs X emailed the Council the next day to advise that she had filled out the fare payer application form but that she disagreed the family should be expected to contribute, citing exceptional circumstances. She asked the Council to ‘look into’ the matter urgently.
20. At the beginning of June 2022, the Council emailed Mrs X to advise it had considered the family’s request to waive the fare payer fee for Ms Y. The request was discussed at the Council’s SEND panel. The meeting decided Ms Y was not eligible to have the fee waived under the terms of its post-16 school transport policy.
21. Further emails that day show the Council advised Mrs X she would need to complete a new SEND transport application so it could assess what type of transport might be available to Ms Y under the scheme.
22. Near the end of July 2022, Mrs X emailed the Council to ask what type of transport would be provided if the family paid the fee. Mrs X complained the Council had rejected her appeal and that time was running out before the family needed to pay the fee by the deadline of 31July.
23. On the same day, the Council confirmed it had escalated the matter to senior officers and its SEND transport team.
24. The Council held a stage two transport appeal late in August 2022 which Mrs X attended.
25. Mrs X and the Council communicated various times towards the end of August and beginning of September 2022, so that the timings and exact method of transport for Ms Y could be decided.
26. Ms Y is now being transported to and from her college by taxi each weekend which the Council is paying for, subject to the fare payer fee having been paid.
27. Mrs X has confirmed the family is currently paying the full fee by instalments.

Analysis

Transport assessment

28. Mrs X complains the Council did not complete any form of transport assessment for her daughter, as part of the move to post-16 education.
29. As part of my enquiries, I asked the Council to provide me with any review or assessment documentation completed in line with the Government’s guidance outlined in paragraphs 11 and 12.
30. The Council responded, advising:
1. it requests parents of young adults with SEND to complete a request for transport;
2. that it does not complete any transport assessments until such a request has been received;
3. parents should be advised there is a fare payer fee; and
4. the post-16 transport policy should be discussed during EHCP annual reviews when preparing for transition to post-16 education.
31. The Council confirmed that:
1. the EHCP annual review did not include discussions regarding post-16 transition;
2. the fare payer charge was unlikely to have been discussed;
3. it did not specifically share the details of its post-16 transport policy when the college was named at tribunal; and
4. that Mrs X was only advised of the fare payer fee and linked policy when the Council wrote to her six weeks after the college had been named and when it advised that transport for Ms Y would end on 31 July 2022.
32. The Council should have carried out a re-assessment of Ms Y’s needs as per Government guidance. Not doing so is fault.
33. Failure to discuss transport policy as part of the EHCP annual review is also fault. This meant that Mrs X was not advised about the fare payer fee until some time after she should have been.
34. These errors will have caused confusion and uncertainty to Mrs X. The Council has admitted these errors and apologised as part of its response to my enquiries.
35. The Council has also confirmed it is “taking all necessary steps to ensure that discussions around (its) post-16 transport policy and any associated transport fees are communicated explicitly and in advance of any post-16 transition, during EHC Plan discussions and placements.”
36. I have made a recommendation below to remedy the injustice caused by the faults listed above.

Transport policy

37. Mrs X complains the Council did not follow its transport appeals process correctly and that her appeal was not heard fairly. The Policy has a clear two stage appeals process.

Appeal process at stage one

38. When Mrs X asked the Council to ‘look into’ the payment matter in May 2022, it appears it treated this as a stage one ‘review of decision’ request. The Council’s chronology does not specifically reference a stage one review but shows the only other review carried out was the stage two transport appeal meeting, late in August 2022.
39. The Policy outlines its stage one review procedures. These are broadly in line with suggested guidance detailed in paragraph 13. Amongst other things, it states the decision will share:
1. information about other departments consulted in the process;
2. what factors were considered;
3. the rationale for the decision reached: and
4. give information about how to escalate to stage two of the process if appropriate.
40. The email sent to Mrs X at the beginning of June 2022 explained the outcome of the SEND panel’s decision and directed Mrs X to the webpage for the Policy, asking her to complete an appeal form.
41. The email, however, did not explicitly state that the meeting had been treated as a stage one review. If the Council was treating this as a stage one review, then it was not carried out by a senior officer, but the SEND panel instead.
42. Further to this, the email sent did not clarify parts a), b) and c) of paragraph 39. Whilst the email did direct Mrs X to the Council’s relevant policy, it failed to clearly explain to Mrs X that she should escalate the matter in 20 working days if she wished to.
43. This lack of clarity in the Council’s communication is fault. It will have added to the confusion Mrs X was already experiencing regarding the transport issue. I have made a recommendation below to remedy this injustice.

Appeal at stage two

44. Mrs X then emailed the Council towards the end of July to ask for further information about Ms Y’s transport provision. The Council appears to have treated this as a stage two escalation request.
45. Stage two of the appeals process is very similar to stage one and is also broadly in line with suggested guidance detailed in paragraph 13.
46. The Council upheld the stage one decision not to waive the fare payer fee and advised that Ms Y was eligible for transport assistance if the fee was paid.
47. I have viewed the minutes of the panel meeting. These, in conjunction with the Policy, persuade me that the stage two process was followed in a transparent and appropriate manner. The meeting took place within the time limit set out and signposted Mrs X to us. The Council explained its reasoning and was entitled to uphold its original decision not to waive the fare payer fee. I find no fault in the actions of the Council regarding stage two of the process.

Transport arrangements after tribunal

48. Mrs X complains she was not adequately informed of transport arrangements after the college was named at tribunal.
49. As the Policy states that transport arrangements will only be provided after the fare payer fee has been paid, the Council was within its rights not to go into detail about this until payment had been agreed. I find no fault in the actions of the Council here.

Back to top

Agreed action

50. To remedy the injustice caused by the faults I have identified, the Council has agreed to take the following action within four weeks from the date of my final decision:
1. apologise to Mrs X; and
2. pay her £100 for the confusion caused and time and trouble taken to make her complaint
51. Within six weeks of the date of my final decision, the Council has agreed to provide a report to the Ombudsman outlining progress made against its statement made in paragraph 35, including a timeline for completion.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I have now completed my investigation. I uphold this complaint with a finding of fault causing an injustice.

Back to top

Investigator's decision on behalf of the Ombudsman