Summary: The Council failed to carry out the agreed actions following an earlier investigation by us following a complaint from Mrs X about its failure to provide appropriate free transport to college for her son, Mr Y, an adult learner with an Education, Health and Care Plan. The Council has agreed to apologise for the additional injustice caused because of this failure to carry out the agreed actions on time, make a payment and complete the agreed actions.

The complaint

1. In an earlier investigation by us, Mrs X complained the Council failed to provide appropriate free transport to enable her adult son, Mr Y, to attend the college named in his Education, Health and Care (EHC) Plan. We found fault with the Council and the Council agreed to take appropriate action within a set timescale. This complaint deals with the Council’s failure to carry out all the recommendations we made on 30 May 2022 and looks at whether any additional injustice was caused to Mrs X or Mr Y.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered the final decision on Mrs X’s original complaint (21011785), our letters and emails to the Council about the agreed actions and its responses.
5. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Legislation

6. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” (or that the Secretary of State directs) to facilitate the attendance of relevant young adults at institutions where the local authority has secured the provision of education for the adult concerned. Relevant young adult means an adult who is under 25 years old for whom an EHC plan is maintained. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs. The plan coordinates a child or young person’s health and social care needs and sets out any additional support they might need. (The Children and Families Act 2014, section 82) Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs. 
7. When a council finds it is ‘necessary’ to provide transport for the young adult under section 508F, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).

Our findings and recommendations from the previous investigation of May 2022

8. In an earlier investigation I found fault with the Council causing injustice to Mr Y and Mrs X.
9. Mr Y has an EHC Plan and started a new four day a week college course in September 2021, at the college named in his Plan. He was 19 years old. Mrs X applied for transport to college which the Council refused, saying Mr Y was not eligible for assistance. It offered to reimburse her mileage for one year or provide a personal travel budget equivalent to the mileage rate. Mrs X explained she could not transport him to college due to work commitments and the budget was not sufficient to cover a taxi.
10. In May 2022, I found the Council at fault as:
• it failed to consider the requirements of s508F of the Education Act, that Mr Y had an EHC Plan and was a relevant young adult. The Council has failed to decide whether it considered it is ‘necessary’ for Mr Y to receive travel support to facilitate his attendance at college.
• it failed to show how the discretionary mileage allowance/personal travel budget it provided could be used to ensure Mr Y attended college.
• it failed to discuss with Mrs X whether transport would be provided at the time it agreed to name the college in the EHC Plan. It did not give her sufficient information to make an informed decision about the choice of college
• the Council’s policy failed to clearly set out its statutory duty to provide free transport if it is necessary for adult learners with an EHC Plan.
• the ASC Team was aware the Council was not willing to provide school transport to Mr Y. The Council should have considered its duties sooner under the Care Act.
11. Prior to April 2022, Mr Y was only able to attend college twice a week instead of the required four days a week. In late April 2022 the Council provided Mr Y with a combined ASC/transport budget which Mr Y used to fund taxi transport to college.
12. I made the following recommendations to the Council, and it agreed to carry them out:
13. By 30 June 2022, the Council agreed to:
1. assess whether it is ‘necessary’ for Mr Y to receive transport to his college as an adult learner. This should include a written record of its deliberations and consideration of section 508F of the Education Act and the 2016 case law.
2. apologise to Mr and Mrs X and Mr Y and make a symbolic payment of £500 to Mr Y to acknowledge uncertainty and time and trouble caused by Council failings.
3. at Mr Y’s annual review, or another appropriate meeting if the review is not due within the next month, the Council will consider the impact the lack of transport has had on Mr Y’s ability to attend college and to complete the course when deciding on his future goals.
14. By 30 August 2022, the Council agreed to:
1. review its post-16 transport policy to ensure it clearly sets out the difference in its duties between sixth form and adult learners, including the Council’s responsibility to provide free of charge transport where it is considered necessary for relevant young adults with an EHC Plan.
2. review its procedure for determining applications and appeals from adult learners for transport to ensure the Council decides whether transport is ‘necessary’ and if not whether the Council has decided to provide transport or other transport support under its discretionary powers.
3. when naming a post-19 setting in an EHC Plan, ensure it properly considers whether the placement is appropriate and suitable and ensures the individual and/or their family are made aware of the Council’s transport policy and the likelihood of the provision of transport. This should allow them to make informed decisions
4. ensure the Transport Team appropriately signposts applicants to ASC to consider whether support for disabled adults to attend post -19 education should be provided under the Council’s Care Act duties.

Compliance with agreed actions from the previous investigation

15. In June 2022 the Council provided evidence it had apologised, and it made the appropriate payment to Mrs X. In the letter to Mrs X the Council advised it would arrange a meeting with Mrs X and Mr Y
16. In July 2022 Mrs X contacted us to advise they had not had a meeting with the Council. We asked the Council for an update.
17. In early August 2022, the Council confirmed it had reassessed Mr Y for travel assistance and agreed this was necessary and it had put a joint adult social care/transport budget in place. It said a review meeting would be arranged in the new academic year. It said it could not arrange one before the end of the summer term as the college term ended in late June 2022.
18. We wrote to the Council and asked it to arrange a meeting as soon as possible as the Council had agreed to hold the meeting by 30 June. We explained this did not need to be an EHC Plan review meeting and could be a different meeting, as set out in the recommendation above.
19. The Council responded at the end of August 2022. It said the issues sat with the Council’s SEND Team rather than its Education Transport Team. It said Mrs X had reported Mr Y’s first year at the college had not been successful and they were looking for an alternative college placement from September 2022. Mrs X had identified a course and the Council was looking to amend his EHC Plan. It said the Council’s social worker had attempted to speak to the Council’s SEN Team but at the time Mr Y did not have an allocated SEN caseworker. It said it had now allocated a caseworker and asked us if it was appropriate for the caseworker to undertake the meeting. We responded on 1 September that it was appropriate for the meeting to be with the SEN Team and asked for an update once the meeting had taken place.
20. Mrs X contacted us a few days later as she still had not heard anything from the Council regarding arranging a meeting.
21. In early October 2022 we asked the Council again for an update. We also asked for evidence it had completed the actions set out at paragraph 14 above, which were due for completion by 30 August.
22. Mrs X contacted us again on 10 October to confirm the Council had still not arranged a meeting. She advised they were currently in exactly the same situation as the previous year regarding transport for Mr Y’s new college course. They decided to pursue a new complaint with the Council for the academic year from September 2022.
23. In mid-October 2022 the Council provided us with an update. It said its SEN/Assessment Team was responsible for the meeting and for the recommendation at 14c) it would provide a separate update.
24. It said a review of the post 16 transport policy was ongoing. Initial consultation was underway, and it had produced a draft policy that clearly explained the difference between post 16 and adult learners. It said any change in policy required full consultation and final sign off by its Legal Team and Cabinet members. It provided evidence it had completed the agreed actions at 14b) and 14d).
25. We contacted the Council again requesting an update. The Council responded on 8 November. In relation to 14c) it said it had ‘advised all Team members, whenever they are consulting with out of area providers, they must advise parents of the Transport Policy and provide them with the link to it. This has been adopted for all families now. The Team are reminded to ensure that the family are aware that the Transport Policy may not provide over 16 transport’. It provided no evidence in support of this.
26. We spoke to Mrs X in mid-November. She confirmed she had still not had a meeting with the Council but she felt it was too late now. Mr Y had not wanted to continue at the same college as in 21/22. She believed the lack of transport impacted on his ability to make friends and enjoy the course. Mr Y had found a new course and Mrs X ensured the Council was fully involved in the process. However, when he got a place, he was again offered a transport budget which did not cover the cost of the journey. Following a complaint by Mrs X, the Council had agreed to provide transport and Mr Y was now attending college full time.
27. We recently wrote to the Council to advise we had opened a new complaint due to its failure to complete all the agreed actions following our previous investigation. The Council provided a further update. It said:
• it was in the process of setting up a joint meeting with the family.
• it ran a consultation event with the Parent Carer Forum on 19 October regarding the transport policy. It said the changes were agreed with a review of the full Council transport policy to commence in January 2023.
• it was currently reviewing its EHC Plan process to build in a trigger question for the caseworkers, so they share the transport policy during the assessment process.

Findings

28. The Council agreed to our recommendation to arrange a meeting with the family within one month of the final decision. The meeting should have been held by 30 June. It has still not taken place. This is fault and has caused Mrs X and Mr Y unnecessary additional frustration. The purpose of the meeting was to consider what impact the lack of transport had on Mr Y’s ability to attend college and complete the course. Mrs X believes not attending all four days in 2021/22 impacted on Mr Y’s ability to enjoy the course and develop friendships. Mr Y has since started attending a different course. To secure the full transport costs, Mrs X had to pursue a new complaint to the Council. This additional time and trouble may not have been necessary had the Council arranged the meeting with Mr Y and Mrs X in June that it had agreed following our investigation.
29. The Council agreed to revise its transport policy by 30 August 2022. It has not done so. This is fault. The Council has explained the need to consult on the policy and have it approved by its Cabinet. However, it should have been aware of this at the time it agreed to the complete recommendation by 30 August. The Council has provided a draft copy of the policy but has failed to confirm when the policy will be finalised and in place. Therefore, we are not satisfied with the lack of progress. Until the policy is amended, the Council may be making errors in other applications for post-16 education transport.
30. Also by 30 August 2022, the Council agreed when naming a post-19 placement in an EHC Plan, to ensure the individual and/or their family were made aware of the Council’s transport policy and the likelihood of the Council agreeing to provide transport, to allow them to make informed decisions. The Council said it spoke to staff but provided us with no evidence of the action taken to ensure this happened. It said parents would be advised of the Transport Policy, but the policy has yet to be revised and this does not clearly explain the Council’s obligations to adult learners with an EHC Plan. This is fault and may affect others who apply for education transport. The Council has since advised it is reviewing its EHC Plan process to build in a trigger question for the case workers, so they share the transport policy during the assessment process. This is likely to be appropriate to fulfil the agreed action. However, it has provided no evidence of the trigger question or of timescales for completing this. As a result of failing to complete this action by 30 August, others could be affected by the same fault of not being given enough information to make an informed decision about post-19 education.

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Agreed action

31. Within one month of the final decision on this complaint the Council has agreed to:
1. Pay £250 each to Mrs X and to Mr Y to acknowledge the additional frustration caused by the Council’s failure to meet with them by 30 June.
2. Provide evidence it has revised the EHC Plan process to build in a trigger question for the case workers, so they share the transport policy during the assessment process.
3. Confirm when the revised post-19 Transport Policy will be finalised and approved by committee. We would expect the revised policy to be in place for the 2023/24 academic year.
32. Within two months of the final decision the Council has agreed to consider this decision at an appropriate committee or cabinet meeting to ensure its leaders are aware of the faults identified, the potential impact on adult learners, and can consider what actions are needed to prevent a future recurrence of its failure to act on our recommendations.

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Final decision

33. I have completed my investigation. There was fault by the Council causing injustice which the Council has agreed to remedy. It has also agreed to service improvements to prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman