Summary: Miss X complained on behalf of a family member, Miss Y. Miss X said the Council failed to consider all the evidence available when it decided not to provide Miss Y with post-16 travel assistance. There was no fault in the way the Council decided not to award Miss Y travel assistance. There was fault in the Council’s record keeping. The Council should apologise to Miss X for the uncertainty caused by the fault and carry out a service improvement.

The complaint

1. Miss X complained on behalf of her family member, Miss Y. Miss X says the Council failed to consider all the evidence available when it refused to provide post-16 travel assistance to Miss Y.
2. Miss X says this has caused Miss Y distress and has affected her ability to access education.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
5. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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)

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How I considered this complaint

7. I spoke to Miss X and Miss Y and considered information they provided.
8. I considered information provided by the Council.
9. Miss X and the Council had the opportunity to comment on the draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and Council policy

10. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider necessary to facilitate attendance at education or training and the financial help available for learners of sixth form age (age 16 to 19). Arrangements may include a concessionary fares scheme, a bus pass, a mileage allowance, or provision of actual transport. Parents may be asked to contribute to these costs. The Council’s policy must include arrangements for learners with special educational needs and disabilities.
11. The Council has a transport policy for young people aged 16-18 in further education, continuing learners aged 19 and those young people aged 19-24 with learning difficulties and/or disabilities.
12. The Council’s 2022/23 policy states that all young people who are in full time education and live in a London Borough are entitled to free transport through various schemes within London and says most students will be able to meet their transport needs through those programmes unless their SEND, medical needs or disability prevents them from doing so.
13. The Council’s policy says it will award transport assistance where it decides a student is either unable to travel on public transport independently or cannot reasonably be expected to walk to the education or training facility.
14. The Council’s policy also says it will determine eligibility by considering various factors, including but not limited to:
• an assessment of the applicant’s individual needs and ability to use public transport;
• distance from home to learning establishment;
• availability of alternative, more local, resources; and
• the suitability of the place of learning and course in relation to the student’s needs.

Background

15. The information below is not everything that happened. It is a summary of key information.
16. Miss Y is a young person with a diagnosis of ADHD and Autism. She also has difficulties relating to her mental health, including anxiety. Miss Y started a post-16 course outside the Council’s area at college A in September 2022. Miss Y used public transport to attend the college, which included several changes of transport and more than 130 minutes of travel each way.
17. In March 2023 Miss X applied for transport assistance on behalf of Miss Y to support her to attend her chosen course at college A. The application included information about Miss Y’s SEND and the difficulties she experiences on public transport.
18. The Council refused the application several days later. It recorded Miss Y’s needs did not meet its criteria to award travel assistance based on its post-16 transport policy. It wrote to Miss Y’s family to inform them of the decision. It also explained Miss Y could use one of the Council’s travel schemes instead.
19. In April 2023 Miss Y’s parent appealed the Council’s decision. They provided the Council with additional information about Miss Y’s SEND and their own health issues which impacted their ability to support Miss Y. In May 2023 they provided an additional report from the local Child and Adolescent Mental Health Service about how Miss Y’s ADHD affects her.
20. The Council considered the appeal at stage one of its process. It upheld the original decision and said:
• it considered information about Miss Y’s SEND, but decided not to provide transport because Miss Y had demonstrated she could travel to and from college on public transport, therefore she did not meet the eligibility criteria;
• the Council encourages young people to develop life skills and young people are expected to travel independently where possible; and
• its policy was for applicants to “attend the most appropriate school”. It said the Council found another college, college B, that offered the same course closer to Miss Y’s home and there was a coach she could use to get there.
21. In early June 2023 Miss Y’s parent submitted a stage two appeal. They told the Council:
• it had not properly considered the evidence and explained their view the professional reports demonstrated Miss Y required transport;
• it referred to Miss Y with the pronoun “his” rather than “her” in its decision letter, which demonstrated a lack of attention; and
• Miss X finds public transport discomforting, therefore while college B offers a coach, this was not suitable to meet Miss Y’s needs.
22. The Council invited Miss Y and her family to attend a stage two panel hearing, but the family declined to attend.
23. The Council held the stage two appeal panel later that month. In the meeting record, the name of another young person was mistakenly entered in the third paragraph, with incorrect details of the college and course. The rest of the document refers to the correct young person, college, and course. The Council recorded it had:
• considered the additional information provided by Miss Y’s family, the rejection letter and the stage one appeal rejection;
• considered its transport policy, in particular that applicants must be enrolled on a programme at “the most appropriate school”;
• acknowledged Miss Y’s anxiety regarding public transport, but recorded that because college B was closer to Miss Y’s home and offered a coach that could transport her, this would have been a more suitable placement for Miss Y to attend; and
• acknowledged the wrong use of pronoun, and recorded it was sorry for the discrepancy. It said it would make every effort to ensure quality checks are undertaken to prevent recurrence.
24. The stage two appeal panel rejected the appeal. In its decision letter it said it had considered all the evidence and listed the information it considered. It explained it decided Miss Y was not eligible for transport because she had shown she was able to travel to college independently, which the Council encourages. In addition, it found college B offered the same course which Miss Y could have attended and was closer. Therefore, she did not meet the criteria for post-16 transport in line with its policy. The letter did not offer an apology for the wrong use of pronoun.
25. Miss Y was dissatisfied with the Council’s decision and brought her complaint to us.

Analysis

26. We are not an appeal body. Our role is to review the process by which decisions are made. We look for evidence of fault causing a significant injustice to the individual complainant.

Transport application decision

27. The Council decided Miss Y did not meet the criteria for transport in line with its post-16 transport policy. The evidence shows the Council followed the correct process, considered Miss Y’s needs, and applied its policy correctly.
28. Miss Y may disagree with the Council’s decision. However, where there is no fault in the decision-making process, we cannot question the outcome.

Record keeping

29. Miss Y’s parent raised concerns the Council referred to Miss Y with the pronoun “his” and not “her” in a decision letter. In addition, the Council referred to a different young person that attended a different course in its stage two bundle of documents. This was poor record keeping and was fault. The faults caused Miss Y uncertainty about whether the Council properly considered her application.
30. The Council recorded it accepted fault for using the incorrect pronoun in the stage two panel hearing. However, it did not apologise to Miss Y in its stage two decision letter.
31. While there are some discrepancies in the Council’s record keeping, I do not consider these affected the outcome of its decision. This is because Miss Y is referred to with the correct pronoun in other correspondence, and the correct course information elsewhere in the stage two bundle. The stage two outcome letter also refers to the correct course, person, and pronoun in its rationale.

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Agreed action

32. Within four weeks of the final decision, the Council agreed to:
• write to Miss Y and apologise for the uncertainty it caused when it referred to Miss Y by the wrong pronoun in its decision letter, and by its incorrect recording of her personal details in its stage two bundle summary; and
• write to staff involved in SEND transport decisions and remind them of the importance of ensuring decision letters and meeting minutes record the correct details of the applicant being considered.
33. The Council will provide us with evidence it has complied with the above actions.

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Final decision

34. I ended my investigation. I found fault and made a recommendation to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman