The investigation

The complaint

Ms X’s complaint

1. Ms X complains the Council failed to consider her individual circumstances and the offer of a Personal Travel Budget (PTB) left her with an unaffordable contribution towards her child’s transport. The PTB was £1,600 per year but the cost of a taxi, which she considered the only viable solution, was £80 per day. Ms X told us she had no alternative but to give up work and drive her child to school. She said losing her job meant she incurred debt, but she also lost a support network and social opportunities she had at work.

2. Ms X also raised concerns over reasonable adjustments requested for the appeal hearing, data handling, and about the way the Council conducted the public consultation on the amended policy.

Ms Y’s complaint

3. Ms Y complained the Council failed to consider that she and her partner have four children, all with additional needs. She says they were already using both their vehicles to transport other children to school and there was no parent available to drive their fourth child to their post-16 educational setting. Ms Y says the PTB was too low to fund a taxi, and the only viable option was to drop off their child late and collect them early. This has caused their child anxiety and meant they missed part of every school day, including special educational provision in their EHC Plan.

4. Ms Y took her complaint to the Secretary of State alongside complaining to us. The Secretary of State found the Council applied its policy too rigidly and had not considered all the relevant circumstances in Ms Y’s case.

5. The Secretary of State directed the Council to review its policy to ensure the part about exceptional circumstances is correctly applied and to ensure the overall policy is in line with the Government’s objective to ensure children can access education without barriers. It asked the Council to re-hold the stage two appeal to reconsider Ms Y’s case. The Council did so and put in place a taxi shortly after the start of the 2024-25 academic year.

6. Ms Y says the Council offered to reimburse mileage and for her to retain the PTB amount as a financial remedy. Ms Y thinks this does not reflect the level of injustice caused over a whole school year.

Ms Z’s complaint

7. Ms Z complained the Council wrongly applied its policy for sixth form learners when her child was an adult learner (over 19). Ms Z says when updating its policy, the Council omitted adult learners, so it had no policy for this age group.

8. Ms Z says the Council offered a PTB, although she did not drive, and her partner worked fulltime. Ms Z said the only option was a taxi and escort. Ms Z arranged shared transport with another family, which cost her £144 per day. The PTB offered was £4,240 per year, a shortfall of over £11,800 per year.

9. Ms Z was successful in getting the decision reversed following a complaint to a Councillor. The Council accepted it had used a policy which did not cover the age group for Ms Z’s child. The Council provided transport in a vehicle and reimbursed Ms Z past expenses. However, it did so because it had used the wrong policy, not because it agreed a PTB was unsuitable. This means a PTB could be offered to Ms Z again at a future review.

Legal and administrative background

The Ombudsman’s role and powers

10. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)

11. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

12. We cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)

13. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.

14. 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)

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

Relevant law and guidance Post-16 transport

16. For learners of sixth form age, the Council has a duty to prepare and publish a transport policy statement specifying the arrangements for transport, or otherwise, it considers necessary to facilitate attendance at education or training as set out in s.509AA Education Act 1996 (‘The Act’). S.509AB requires the statement to explicitly set out the arrangements for students with special educational needs and disabilities (SEND).

17. For adult learners (age 19 and over), the Council has a duty to make arrangements for the provision of transport or otherwise as it considers necessary to facilitate attendance at education or training (s.508F). Where the Council decides transport by a vehicle is necessary, it must be provided free of charge (s.508F(4)).

18. Learners who are age 19 but continuing a course started before the age of 19 fall under the sixth-form duty, not the adult duty (s.509AC).

19. The Government has issued statutory guidance ‘Post-16 transport and travel support to education and training’, 2019 (‘The Guidance’). This says the statutory responsibility for transport rests with councils and the intention of the transport duty is to ensure learners can access education or training of their choice and, if support for access is requested, this will be assessed and provided where necessary.

20. The Guidance says councils must exercise their power to provide transport or financial support ‘reasonably, taking into account all relevant matters’.

21. If a council decides it is ‘necessary’ to provide support to facilitate attendance, they have broad discretion on the type of transport assistance to offer. There is no duty to make a vehicle available, even for a pupil with an EHC Plan or SEND; councils can make alternative arrangements including providing PTBs.(R (on the application of Drexler) v Leicestershire County Council [2020] EWCA Civ 502)

22. The Guidance says councils may ask sixth form learners and their parents for a contribution to transport costs and in exercising this discretion they should ensure any contribution is affordable.

23. The Guidance says councils must publish a complaint or appeal process as part of its transport policy. It says councils should monitor how the policy is implemented throughout the year and they may amend and republish it in-year in response to complaints. The Act (s.509AA(8)) says councils may make arrangements which are not specified in the policy statement which they consider necessary.

24. It is for councils to determine how their appeals process will operate but the Guidance says good practice is to use a similar two-stage process to that for under 16s, for which a recommended process is set out in statutory guidance ‘Travel to school for children of compulsory school age’. This recommends an independent review panel considers complaints at stage two.

25. Appeal decisions should set out the factors considered and why a decision was reached.

26. Under s.509AA(9) of the Act, the Secretary of State for Education may direct a council to make transport arrangements to facilitate the attendance of those of sixth form age, or provide reasonable travelling expenses. There is a similar power for adult learners under s.508L.

Social care

27. Councils are required to provide a range of services to assist family carers of disabled children. Councils have an obligation to assess parent carers on the ‘appearance of need’ (The Children Act 1989, as amended and Breaks for Carers of Disabled Children Regulations 2011). The purpose of a parent carer’s assessment is to sustain their caring role and to support parent carers to work or access education, training, or leisure facilities. Carers of young people over age 18 can have their own needs assessed under the Care Act 2014.

Reasonable Adjustments

28. The reasonable adjustments duty is set out in the Equality Act 2010 and applies to anyone who carries out a public function. Where the duty arises, the body is under a positive duty to take steps or remove obstacles to accessing a service and must make the adjustments if they are reasonable.

How we considered these complaints

29. We have produced this report after examining relevant documents, discussing the complaint with the complainants, making enquiries of the Council, and considering the Secretary of State for Education’s determination of Ms Y’s complaint.

30. We have considered relevant law and guidance including the following caselaw:

• R (on the application of Drexler) v Leicestershire County Council [2020] EWCA Civ 502

• R (S) v Education (Waltham Forest) and the London Borough of Waltham Forest [2006] EWHC 3144

• Staffordshire County Council v JM [2016] UKUT 246 (AAC).

31. We gave the complainants and the Council a confidential draft of this report and invited their comments. We took into account their comments before completing the report.

What we have and have not investigated

32. We have investigated the matters above except for Ms X’s complaint about data handling. It is reasonable for Ms X to refer this to the Information Commissioner who is best placed to determine these complaints.

What we found

Transport decisions and appeals for Ms X, Ms Y and Ms Z

33. The Council revised its transport policy statement for sixth form age learners for the academic year 2023/24. The change meant the Council policy no longer included directly providing taxis and minibuses, except in exceptional circumstances. The default offer was a PTB.

34. The policy included older learners who started their course before age 19 but not adult learners who started their course after age 19. The Council has since acknowledged this was an omission and has amended the policy for 2024/25 to include this group.

35. The policy states that in assessing eligibility, the Council does not consider financial circumstances, family or work commitments, single parent families, temporary fragmentation of the family, receipt of state benefits or families moving to a new house who wish for their child to remain at their existing school or college.

36. The Council produces appeal forms which include questions about personal and family circumstances, work arrangements, alternative means the families has explored to get their child to school or college, any disability of family members, any outside support the family could rely on, and invited reasons why the family considered their case ‘exceptional’. The three complainants all completed these forms at stage one and two.

37. Bands and calculations for the PTB are set out in the policy based on distance travelled. The policy states the PTB ‘is not designed to cover the cost of a taxi in its entirety; rather, a PTB is the Council’s contribution towards meeting any travel costs’.

38. The policy sets out examples of how a PTB can be used including: to drive a child in a parent’s car, car share with other parents, pay for childcare or breakfast clubs so a parent can take a child to school, or arrange for a friend or relative to take the child to school.

39. The policy says the Council will consider directly providing taxi or minibus transport only in ‘exceptional circumstances’, and gives two examples:

• a learner has complex medical needs that require a specialised vehicle and/or medically trained support staff.
• medical or health reasons why a parent/carer cannot manage a PTB.

40. The Council’s policy provides a two-stage appeal process and the use of an independent stage two panel.

41. The appeals for all three complainants were declined on the grounds of insufficient evidence showing medical needs or exceptional circumstances and the offer of a PTB upheld. Similar wording was used in all decision letters.

42. The clerk’s notes of the appeal hearings indicate the appeal documentation gave prominence to asking the panel whether it believed the learner had complex medical needs that required specialised travel assistance, or if there were medical or health reasons why a parent/carer could not manage a PTB/mileage allowance.

Conclusion

43. In R (S) v Education (Waltham Forest) and the London Borough of Waltham Forest [2006] EWHC 3144 the Court said decisions about the type of transport support required a ‘careful and sensitive assessment, based so far as possible on reliable information or evidence’. The Court identified relevant factors to assist councils:

• The effect of having to drive on the young person or the parent.

• The effect on the young person and their wellbeing.

• Cost.

• Whether shared transport is impractical.

44. The Court noted these factors were ‘not necessarily exhaustive’ and it will be for councils ‘to consider any matter which is put before them or which they consider relevant in making the assessment required’. The Court recognised the need for exceptions and that for some students the only appropriate provision would be expensive.

45. We found the 2023/24 policy wording implied the Council had no duty to provide transport support to any post-16 learner, this was entirely discretionary, and the responsibility fell solely on parents. We found this went further than the Act, Guidance and caselaw which supports there is a residual duty on councils in ‘cases of real need’ or where it would not be ‘reasonable’ for a parent to drive their child to school. (R (on the application of Drexler) v Leicestershire County Council [2020] EWCA Civ 502,R (S) v Education (Waltham Forest) and the London Borough of Waltham Forest [2006] EWHC 3144)

46. The Council referred to parental responsibilities to ensure children of compulsory school age receive suitable full-time education (s.7 the Act) and wrongly applied this to learners above age 16. We are pleased to note the Council has removed this wording from its revised policy.

47. In some documentation the Council stated it would never consider a parent’s work, caring or family commitments, but elsewhere it said it considered all circumstances on a case-by-case basis. The Council included questions about work and other commitments on the proforma appeal documents and created a legitimate expectation these matters would be considered.

48. The Council has now accepted its policy wording was not sufficiently clear that all relevant individual circumstances are considered as part of the exceptional circumstances criteria. It has clarified in the 2024/25 policy, that it considers all individual circumstances and not just health or medical reasons.

49. The Council told us it intends to continue to include wording that it would not ordinarily consider the following as being exceptional circumstances individually: work commitments, other caring responsibilities, household income, lack of a vehicle or an inability to drive. It says a family with a number of these circumstances could be classed as exceptional. If we received a complaint that the Council required a family to have several exceptional circumstances, we would be likely to consider the Council was fettering its discretion and failing to properly consider all the applicant’s circumstances.

50. We found in all three cases the Council and appeal panel applied the two examples of exceptional criteria in its policy (complex medical need of learner or inability of parent to manage a PTB) as the only exceptions and did not consider all relevant factors. This was fault and mirrors the findings of the Secretary of State which said the Council was applying rigid criteria and failing to consider all relevant circumstances.

51. We found the Council and appeal panel did not consider work or other care commitments for the three complainants or explain why a PTB was suitable for an applicant who could not drive and did not have a car or where the vehicle was being used for another child. While officers / the panel had all this information brought to their attention, this is not the same as giving the circumstances careful consideration and providing clear reasoning why a PTB was considered appropriate given the circumstances presented.

52. The Council’s 2023/24 policy wrongly implied parents were always fully responsible for the cost of transport and the PTB was a ‘discretionary’ contribution towards parents’ costs. The Council is accurate to say a PTB does not need to cover the full cost of transport, but any contribution by the family must be affordable.

53. We found the Council and appeal panel did not consider cost or affordability for any of the three complainants. This was fault. In some cases, the only option may be to provide a more expensive alternative to a PTB, because it is not reasonable in the circumstances that a PTB will facilitate attendance at education. What is affordable is an issue for consideration on the individual facts of each case.

54. We found panel members were unaware they could depart from the Council’s policy. The Guidance makes clear a policy cannot envisage every scenario and an appeal panel is not restricted by it.

55. In response to a draft of this report, the Council accepted it did apply restrictive criteria which gave rise to fault in the decision-making for Ms X, Ms Y and Ms Z.

Council’s consultation on new policy

56. The Council consulted on the proposed policy in Autumn 2022. It was approved by the Council in Spring 2023 and implemented in September 2023. The consultation was publicised in several ways including providing information to all schools and colleges with pupils accessing home to school travel assistance. The Council held five public events and eleven young people engagement events.

Conclusion

57. We have found no fault in the way the Council conducted the public consultation for the amended policy.

Reasonable adjustments for Ms X

58. Ms X told the Council she needed to record the appeal hearing due to her disability and use her own assistive technology.

59. The Council said it was not its usual policy to offer remote hearings and it did not permit recordings as this was intrusive and risked being shared on social media. The Council said it would make adjustments by providing a live scriber at the hearing to take verbatim notes and allow sufficient breaks within the hearing for Ms X to process what has been said and for the Chair to provide updates and clarification during the hearing. Ms X could use her own laptop/tablet to read documents provided. The Council said it would provide a copy of transcribed notes after the hearing and a representative could present the case on her behalf.

Conclusion

60. The Council had a duty to provide reasonable adjustments to allow a disabled person to access the appeal hearing. It considered Ms X’s requests and offered adjustments. These were not the exact adjustments Ms X had requested, but the Council has justified its decision.

61. We have found no fault in the way the Council considered Ms X’s request and cannot question the decision it reached.

Social care

62. We asked the Council why no social care or carers assessment was offered to Ms X, for example to support her employment. The Council told us the Home to School Travel Service does not have the ability to provide social care or a carers assessment but where parents seek assessment they can be signposted appropriately. It says all staff are trained to make appropriate safeguarding referrals.

Conclusion

63. The Council had a duty to offer assessments to parent carers on the ‘appearance of need’. We would expect transport officers dealing with SEND transport applications to signpost carers to appropriate support, particularly where a transport decision may impact a parent carer’s employment. We do not consider the Council should rely on knowledge of legal entitlements by families. Training in safeguarding is a separate issue from identifying parent carers who may need support to access employment, training or leisure activities.

Injustice

64. The Council has now accepted fault in its decision-making impacted Ms X, Ms Y and Ms Z.

Ms X

65. The Council offered to review Ms X’s case, but she wished to await the outcome of our investigation, and her situation then changed. Ms X still has the uncertainty of whether the Council’s decision may have been different for four previous terms if the decision had been made without fault.

Ms Y

66. The Council reviewed Ms Y’s case and overturned its previous decision, but only after the intervention of the Secretary of State a year later.

67. Ms Y provided additional care and support by driving her child to school for 12.5 months before her decision was reversed. Ms Y says this took 50 minutes a day and she did the journey 124 times. Ms Y says her child has missed registration and form time every school day and sometimes would not go into the building when they arrived late and so missed the entire day. The School says form time is a crucial part of the day when key staff are available to provide support to students with their wellbeing, planning, friendships and ensuring the student is ready to learn. It can also include therapy or physical activity. Ms Y says since transport has been provided attendance has increased from 51% to 87%.

68. The Council offered Ms Y a symbolic financial remedy of £1,590.30, being the amount of the PTB, mileage reimbursement, and a £250 time and trouble payment.

Ms Z

69. Ms Z had her case reviewed and the decision reversed within a few months.

70. Ms Z paid privately for a taxi and escort and the Council fully reimbursed her costs.

Recommendations

71. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. We have set out below the actions the Council should take to remedy the injustice to Ms X, Ms Y and Ms Z and those people who are also caused an injustice by the Council’s fault.

72. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended.

73. To remedy the injustice caused to each complainant, within one month of this report we recommend the Council should:

Ms X

• Apologise to Ms X for the impact of the fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apologies we have recommended in our findings.

• Pay Ms X £1,000 to acknowledge the time, trouble, distress and avoidable uncertainty caused by the fault and incurred during the complaint process.

Ms Y

• Apologise to Ms Y for the impact of the fault.

• Pay Ms Y £250 to acknowledge the time, trouble, distress and avoidable uncertainty caused by the fault and incurred during the complaint process.

• Pay Ms Y £1,240 for the additional care and time spent driving her child to school when the Council should have provided a vehicle.

• Pay Ms Y mileage expenses for 124 days of attendance.

• Pay Ms Y, on behalf of her child, £1,600 to acknowledge the missed education and impact on their attendance.

The Council may deduct from the above, the financial remedy and PTB it has already paid Ms Y.

Ms Z

• apologise to Ms Z for the impact of the fault.

• Pay Ms Z £150 to acknowledge the time, trouble, distress and avoidable uncertainty caused by the failure to properly consider her application at the initial stages or at appeal.

Others potentially affected

74. We consider that a member of the public who has not complained to us may have suffered an injustice because of the faults in the Council’s transport decision and appeal process. (Local Government Act 1974, section 26D and 34E, as amended). Within one month of our report, we recommend the Council should:

• Issue a notice on the Council’s Home to School transport website for all post-16 learners who applied for transport between April 2023 and July 2024 to contact the Council if they consider their application was incorrectly assessed. The Council will reassess their application against its revised post 16 transport policy issued in July 2024.

Service Improvement

75. We recommend within three months of our report, the Council should:

• Ensure all decision makers are aware of the need to consider the individual circumstances of each case, of the Council’s residual duty in cases of ‘real need’ and that officers and panel members know they can depart from the published policy if necessary to facilitate attendance in a particular case. We suggest the factors in R (S) v Education (Waltham Forest) [2006] EWHC 3144 provide a useful guide to assist decision makers.

• Ensure decision makers make brief notes to show how they have considered the individual circumstances, including cost and affordability.

• Provide guidance to transport staff to signpost parent carers to social care for needs assessments proactively.

  The Council has accepted these recommendations to remedy the complaint. The Council has also carried out the following actions to remedy the complaint:

• Reviewed Ms Z’s case.

• Re-assessed Ms Y’s case in line with the Council’s revised policy.

• Carried out a review of the Council’s post-16 statement and implemented recommendations.

• Published a revised policy.

• Reviewed the Council’s stage two appeals process, documents and information for parents.

• Provided training for Appeal Panel Members on the revised policy.

Decision

76. We have completed our investigation into these three complaints. There was fault by the Council which caused injustice to Ms X, Ms Y and Ms Z. The Council should take the action set out above to remedy that injustice.

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