Summary: Mr X complained the Council wrongly asked him for a contribution to his son’s post-16 school transport. There was fault with how the Council took too long to issue a final EHC plan for Y and how it decided whether to charge a contribution towards Y’s school transport costs. It agreed to review its decision, apologise for the distress caused to Mr X and Y, and pay them a financial remedy.

The complaint

1. Mr X complains the Council has wrongly asked him to pay towards his son, Y’s, post-16 school transport despite Y having an Education Health and Care plan. He says the Council should not charge for Y’s transport, because he is likely to be entitled to free transport when he is an adult.
2. As a result, Mr X says he has suffered a financial loss and both he and Y have been caused avoidable frustration and worry. He wants the Council to provide transport for Y for free.

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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. We consider whether there was fault in the way an organisation made its decision. 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
7. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
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)

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What I have and have not investigated

9. I have not investigated how the Council explained its transport policy or assessed Y’s transport needs while planning for his transition to post-16 education. Any failure to do this would have resulted in Y’s Education Health and Care (EHC) plan not properly setting out his needs or the provision required to meet those needs. Mr X had the right to appeal any EHC plan the Council issued to the SEND Tribunal. There is no evidence it would have been unreasonable for Mr X to have used his appeal rights. Therefore, since Mr X had a right of appeal about the content of Y’s EHC plan, and I am satisfied it would have been reasonable for him to have used that right, I cannot investigate how the Council prepared Y’s EHC plan.
10. I have investigated how the Council:
• assessed Y’s eligibility for school transport and whether to charge Mr X a contribution;
• how it considered his complaint about its decision; and
• how it communicated with Mr X

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How I considered this complaint

11. I considered:
• the information Mr X provided both in writing and by telephone;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law, guidance and Council policy.
12. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
13. 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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What I found

Education health and care plans

14. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this. 
15. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. The process is only complete when the council issues a decision about the review.
16. Where the council proposes to amend an EHC Plan, the law says it must send the child’s parent or the young person a copy of the existing (non-amended) Plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. (Section 22(2) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.194). Case law sets out this should happen within four weeks of the date of the review meeting.
17. For young people moving from secondary school to a post-16 institution or apprenticeship, the council must review and amend the EHC Plan – including specifying the post-16 provision and naming the institution – by 31 March in the calendar year of the transfer.
18. There is a right of appeal to the Tribunal against the description of a child or young person’s SEN, the special educational provision specified, the school or placement, or any amendment to these elements of an EHC Plan.

Post-16 school transport

19. There are two main types of transport for post-16 education, depending on the age of a young person or adult, and when they started their course.
20. Where a young person above compulsory school age, but under 19, starts most courses of education, the law describes them as a ‘person of sixth form age’. They continue to be a person of sixth form age until they turn 19, or until they finish their course of study, whichever is later.
21. The law says councils must make suitable arrangements for transport, or other alternative support, to allow people of sixth form age to access education or training of their choice. The law and statutory guidance (Post-16 transport and travel support to education and training – Department of Education) says councils can ask young people or their parents for a contribution towards any transport it arranges.
22. For some adults 19 years and older, councils must make suitable arrangements to allow them to attend education at certain types of education placements. The guidance says the intention of this duty is so that “those with the most severe disabilities with no other means of transportation are able to undertake further education and training after their 19th birthday to help them move towards more independent living.” Councils have the same duty to adults who have an EHC plan (up to the age of 25) for any education placement a council arranges for them. Transport provided under this duty to adults must be free of charge.
23. The guidance also says that, when considering whether to charge a person of sixth form age “it would be good practice not to charge a contribution for transport for a young person assessed under the sixth form age duty if it likely that they will be eligible for free transport under the adult transport duty.”
24. The Council’s policy on post-16 school transport says it will arrange school transport for most students aged 16-18 in its area. It expects all post-16 students to contribute towards the costs of this transport, but charges students with a EHC plan a lower rate and discounts this further for some students who previously received free school meals.
25. The policy also says:
• it will pay the full cost of transport for people agreed 19-25, where their need for transport is set out in their EHC plan;
• travel arrangements will be discussed with families and young people when looking at the student’s options for post-16 education;
• the travel needs of students with special educational needs should be reassessed when a young person moves from compulsory schooling to post-16 education and again when they start a new course;
• the Council will arrange an assessment in Year 11, when a young person’s transition to post-16 education is being planed; and
• the Council will consider exceptional circumstances and can arrange for transport outside its published policy where it considers this necessary.

What happened

26. Mr X’s son, Y, has special educational needs and an EHC plan from the Council.
27. Y was due to transfer to post-16 education in September 2023. To prepare for the move, Y’s school carried out a review of his EHC plan in late 2022. Mr X chased the Council for an update following the review several times in early 2023 but did not receive a response from the Council.
28. In April 2023 Y was offered a place at his preferred school, and the Council issued a draft EHC plan, setting out its proposed changes in April 2023. The Council also advised Mr X to apply for post-16 school transport before the Council’s usual deadline at the end of May 2023.
29. Mr X applied for transport for Y, but raised concerns with the Council that Y was not attending his closest school and that he did not think he should pay a contribution towards the costs of Y’s transport because Y’s circumstances were exceptional.
30. The Council told Mr X in mid-July 2023 it would provide transport to Y’s preferred school, but that it still expected Mr X to pay the contribution at the lower rate for young people with an EHC plan. Again, Mr X told the Council he believed Y’s circumstances were exceptional and therefore he did not think he should pay the contribution. He also told the Council nobody had discussed transport options with him at the annual review in 2022 and the Council had failed to review Y’s transport needs in line with its policy.
31. Mr X chased the Council for a response in late July 2023, shortly after the Council issued Y’s final amended EHC plan. At that time Mr X told the Council its failure to address Y’s travel needs at the review meant he had not been able to ask for these to be included in Y’s EHC plan and for the Council to cover the full cost.
32. Mr X complained to the Council about these issues in August 2023, when the Council responded informally. Mr X then made a formal complaint in September 2023, as he was not satisfied with the Council’s informal response. In its final response to Mr X’s complaint the Council:
• accepted he had not been informed about the change in transport policy when planning for Y’s transfer to post-16 education;
• said it still proposed to charge the Mr X the contribution towards Y’s transport; and
• disagreed it had failed to follow the statutory guidance as, when he started his course, Y would be under 19 years old, so the duties for 16-19 year olds applied.

My findings

Information about post-16 transport and assessing Y’s travel needs

33. As explained above, I cannot investigate anything Mr X could have appealed to the SEND Tribunal. This includes how the Council decided what to include in Y’s EHC plan, since Mr X had the right to appeal the content of that final plan. The evidence shows Mr X was aware, shortly after the Council issued Y’s final amended EHC plan in July 2023, that he might have asked for different provision if the Council had told him about how post-16 school transport worked or reassessed Y’s travel needs. Since the result of any such failure would have been that Y’s EHC plan did not contain all the support Mr X said he needed, and Mr X could have appealed this to the Tribunal, I cannot investigate these issues.

Charging for Y’s sixth form school transport

34. The Council is entitled, both under the statutory guidance and its own policy, to charge Mr X a contribution towards the transport it arranged for him. It is not the Ombudsman’s role to decide whether the Council should charge Mr X, that is the Council’s responsibility. Our role is to decide whether the Council made this decision properly and considered all the relevant evidence.
35. The evidence shows there were several failures in how the Council made its decision about whether it should charge Mr X:
• The Council failed to properly consider the statutory guidance, including whether it was likely Y will receive free education transport as an adult. Although Y’s current course is expected to end before he reaches the age of 19, there is no evidence the Council considered Y’s situation after this. For example, it did not consider Y’s future plans after his current course or whether those plans meant that he would likely be entitled to free transport. Without considering that question, the Council could not decide whether to follow the statutory guidance and whether it should still charge while Y was under 19.
• The Council failed to explain how it had considered whether Y’s circumstances were exceptional. Although Mr X told the Council why he believe this, the Council did not address these issues in its response to Mr X’s complaint.
• There is no evidence the Council explained to Mr X how he could appeal the Council’s decision, despite him directly asking about this.
36. Since the Council did not explore either of the first two points above, I cannot say what difference that would have made. Therefore, the Council should review its decision about whether to charge Mr X, including assessing whether Y will likely receive free transport as an adult and any details or evidence Mr X provides about why he believes there are exceptional circumstances.

Delays after the annual review

37. The Council should have issued Y’s amended EHC plan by the end of March 2023, since this was to prepare for his transfer to post-16 education from September. However, the Council did not issue a draft EHC plan until April 2023, or the final amended EHC plan until July 2023. The delays were fault.
38. While this did not cause any delay to Y starting at his preferred post-16 placement, I am satisfied these delays caused Mr X avoidable frustration and Y avoidable distress and worry. Given Y’s special educational needs and that the move to post-16 education is a significant step in a young person’s education, I am satisfied the distress caused to Y justifies a financial remedy. I address the injustice to Mr X below.

Communication

39. The evidence shows the Council’s communication both after the annual review meeting in late 2022 and when applying for school transport was poor. There are several examples of the Council failing to reply to some of Mr X’s emails and delays in responding to others. The Council also did not keep Mr X up to date when staff assigned to Y’s case changed or about what arrangements it would be making for Y’s transport from September 2023. Those failures were fault.
40. I am satisfied the Council’s poor communication during this time, along with the delays issuing a final EHC plan, caused Mr X avoidable distress and frustration, and that this justified a financial remedy.

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Agreed action

41. Within one month of my final decision the Council will:
• carry out a stage two appeal, under its school transport policy, of its decision about charging Mr X a contribution to Y’s school transport. It should properly explore whether Y is likely to receive free transport when he is an adult and any exceptional circumstances Mr X puts forward. It should provide Mr X with a written reasons, setting out how it has made the new decision;
• apologise to Y and Mr X for the distress caused by the fault set out above;
• pay Y £200 to recognise that distress; and
• pay Mr X £300 to recognise that distress and the frustration caused by its poor communication with him.
42. Within three months of my final decision the Council will review how it makes decisions under its school transport policy for young people with an EHC plan. It should ensure it considers whether applicants are likely to receive free transport as an adult and, if so, whether it is still appropriate to charge a contribution, considering the statutory guidance.
43. 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 apology I have recommended in my findings.
44. The Council should provide us with evidence it has complied with the above actions.

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Final decision

45. I have completed my investigation. There was fault with how the Council took too long to issue a final EHC plan for Y and how it decided whether to charge a contribution towards Y’s school transport costs. It should review its decision, apologise for the distress caused to Mr X and Y, and pay them a financial remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman