Summary: Mrs Y disagrees with the Council’s decision to refuse to provide transport assistance for her son, F, to attend the college named in his Education Health and Care (EHC) Plan. She says F attends the nearest suitable college to his home address, but the Council says there is one closer. We find the Council failed to explain the implications of naming Mrs Y’s preferred college in F’s EHC plan. We also find the Council failed to properly consider whether the other college offered a course at the required level for F. The Council will implement the remedial actions listed at the end of this statement.

The complaint

1. Mrs Y complains about the Council’s decision to refuse funded transport for her adult son F to attend college. Mrs Y appealed the Council’s decision, but her appeal was not successful because the Council said F does not attend the closest establishment that can meet his needs.
2. The Council says Mrs Y expressed a parental preference for F to attend a college further away which it agreed to on the basis she would fund F’s transport.
3. Mrs Y says the Council’s decision has caused avoidable distress to the family and is affecting F’s wellbeing and safety.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. During my investigation I discussed the complaint with Mrs Y and considered any information she provided.
7. We made enquiries of the Council and considered the response.
8. I consulted any relevant law and guidance which I have referred to in this statement.
9. Mrs Y and the organisation had an opportunity to comment on my draft decision. I considered their comments before making this final decision.
10. 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

Eligibility for transport

11. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider it necessary to make to facilitate attendance at education or training and the financial help available for:
• learners of sixth form age (aged 16-19 if they started the course before their 19th birthday); and
• learners with EHC plans up to the age of 25 who started their programme of learning before their 19th birthday. (Education Act 1996 section 509AA).
12. In considering whether it is necessary to make transport arrangements, a council must consider (amongst other things) the nature of the route, or alternative routes, which the person could reasonably be expected to take. (Education Act 1996, section 509AB)
13. The duty relates to young people of sixth form age with special educational needs and disabilities aged up to 19. It may go beyond the age of 19 if the student is continuing a course started before that age. The transport policy must include transport arrangements for this group of students.
14. The statutory guidance says a learner with special educational needs and disabilities may take longer to complete a programme of learning or training and so it is good practice for council to extend transport arrangements until a learner has completed their programme even if that is after they reach the age of 19.

Nearest establishment

15. If only one school or college is named in a young person’s EHC plan, then that is the establishment the council has determined is the nearest suitable. It is therefore the nearest ‘qualifying’ school or college for the young person to attend for transport consideration. This is because the council has not arranged for the young person to attend a closer school or college. (S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346.) Where the child is attending the ‘nearest suitable school’, they will qualify for free transport, provided any other relevant conditions are met.
16. The Court of Appeal considered the test councils should apply when deciding whether it can refuse to name a parent’s choice of establishment in Section I of an EHC plan due to the additional costs of transport being an inefficient use of resources. If the council finds both establishments are suitable, it should compare the whole cost, including the cost of providing transport to either establishment. If the council concludes the parent’s choice compared to the council’s choice is an inefficient use of its resources, then it can name two establishments in the EHC plan.
17. In another case, the courts found that even though a parent’s choice was more expensive than the council’s, it was not an automatic barrier to the efficient use of resources test. The council or Tribunal must balance the extra cost against any extra benefit it is claimed the more expensive placement will bring to the young person. (Essex CC v SENDIST [2006] EWHC 1105 (Admin))
18. Although transport should not normally be recorded in a child’s EHC plan, when the council names the parent’s preferred school on the condition that the parent arranges or pays for the travel, they may set out this condition in Section I.
19. It is important for the transport and special educational needs teams to work closely together and to engage with one another early in the process for drawing up and changing EHC plans.
20. The statutory guidance says councils should make clear to the parent that they may review the placement named in the EHC plan if the parent becomes unable or unwilling to arrange or pay for the travel. The guidance recommends that the local authority records this information in a formal letter to the parent.

What happened

21. F has special educational needs and accesses the post-16 college provision named in his EHC plan issued on 4 April 2023. I will call this College A. The Council included a clause in F’s final EHC plan which says:

“The LA accepts that this college would be suitable. However it is not the nearest suitable college and the LA considers that it would be incompatible with the efficient use of its resources if it had to provide or fund home to college transport to this college. That being so the LA, having taken into account paragraph 9.214 of the Special Educational Needs and Disability Code of Practice: 0 to 25 years; and has agreed to name the college on the express condition that you accept and continue to accept liability for arranging and funding home to college transport”.

22. Before the Council issued the final plan, it consulted with three other local colleges in February 2023: College B, College C and College D.
23. College B responded to the consultation to say it had spaces but could not meet F’s needs for several reasons.
24. College C said it had spaces but could not meet F’s needs.
25. College D responded on 25 April 2023; 21 days after D’s final EHC plan had been issued naming College A. The consultation response said College D could not meet F’s needs.
26. Mrs Y applied for transport assistance because she said there was no other college closer to the home address which offered an appropriate course for F and could meet his needs. The Council refused Mrs Y’s transport application.
27. Mrs Y submitted a formal complaint about the Council’s decision in June 2023. The Council responded to the complaint at stage one and in summary it said:
• although there was a closer college offering the same course, College B, it refused to admit D because it could not meet his needs;
• the Council did not challenge College B’s refusal because Mrs Y had expressed a preference for College A which was further away. That college could meet F’s needs and the Council named it on the EHC plan; and
• the Council apologises for not explaining the implications of this to Mrs Y before finalising F’s EHC plan.
28. The Council consulted College D again in August. College D responded to say it did not offer the course F wanted to study but could offer a place within its ‘base provision’ to study towards a supported internship programme.
29. Mrs Y appealed against the Council’s refusal of transport assistance. The Council arranged for its appeal panel to review the decision. The hearing went ahead on 25 October 2023 and the Council wrote to Mrs Y with the outcome on the following day. In summary, the letter said the panel:
• decided the Council’s transport policy was correctly applied in F’s case because F is not attending the nearest establishment which can meet his needs. There is another college, College D, which is closer to Mrs Y’s address and has space for F;
• considered Mrs Y’s argument that College D did not offer the level of provision which F needed and would therefore be a backward step for his progress;
• considered the length and complexity of F’s journey to College A; and
• decided there were insufficient grounds to justify the application of exceptional circumstances and to award transport for F to continue attending College A. The panel did not uphold Mrs Y’s appeal.
30. Dissatisfied with the outcome, Mrs Y approached the Ombudsman.

Was there fault in the Council’s actions causing injustice?

31. Having considered the available information, it is my view that there is fault in how the Council and panel considered Mrs Y’s request for transport assistance.
• The panel refused the appeal on the basis that College D was the nearest establishment that could meet F’s needs. The documents show College D did not respond to the consultation on time. The response arrived after the Council had finalised and issued F’s plan naming College A. Therefore, it is not known how the Council could be certain there was a closer college with space which could meet F’s needs and that this was discussed with Mrs Y before finalising the plan. Furthermore, when College D did respond in April, it refused to offer a place to F.
• Although the Council consulted College D again in August, and just a matter of days before the start of term, the college maintained its refusal for F’s preferred course of study but offered a different type and level of programme. There is no evidence to show how the Council considered whether College D offered the required level of provision for F and that this option was discussed with Mrs Y.
• There appears to be confusion amongst panel members about the options available for F. The appeal panel notes say, “[F] can do an animal care course at [College D]”. This is contrary to College D’s consultation responses which said it could not offer an animal care course for F.
• The statutory transport guidance says that councils should write to parents setting out the process to be followed if the parent becomes unwilling or unable to continue funding transport. There is no evidence of any such letter or discussion taking place in Mrs Y’s case. To the contrary, Mrs Y emailed the Council in August setting out her concerns about the implications of F relying on public transport to get to College A.
• The Council failed to properly communicate with Mrs Y during EHC plan discussions. It failed to explain how F’s college choice would affect transport provision. This meant Mrs Y lost the opportunity to make an informed decision about the college or course. Mrs Y only became aware of a requirement to fund F’s transport once she received the final EHC plan. There is uncertainty around whether Mrs Y would have expressed a preference for College A had she known the Council would not provide transport assistance.
• The Council accepted Mrs Y’s corporate complaint and responded at stage one. When she raised a second complaint at stage two, the Council did not respond causing Mrs Y frustration and confusion.

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Agreed action

32. Within four weeks of our final decision, the Council has agreed to:
• apologise and pay £100 to Mrs Y for the time and trouble and lost opportunity caused by the fault identified in this statement. We recommend the apology letter to be written in accordance with our Guidance on making an effective apology;
• properly reconsider F’s application for transport assistance. The Council should specifically consider whether the course offered at College D in August 2023 is at the required level for F and therefore one which could have been named in Section I of his EHC plan;
• if the Council maintains its decision, it should offer a fresh appeal with a new panel and clerk (in person where appropriate). The panel should be made aware of any differences between the level of course on offer at College D when compared with College A;
• if the Council decides F is eligible for transport assistance, it should refund any transport or fuel costs caused because of the fault. The Council should make any refund within four weeks of the new decision; and
• if the Council decides F is eligible for transport assistance, it should make a payment of £300 in recognition of F’s avoidable distress. The Council should make any refund within four weeks of the new decision.
33. Within eight weeks of our final decision, the Council will also:
• remind staff about the importance of providing clear and consistent information about any possible transport implications from naming parental preference in Section I. Staff should also be reminded of the requirement to notify parents in writing of the possible need to review an EHC plan in the event the parent becomes unwilling or unable to fund the transport to their preferred placement. The Council should provide evidence of this to the Ombudsman via a briefing paper or proof of staff training.
34. The Council will provide us with evidence it has complied with the above.

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Final decision

35. We have completed the investigation with a finding of fault causing injustice for the reasons explained in this statement. The actions agreed in the section above will provide an appropriate remedy for the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman