Summary: We found fault by the Council on Mr Y’s complaint about the way it dealt with his application for post-16 Travel Assistance and appeals. It failed to properly consider them and give full reasons for its decisions. It also fettered its discretion. This caused distress as Mr Y does not know if the outcome would have been different but for the fault. The agreed action remedies the injustice caused. This included sending an apology, arranging a fresh appeal hearing, and issuing fresh guidance to relevant officers.

The complaint

1. Mr Y complains about the Council’s handling of his application for post-16 Travel Assistance for his daughter to get to school and back and it failing to:
1. arrange an independent review and appeal process against its decisions;
2. properly consider, decide, and explain its decision on his application; and
3. tell him about the next stage of the appeal process.
2. As a result, he is now paying £500 a month in transport costs for his daughter’s travel to and from school. In addition, his son is having to escort her there and back.

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The Ombudsman’s role and powers

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)
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. 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.
6. 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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How I considered this complaint

7. I considered evidence provided by Mr Y, the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council. I considered their responses.

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What I found

Council’s Travel Assistance Policy for Learners aged 16 to 25 (September 2024)

8. The Council has no legal duty to provide free or subsidised travel assistance to young people of sixth form age. It does have a duty to review, prepare, and publish an annual transport policy by 31 May each year. This explains what transport and travel arrangements there are for them locally.
9. ‘Cognus’ is a non-profit Local Authority Company wholly owned by the Council. The policy and budget are set by the Council but administered by Cognus on its behalf.
10. The Council will only provide travel assistance where it considers that ‘travel assistance has been demonstrated as necessary to enable you to reasonably access their education or training provision’.
11. When assessing the need for travel assistance, the Council will consider: the distance between home and the nearest suitable school/college; evidence of attending a full time course and there was not a suitable alternative course closer to the home; special educational needs and disabilities; physical, medical, or communication difficulties which prevent safe use of public transport; vulnerability; whether the needs prevent parents from providing transport; the efficient use of the Council’s resources. This is not an exhaustive list. Meeting one or more of the criteria does not automatically allow entitlement. Each case is considered on its merits.
12. The Council has a two stage home to school travel assistance review process for parents/young people who wish to challenge a decision. This involves:

• Stage 1: A written request for a review needs receiving within 20 working days of the Council’s decision. Within 20 working days of receipt of the request, a senior officer will review the original decision and send a written outcome setting out the nature of the decision reached, detailed reasoning for how the decision was reached, and how to go to Stage 2; and
• Stage 2: A written request to escalate the Stage 1 decision to Stage 2 needs receiving within 20 working days of the Stage 1 decision. Within 40 working days, an appeal panel will consider written and verbal representations and officers will review the original decision. The panel members will be independent of the original decision-making process to date and be suitability experienced to ensure a balance is achieved in meeting the applicant’s needs, meeting the Council’s requirements, and ensuring road safety requirements are met. A detailed written outcome is sent setting out the nature of the decision reached, detailed reasoning for how the decision was reached, and information about escalation to the Local Government and Social Care Ombudsman.

Statutory guidance: Post-16 transport and travel support to education and training (January 2019)

13. Statutory responsibility for transport for 16-19 year old rests with local authorities. They have a duty to prepare and publish an annual transport policy statement setting out the arrangements for the provision of transport, or otherwise that the authority considers necessary, to make to facilitate the attendance of applicant persons of sixth form age receiving education or training.
14. The intention of the sixth form age transport duty is to ensure learners are able to access the education and training of their choice and, if support for access is requested, this will be assessed and provided where necessary.
15. The authority must have regard to:

• The needs of those for whom it would not be reasonably practicable to access education or training provision if no arrangements were made;
• The distance from the learner’s home to establishments of education and training;
• The cost of transport to the establishment in question: it is expected to target support to those who need it most, particularly those with a low income; and
• Alternative means of facilitating attendance.

16. Complaints and appeals must first be taken up with the authority and then on to us or to the Secretary of State for Education.

What happened

17. In June 2024, Mr Y applied for Assisted Travel for his 17 year old daughter, Z, to travel from home to her new school in September. She has an Educational, Health and Care (EHC) plan naming the school. She needed to travel to school every day to do her Post-16 course. On the application, Mr Y said she could not walk to school and nor could she physically travel by public transport to get there. It was also not possible for someone to accompany Z to school as both Mr Y and his wife work. Neither could afford to take time off to do it. He provided no other information or evidence in support of the application.
18. The Council refused the application in July (Decision 1). It listed all the considerations set out in its Travel Assistance Policy (the policy). The letter told him, based on the information supplied, there was ‘insufficient evidence to suggest that [Z’s] needs prevent a parent or carer from arranging transport to school or college’. The Council accepted Decision 1 did not provide enough information about how it considered the application. The letter was signed by the Assisted Travel Team. There were no minutes for this panel meeting.
19. Mr Y appealed Decision 1. This time he sent evidence in support which included a copy of a school report. This said Z was not an independent traveller and needed support to use public transport. He also sent her EHC plan naming this school. This identified Z as appearing to be vulnerable to exploitation, bullying, and manipulation by other children due to her lack of understanding in social situations, especially in unstructured times of the day. She also had little understanding of money.
20. In his appeal, Mr Y explained they were working parents, described the new school and its remote location which had no safe walking route, as well as her previously receiving help getting to the school she had left.
21. In September, the Council wrote to Mr Y explaining his appeal had failed (Decision 2). It told him a panel of senior officers considered the appeal. It took account of the family’s current circumstances, special educational needs, disability law, Department for Education guidance, and its own policy. It noted Mr Y’s submission that neither parent could accompany Z.
22. Decision 2 referred to a statement on the application form which said parents were legally responsible for making sure their child regularly attended school. This included doing everything they reasonably could to allow the child to get there. The Council would only provide help if there was no alternative for the child to attend school. The absence of a car, other siblings, work, and study commitments would not be considered alone as a basis for help.
23. It concluded that based on the application, appeal letter, and supporting evidence, there was insufficient evidence to suggest Z’s needs prevented a parent or carer from arranging transport or accompanying her. It also said the panel addressed his complaint about Decision 1 being too generic. As a result, the panel responded to each of the points set out in his appeal letter. The panel noted:

• The school report of July 2024: While it accepted Z could not travel independently due to her needs (as set out in the school report), this did not prevent her parents from making arrangements or accompanying her.
• Her EHC plan: The panel found evidence in it of Z not being able to independently travel. Again, this did not prevent her parents from making arrangements or accompanying her.
• Working parents: Work and other care commitments cannot be considered as a basis for help.
• The school and logistics: While the school was named in her EHC plan, and the panel noted the distance was within the statutory walking distance, it again made the point about this not preventing the parents from helping.
• The previous school and assisted travel: The panel noted this was further than the new school but said the Council was ‘applying increased scrutiny of eligibility to ensure young people who have no other access to means of transportation can access education’.

24. This was again signed by the Assisted Travel Team. The Council explained the panel asked the Assisted Travel team to pass on correspondence to appellants. It said this was not prevented by guidance.
25. The Council said the Decision 2 panel was made up of a senior member of the Cognus leadership team and a member of the Council’s Commissioning Team.
26. Mr Y asked for a further appeal. He claimed the lack of detail in Decision 1 made it difficult for him to focus his appeal on factors the Council considered. In his appeal request, Mr Y explained the reason for changing school was outside of their control and they were not given any other school options. He also noted the walk was longer to school than Decision 2 said. The route to school was unsafe, regardless of whether she walked alone or accompanied. Mr Y noted both appeals had to be sent to the same email address.
27. In October, the Council sent him Decision 3 which told him the panel had not upheld his appeal. Decision 3 said there was insufficient evidence to show Z’s needs would prevent parents from arranging transport. I have seen the minutes for the panel meeting. It noted Z did not need to be an independent traveller. What was important was her needs did not appear to be a barrier to her parents arranging transport. It noted she had been receiving arranged transport which showed her needs were not a barrier to the parents arranging transport. The parents’ argument about work commitments could not be considered. It concluded no possible eligibility criteria was reached.
28. The Council accepted Decision 3 could have provided additional details, although the points raised did not show eligibility. It also explained Decision 3 was made by the senior member of staff of Cognus, the Council Director of Education, and a senior member of its Commissioning Team.
29. During this investigation, the Council offered a further appeal noting his appeals were one of the older appeals held last summer which took place before a number of changes were made. It recognised there were shortfalls in its documentation, which it reviewed and updated in the autumn term. This included: clarifying how to make verbal representations; detailed consideration given to the appellant’s case in decision letters; the creation of a template for appeal panel meetings and note taking; improved stage 2 (Decision 3) outcome letter templates to ensure they better reflect the full consideration of the panel.
30. The Council also said the EHC plan did not show pupil need was a barrier to parents arranging transport for her. It explained it was not necessary to consider a risk assessment of the route Z would walk for post-16 travel assistance. It was for the parents to make suitable arrangements.
31. In the Decision 1 letter, the Council told Mr Y the deadline for asking for its review.
32. Decision 2 told him where to send any request he wished to make to go to the next stage of the complaint process and the timescale within which to do so.
33. Decision 3 failed to tell Mr Y about how to challenge it if he remained unhappy.
34. The Council sent me the details of officers who dealt with all three decisions.

My findings

Complaint a): independent review and appeal process

35. I found no fault on this complaint because:

• I have seen the names of the officers who made Decision 1, 2, and 3 which satisfied me the decision makers were not the same for each stage; and
• I am also satisfied the reviews/appeals were independent of the initial decision maker. They involved officers both from Cognus and the Council.

36. While not amounting to fault, the decision making and appeal process could be more transparent. I say this because no information was given about who the decision makers were either initially, or at each stage of the appeal/review process.

Complaint b): failure to properly consider

37. I found fault on this complaint because:
1. Decision 1 failed to give proper reasons for its decision to reject his application. While it said it set out the reason for the decision in the letter, I am not satisfied it did. It explained the decision was because there was not enough evidence to suggest Z’s needs prevented a parent from arranging transport to school. This was one of ten considerations it listed from the policy. It failed to explain the basis for reaching this decision or how it considered and weighed his evidence.
2. The policy stated each case is reviewed on individual merits and any personal circumstances. These personal circumstances were not referred to in Decision 1. As such, I conclude, despite the limited information Mr Y included with his application, that Z’s personal circumstances were not taken into account on Decision 1.
3. Decision 2 contained more detail than the previous one. It gave the same reason as before. The panel went on to address the evidence Mr Y sent in support of his appeal and application. One factor alone set out in the policy list was used to counter each piece of evidence he sent. For both the school report, the EHC plan, and location of the school, the Council noted what was said but concluded they did not prevent her parents from making arrangements or accompanying her.
4. Decision 2 also said work and other commitments could not be considered as a basis for help. While this was not on the list of factors the Council would consider, the list did say this was not an exhaustive list.
5. On balance, I consider the Council fettered its discretion when it considered the evidence Mr Y sent. This was because work, getting time off work, and losing pay, should have been considered when applying the test which was ‘whether your needs would prevent your parents or carers from providing transport’. The parents’ argument included Z’s needs being such she could not travel independently, she was vulnerable, and if no transport provision was made, they could not step in and help. This was because they worked full time and could not afford to take the time off. I am satisfied the Council’s approach to the parents’ financial situation and work commitments meant it failed to properly consider whether her needs prevented her parents from making arrangements, or accompanying her, in these circumstances.
6. Clearly, every parent making an application could argue they were unable to take their child because of work commitments and the financial impact. What the Council failed to do was consider what weight, if any, it needed to give to these reasons given, in this particular case, about why they were unable to accompany her or make other suitable arrangements. This was because it was applying a blanket policy which excluded consideration of these reasons. Put simply, it failed to properly consider this case on its merits and personal circumstances as required by its policy.
7. As the Council accepted, Decision 3 could have provided Mr Y with additional details when explaining its reasoning. The letter provided no reasons for reaching its conclusion.
8. The letter also referred to Z not being eligible under the ‘Distance or Extended Rights’ criteria. Neither are referred to in the policy which explained eligibility for travel assistance. The Council accepted it was wrong to assess these criteria to the post-16 policy as this was the criteria used for those under the statutory school age policy. This meant these criteria should not have been taken into account when reaching Decision 3.
9. The letter also referred to the panel deciding there were no ‘extraordinary family circumstances’ which meant she did not qualify under ‘Exceptional Circumstances’. Neither are referred to in the policy.
10. The policy also said at stage 2 (Decision 3), the panel would consider both written and verbal representations. There was no evidence explaining Mr Y was given information about making verbal representations, the process this involved, or that he was given the opportunity to do so.
11. I am satisfied the identified fault caused Mr Y an injustice. I say this because Mr Y lost the opportunity to have his appeal considered and assessed correctly. He lost the opportunity to know the basis of Decision 1 and 3 so he could target his appeal submissions. He also lost the opportunity to decide whether to make verbal representations.

Complaint c): failing to signpost to the next stage of the complaint process

38. I found fault on this complaint because Decision 3 failed to signpost Mr Y to us if he remained dissatisfied. The policy referred to the right to complain to us if a complainant considered there was a failure to comply with procedural rules or there were other irregularities in the way the appeal was dealt with.
39. I am not satisfied this caused Mr Y an injustice. This was because he complained to us 11 days after Decision 3 anyway.

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Action

40. I considered our guidance on remedies as well as the action the Council said it took already. The Council confirmed, as a result of a previous investigation, that it has already taken the following action:
1. Reminded all relevant officers making decisions, either on applications or appeals, of the need to give proper reasons in support which show consideration of submissions made. There were also changes to panel agendas and notes. These actions were done in January 2025; and
2. Ensured relevant officers i) provided appellants with information about giving verbal evidence at stage 2 and ii) allowed them the opportunity to do so if they wish. This action was taken in October 2024.
41. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr Y a written apology for failing to: give proper reasons for Decision 1 and 3; show it properly considered the submissions made; consider applications and appeals without fettering its discretion; taking irrelevant considerations into account; referring to the panel considering factors not in its policy; give information, and the opportunity to make verbal representations as set out in the policy.
2. Arrange a fresh appeal hearing for Mr Y. This will consist of three officers, two of which will not have had any previous involvement with the decision making or appeals process, along with the Director of Education.
3. Issue guidance to relevant officers making decisions, either on applications or appeals, about the need to not to: fetter discretion when making decisions; take irrelevant considerations into account; refer to factors which are not in its policy.

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Decision

42. I found the following on Mr Y’s complaint against the Council;

• Complaint a): no fault;
• Complaint b): fault causing injustice; and
• Complaint c): fault causing no injustice.

43. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman