Summary: Mrs X complains the Council has said it will provide her with a transport budget that does not cover the cost of transporting her child, Y, to his placement named in his Education, Health and Care Plan for the whole academic year. Mrs X says she is struggling to meet the travel costs and it has resulted in a lot of stress and worry. I have found fault with the Council’s transport policy, found evidence the Council did not apply the correct test as set out in law when considering Y’s application for transport, failed to provide Mrs X with a personal travel budget as promised and failed to meet statutory timescales when finalising Y’s EHC Plan following an annual review. The fault has resulted in ongoing financial hardship, ongoing delayed appeal rights and uncertainty about what decision the Appeal Panel would have made if it had been guided by an appropriate policy, suitable training and had it considered Y’s circumstances properly. The Council has agreed to remedy the injustice caused to the family and make the recommended service improvements.

The complaint

1. Mrs X complains the Council has refused to provide transport to and from her child, Y’s, college as named in his Education, Health and Care Plan.
2. Mrs X says the cost of covering transport to and from college is not sustainable and it is resulting in financial hardship.

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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 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)
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)
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 Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making this final decision.

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What I found

Relevant law and guidance

Education, health and care plans

9. 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. A council has a duty to secure the specified special educational provision in the EHC plan for the young adult. (The Children and Families Act 2014, section 42)
10. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date.

Transport to education setting

11. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” (or that the Secretary of State directs) to facilitate the attendance of relevant young adults at institutions where the local authority has secured the provision of education for the adult concerned. Relevant young adult means an adult who is under 25 years old for whom an EHC plan is maintained. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs. The plan coordinates a child or young person’s health and social care needs and sets out any additional support they might need. (The Children and Families Act 2014, section 82)
12. When a council finds it is ‘necessary’ to provide transport for the young adult under section 508F, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).
13. If a council does not consider it ‘necessary’ to provide transport under section 508F it may still choose to pay some or all of the reasonable travel costs under either section 508F(8) or as social care provision under the Care Act 2014.
14. Under section 508G of the Education Act 1996 councils must set out information about the travel provision they have in place for relevant young learners so they and their families can make informed choices between institutions. The Special Educational Needs and Disability (SEND) Code of Practice: 0 to 25 years (2014) requires councils to have clear policies about transport in their Local Offer.
15. A Local Offer sets out in one place information about provisions the local authority expects to be, and will be, available across education, health and social care for children and young people in their area who have special educational needs (‘SEN’) or are disabled. This includes those who do not have an EHC plan.
16. Statutory guidance ‘Transport to education and training for people aged 16 and over’ (2019) also highlights local authorities’ duties under section 508F and 508G of the Education Act 1996. It notes that the overall intention of the adult transport duty is to ensure that those with the most severe disabilities with no other means of transportation can undertake further education and training after their 19th birthday to help them move towards more independent living.
17. The application of a transport policy in relation to a disabled young person engages the Equality Act 2010. Councils must have regard to the need to advance equality of opportunity to access education between persons with a disability and those without.
18. The Upper Tribunal (Administrative Appeals Chamber) has considered transport for post-19 learners with an EHC plan. The Tribunal commented that: “the local authority has a duty to make transport arrangements for [a post 19 learner] if they consider that to be ‘necessary’ having regard to all the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangement and the transportation must be free of charge.” (Staffordshire County Council v JM, 2016] UKUT 246 (AAC)

The Council’s Policy: Post-16 Transport Policy Statement, 1 June 2024 to 31 May 2025

19. This policy was relevant at the time the Council considered Mrs X’s appeal. It sets out how the Council determines eligibility for travel assistance for students aged 16 and over.
20. Section 3 sets out the Council’s policy on ‘sixth form transport assistance’. This section covers young people who are over 16 years of age but under 19 or continuing learners who started their programme of learning before their 19th birthday. It says eligible people with an EHC Plan can continue to receive help under this duty up to age 25 where they are continuing a course started before their 19th birthday. The Council says it will look at each case individually, it will consider the needs of the young person, the eligibility criteria and the available resources.
21. The Council says it will generally provide transport assistance only if the following statements apply:
• Not able to travel independently and safely to education EITHER because they have a special educational need or disability, which may be identified in an Education Health and Care Plan OR because they can demonstrate other exceptional circumstances. Exceptional circumstances will be assessed on a case-by-case basis, taking into account -

- those who are, or are at risk of, not being in education, employment or training (‘NEET’),

- young parents,

- choice of further education establishment (including establishment based on religion),

- distance and journey time

- cost of transport to preferred further education establishment,

- alternative means / non-transport solutions that help facilitate attendance,

• Resident in the administrative area of Kirklees Council and are over 16 years of age but under 19 or a continuing learner who started their programme of learning before their 19th birthday (years 12, 13, 14).
• Attending a programme of learning at a suitable school or college.
2. The Council’s normal offer of travel assistance for students aged over 16 but under 19 under the ‘sixth form duty’ is a Post 16 Personal Travel Budget (PTB). A PTB is a direct payment and is designed to help parents to get their child to school/college. It replaces council-organised transport, although requests for traditional transport methods will be considered on a case-by-case basis.
3. The PTB Amount is based on the shortest distance between home and the school or college the young person attends. There are four distance bands:
• Band 1 – less than 3 miles - £300 PTB
• Band 2 – Between 3 and 10 miles - £1000 PTB
• Band 3 – Between 10 and 20 miles - £2000 PTB
• Band 4 – More than 20 miles - £3000 PTB
4. The Council says unless continuing a course started before their 19th birthday, people aged 19 and over are generally dealt with under the ‘adult transport duty’ in Section 5 of the policy. These students may still be offered council-organised transport instead of a personal travel budget (PTB).
5. Section 5 of the policy is entitled ‘Travel assistance for young adults with SEND attending a course that started after their 19th birthday’.
6. This section sets out the eligibility criteria for support under the ‘adult transport duty’. It says the Council will generally provide a young adult with travel assistance if all the following statements apply to them:
• Resident in the administrative area of Kirklees Council and aged between 19 and 25 years of age and starting a new course of study after their 19th birthday;
• Enrolled on and attending a programme of learning;
• Attending a programme of learning at a suitable school or college.
7. The Council says travel assistance may be provided in the following ways (this list is not exhaustive):
• Independent travel training to enable students to use public transport or travel independently
• Subsidised bus pass/travel card
• Personal travel budget
• Taxi or specialist transport to/from home or pick up point
• A contribution towards mileage expenses
8. The Council says that unlike under the ‘sixth form transport duty’, there is no charge for Council-organised transport under the ‘Adult Transport Duty’.

The Council’s Transport Appeals Process

29. The Council has a two-stage appeal process. At Stage One a council officer considers the appeal. At Stage Two the appeal will be heard by a panel of Councillors.

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What happened

30. Mrs X has a son, Y, who has special educational needs and has an Education, Health and Care (EHC) Plan maintained by the Council. Y’s most recent final EHC Plan dated 14 September 2022 states that he is vulnerable, has ‘complex needs’ and ‘significant learning difficulties’.
31. Y began a three-year course at college in September 2023 funded by the Council. Y was 21 years of age when he began attending the college. In his first year of the course, September 2023 to July 2024, the Council provided transport, a taxi, to and from the college.
32. In November 2023, the Council wrote to parents, including Mrs X, to advise of some changes it was proposing to make, due to rising costs, regarding the way eligible Post-16 young people with additional needs are helped to access their place of education. The Council invited parents to comment on the proposals. The consultation letter said “All councils must produce a ‘Transport Statement’ each year, which is to support eligible post-16 pupils with SEND but also supports those pupils who, due to exceptional circumstances, need transport assistance”. It also explained that the Council was proposing to change its approach and provide each eligible pupil with a Post 16 Personal Travel Payment, based on the distance the young person travels to access education.
33. On 20 June 2024, Mrs X applied for travel assistance for Y for the academic year September 2024 – July 2025. The Council decided Y was eligible for transport assistance by means of a personal travel budget (PTB) and not physical transport as he had previously received. The Council said “the reason for this decision is that your child/young person currently receives transport assistance in the form of a taxi meaning there are no additional specialist requirements needed for their travel”. It did not explain why it would no longer provide a taxi for the second year of Y’s course when it had for the first year.
34. Based on Y’s home address and the location of the college, the Council decided Y was eligible for a PTB of £2000, under Band 3, for the academic year. The Council said it would pay Mrs X £200 at the start of each month. It failed to do this.
35. On 11 August 2024, Mrs X appealed the decision. She told the Council about Y’s disabilities and how they affect his ability to use public transport. If Y was to use a bus to get to and from college he would need someone to accompany him as it is three buses to the college and three buses for the return journey. Medical reports supporting Y’s social vulnerability were also provided. Mrs X told the Council that Y did not need assistance/a chaperone if he is being transported by a taxi to and from college. Mrs X also outlined the PTB was not enough to cover the cost of a taxi for one whole academic year and they were unable to afford the cost.
36. The Council considered the appeal and decided ‘there were no exceptional circumstances that would mean the Council should continue to provide transport for [Y] and the decision to award a personal travel budget stands’. The Council advised Mrs X there was a further right of appeal available to her if she was unhappy with the decision.
37. Mrs X submitted her Stage 2 appeal on 2 September 2024. She resubmitted the medical reports and reiterated the need for a taxi for Y. She explained that the PTB would cover a bus pass for Y but he was unable to travel independently on six buses per day of learning, any changes or delays would result in dysregulation, confusion and would put Y at risk. Mrs X also explained the placement at the college was one that was identified by the Council as meeting his needs and is the closest setting to their home address that is suitable for Y.
38. Mrs X requested the support of an advocate for the appeal hearing.
39. The appeal hearing was held on 24 September 2024. The Appeal Panel decided ‘no exceptional circumstances existed’ and therefore the appeal was refused. The Appeal Panel decided a financial contribution of £2000 was what Mrs X was entitled to and this was to be used as a contribution towards transport for Y. It did not explain how the remainder of the costs would be covered but it was suggested to Mrs X that friends and family should help transport Y.
40. Mrs X has not received the £2000 PTB the Council said she was entitled to. She has not received any financial support from the Council.
41. Mrs X brought the matter to the Ombudsman on 28 October 2024.
42. Y is currently in his second year of his course at college and he is 23 years of age.

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Analysis

43. The Council is entitled, both under the statutory guidance and its own policy, to contribute partially towards transport for Y. It is not the Ombudsman’s role to decide whether the Council should pay fully or partially for transport for Y, that is the Council’s responsibility. Our role is to decide whether the Council made this decision properly and considered all the relevant evidence.
44. In response to my enquiries, the Council said that after taking all available information into account, the decision was made to award a personal travel budget and not physical transport. However, the evidence shows the Council did not take into account all available information and it has not provided a clear explanation to Mrs X for not providing Y with a taxi to his placement in his second year at college when it had provided one in his first year to and from the same college and, according to the Council, his needs have not changed. The Council has removed the transport in his second year, is of the view Y cannot safely and independently travel to his placement via bus and said it would provide a PTB that does not cover even half of the academic year in taxis. In addition to this, Y has an EHC Plan and the Council funds his placement at the college. The Council said the college was chosen by Mrs X but the law allows the Council to name a closer college if it considers there was a nearer suitable college available, but it has not done so. The Council has a duty to secure the education provision specified in Y’s EHC Plan. It cannot do this if Y is unable to attend college.
45. After considering the Council’s assessment and decision on Y’s transport application, it appears the Council has used its ‘sixth form transport assistance’ policy to decide whether Y is eligible for transport. This appears to be because the Council did not consider Y’s age and it made an assumption that it was the sixth form transport assistance eligibility criteria that applied and not the adult transport eligibility. This is fault.
46. The Council’s policy on ‘sixth form transport assistance’ says it will generally provide transport assistance if the young person is not able to travel independently and safely to education either because they have a special educational need or disability or because they can demonstrate other exceptional circumstances. Y does have special educational needs and the Council has advised me it is of the view Y can travel independently in a taxi but not independently on three buses to his placement and three buses for the return journey. Yet the Council has decided to provide Y with a travel budget that does not cover taxis for one academic year to the placement that meets his needs. The Council accepts the travel budget does not cover the full cost of transport but “it is the arrangements the Council thought it necessary to put in place based on the individual circumstances of [Y’s] case, evidence of which can be found in the decision letters provided”.
47. However, the decision letters demonstrate the Council applied the wrong test when considering Y’s application for transport. Not only was the Council wrong to use its ‘sixth form transport assistance’ test in Y’s case but the test as set out in Section Three of the Council’s policy, does not make reference to the Council considering whether transport is necessary. In addition to this, the test set out in Section Five of the Council’s policy which relates to the ‘adult transport duty’ does not make reference to the Council’s statutory duty to provide free transport to relevant young adults aged 19 or over where they decide it is ‘necessary’. The test is whether transport is ‘necessary’, not whether the need is ‘exceptional’. The two words have different meanings. I have recommended the Council revises the wording of both tests in Section Three and Five of its policy.
48. If the Council had considered Y’s age and when he started his course, it would have used Section Five of its policy where it stipulates the eligibility criteria for support under the adult transport duty. This section says the Council will generally provide a young adult with travel assistance if they are a resident in the area, aged between 19 and 25 years of age, started a new course of study after their 19th birthday, they enrolled on and are attending a programme of learning at a suitable college. The evidence I have seen shows Y satisfies this criterion for transport.
49. The policy goes on to state that “unlike under the sixth form transport duty, there is no charge for Council-organised transport under the adult transport duty”. But the Council has decided to give a transport budget of £2000 when the estimated cost for one academic year is approximately £6240 (my calculation is based on Y’s attendance at college 4 days per week, each return journey in a taxi costing approximately £40 per day and there being 39 weeks in one academic year).
50. I asked the Council to confirm when Y commenced the current course he is studying at college. The Council said the home to school transport service does not hold details of when Y commenced his current course. This further demonstrates the Council did not consider Y’s individual circumstances because this was information that was relevant in identifying which part of its policy to apply, the ‘sixth form travel assistance’ criteria or the ‘adult transport duty’.
51. The Council has advised Mrs X that she should ask friends or relatives to take Y to college. Mrs X does not drive and Mr X has health problems and relies on Mrs X for day to day assistance. Mr and Mrs X cannot transport Y to college each day and have no obligation to do so as Y is an adult.
52. The Upper Tribunal set out the test of what transport arrangements might be necessary as being those “having had regard to all the relevant circumstances”. The Council therefore has a qualified discretionary duty to provide transport.
53. The statutory guidance says councils must exercise their power to provide transport or financial support reasonably, taking into account all relevant matters. The Council did not take into account Y’s EHC Plan. This is fault. The Council says it was not provided a copy of Y’s EHC Plan by Mrs X and the Council’s Transport Team did not have a copy of it. I acknowledge Mrs X did not provide a copy of Y’s EHC Plan but it is document produced by the Council, it has access to it and it was relevant to the Council’s consideration because it details Y’s special educational needs and disabilities.
54. The Council has also acknowledged it did not consider Y’s age which was relevant because it would have triggered the ‘Adult Transport Duty’. The Council’s own policy on transport says it will consider the needs of the young person and the limited available resources it has will be targeted towards people with special educational needs and/or disabilities. But this is not apparent in Y’s case.
55. The Council has told me the appeal panel consisted of ‘suitably trained Elected Members’ but they did not apply the correct test, they did not have regard to all of Y’s circumstances and in the hearing they asked Mrs X if friends could transport Y to his placement. They also did not clearly state the reason why Mrs X’s reasons for appeal did not justify a taxi for Y when it provided a taxi the previous year and his needs and placement remained the same. This demonstrates the Panel Members considering Y’s appeal require training on the law before they consider another transport appeal. I have made a recommendation below.
56. I have found the Council’s consultation with parents dated 15 November 2023 contained incorrect information because it referred to providing transport assistance to pupils with SEND who “due to exceptional circumstances” need transport assistance. Parents and carers were invited to take part in this consultation. As mentioned above, the test is whether transport is ‘necessary’, not whether the need is ‘exceptional’. This is the wrong test.
57. I have also found fault with the Council’s policy. Different duties apply to young people of sixth form age and adult learners with an EHC Plan. The Council’s policy fails to clearly set out its statutory duty to provide free transport if it is necessary for adult learners with an EHC Plan. This is fault. From the Council’s response to my enquiries, it appears staff at the Council are also confused by the different duties. This fault has the potential to cause significant injustice to many families. I have made recommendations to address this.
58. In conclusion, the Council:
• incorrectly used the ‘sixth form transport assistance’ criteria in its policy instead of the ‘adult transport duty’ criteria,
• has a policy/transport statement where the tests/eligibility criteria for sixth form transport duty and adult transport duty do not make reference to the Council providing transport, or otherwise, where it considers it necessary;
• did not have regard to all the relevant circumstances when considering Y’s transport application and appeal,
• provided incorrect information in the consultation with parents and carers; and
• Has demonstrated it has an expectation that family and friends should be responsible for transporting Y to his placement.
59. The faults have caused the family an injustice because there is an uncertainty about what decision the Appeal Panel would have made if it had been guided by an appropriate policy, had been suitably trained and it considered Y’s circumstances properly. Mrs X has not been provided with a clear reason why Y is no longer eligible for a taxi in his second year of his placement but he was in his first year. The Council has also not provided Mrs X with the travel budget it had agreed to in July 2024. Although the agreed travel budget does not cover the whole academic year it would have helped Mrs X for some of the travel costs she has incurred since September 2024. This has caused additional and avoidable financial hardship to the family over a significant period.
60. Mrs X has advised me she has felt uncomfortable asking neighbours to help when there is no family member to assist but she feels she has no choice. She tells me Y’s placement is ‘wonderful’ in meeting Y’s educational, social and emotional needs. If he can’t attend the placement, he becomes very upset and it has a detrimental impact on him which in turn effects the family due to his challenging behaviour.
61. The injustice to Y and his family is significant, prolonged and ongoing. It warrants an appropriate remedy.

Other matters coming to our attention

62. During my investigation it became apparent the Council had not issued a final EHC Plan for Y following an annual review on 6 September 2023. Y’s most recent finalised EHC Plan is dated September 2022. The Council has not followed statutory timescales and this is fault.
63. The Council has confirmed it funds Y’s placement at the college and this would be the setting named on his final EHC Plan had it been finalised in accordance with statutory timeframes.
64. The final EHC Plan should have been issued within 12 weeks of the review meeting. As of 29 May 2025, this will be a delay of 18 months. This is a significant delay, it is ongoing, Mrs X has not been given an opportunity to use her appeal rights and there is continuing uncertainty Y’s education, health and care needs are being met. This significant injustice and continuing delay warrant a remedy.

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Agreed Action

65. To remedy the injustice caused by the identified faults, the Council has agreed that within four weeks of this final decision, it will:
• Apologise in writing to Mrs X;
• Review and properly assess whether it is ‘necessary’ for Y to receive transport in the form a taxi to his college as an adult learner. This should include a written record of its deliberations and consideration of section 508F of the Education Act and the 2016 case law referenced above at paragraph 18.
• Pay Mrs X £500 in recognition of the avoidable distress caused by failing to consider the transport application and appeal in accordance with the law;
• Pay Mrs X £500 for the avoidable distress caused by failing to provide her with the PTB it agreed to in July 2024 when it was aware she was struggling to afford the taxis;
• Pay Mrs X the PTB she should have received as agreed by the Council in July 2024 (£200 per month from September 2024);
• Finalise Y’s EHC Plan without delay;
• Pay Mrs X £1800 as a symbolic payment for the delay in finalising Y’s EHC Plan. This equates to £100 per month of delay (up to and including 29 May 2025). The Council should continue to pay Mrs X £100 for each month of any further delay after May 2025 until it issues Y’s final EHC Plan;
• Remind relevant council officers and appeal panel members to consider all relevant information including the young person’s age and where relevant, their EHC Plan when considering applications for transport.
66. The Council has also agreed, that within three months of this final decision, it will:
• Review its policy on Post-16 Transport and revise the wording of the eligibility criteria/tests in Section Three and Section Five to reflect the Council’s duty to provide transport if it is considered ‘necessary’;
• Properly reflect in its revised policy the difference between the approaches the Council should be taking for young people aged 16-18 and those over 19;
• Make the finalised revised policy available on its website;
• Review the cases of all post-16 learners who have applied for transport where the Council has used the policy it adopted on 1 June 2024 and identify the cases where it has refused transport at appeal and not used the correct test in law;
• Write to the young people identified in its review (those affected by the fault identified in this decision statement) and invite them to reapply for travel assistance (if still relevant) under its revised policy;
• Backdate any travel costs incurred by families where it overturns its decision using the revised policy/correct test as set out in law.
• Provide training to all council officers who will make decisions on transport under the revised policy, including Appeal Panel Members.
67. The Council will provide us with evidence it has complied with the above actions.

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Decision

68. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman