Summary: Mr X complained the Council failed to consider statutory guidance when it decided to charge for his son, Y’s post-16 transport support. We found fault by the Council because it did not consider the statutory guidance when deciding to charge for Y’s post-16 transport support. The Council agreed to apologise, refund Mr X the cost of his contributions towards Y’s transport support and make him a symbolic payment for the avoidable time and trouble caused to him.

The complaint

1. Mr X complained about the Council’s decision to charge him for his son Y’s, post-16 transport support. Mr X stated the Council failed to consider statutory guidance saying it is good practice not to charge for post-16 transport when the young person is likely to qualify for transport under the post-19 provision. He also complained about the Council’s communication around Y’s post-16 transport.
2. Mr X says the Council’s actions have caused him and his family financial disadvantage and distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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. 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 Mr X and the Council as well as relevant law, policy and guidance.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

9. Young people aged 16 and over with special educational needs and disabilities (SEND) do not automatically receive the free school transport younger children may be entitled to.
10. The legislation regarding post 16 transport is set out in the Education Act 1996, sections 508F – 509AE (as inserted by the Education and Inspections Act 2006).
11. The statutory guidance ‘Post-16 transport and travel support to education and training’ January 2019 provides guidance to Local Authorities about supplying transport for people over 16. Paragraph 37 says it is good practice not to charge a contribution for transport for a young person assessed under the sixth form age duty if it is likely that they will be eligible for free transport under the adult transport duty.

Post-19 transport legislation

12. Councils have a duty under section 508F of the Education Act 1996 to make such arrangements for the provision of transport as they consider necessary in respect of adults (i.e. those who are aged 19 or over) for the purpose of facilitating their attendance at maintained or assisted further or higher education institutions.
13. The adult transport duty applies only to young people who are attending a course which they started after their 19th birthday, including those with Education, Health and Care plans.

The Council’s Post-16 Transport to Education and Training Policy 2024/25

14. 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 that may be available for this.
15. The Council’s policy sets out that young people who met its criteria to receive travel support will need to make a financial contribution toward the cost of the transport. This will be 20% of average cost of SEND transport. It said this would be a flat rate cost of £1632 per student, proportional to the number of days a young person travels.

What happened

16. Y had a condition which causes increasing levels of disability. He had an Education Health and Care (EHC) plan which named a post-16 placement. He turned 16 in the 2023/2024 academic year.
17. On 20 June 2024 the Council sent Y’s mother a message saying she needed to complete an application form if Y needed home to school transport for the next academic year. It said a payment of £350 was needed. It gave Y’s mother nine days to complete the form and pay.
18. Mr X contacted the Council the same day. He asked the Council why:
• he did not receive the message;
• he and Y’s mother were not told to make an application earlier;
• he and Y’s mother were not told they may need to pay towards transport costs sooner; and
• it is charging for Y’s post-16 transport when statutory guidance says it is good practice not to as he will likely be eligible for free transport under the adult transport duty.
19. On 26 June the Council replied. It did not answer Mr X’s questions. Instead it provided general guidance on applying for transport.
20. On 27 June Mr X completed the application form and returned it to the Council. He also asked the Council to answer the questions he raised on 20 June.
21. On 3 July the Council replied. It said:
• it tries its best to tell families about post-16 transport. Y’s school said it would tell families about applying for post-16 transport support.
• it has not asked for payment yet, it will write to families about this in July or August and explain payment options including a payment plan.
• its post-16 home to school/college transport policy explains the financial contribution for young people accessing transport support post-16.
22. Mr X asked the Council to answer why it thought it should charge Y for transport support when statutory guidance says it is good practice not to do so.
23. Correspondence between the Council and Mr X continued culminating in Mr X complaining to the Council about its decision to charge for Y’s post-16 transport.
24. The Council’s replies to Mr X’s complaints said:
• Y is 16 years old and his transport support has been assessed using the post-16 duty.
• Y will be assessed under the adult transport duty at the start of the academic year following his 19th birthday.
• Transport support for young people aged 19-25 is only provided in exceptional circumstances. The Council has no way of accurately predicting transport requirements in three years’ time and so there is no ‘likelihood’ of Y being eligible under the adult duty.
25. Unhappy with the Council’s response, Mr X complained to the Ombudsman.
26. We made enquiries of the Council asking it to provide details of the information it considered when deciding to charge for Y’s post-16 transport support. The documents it provided did not including any consideration of whether Y was likely to qualify for post-19 transport support.
27. During our investigation Y died.

Finding

Notifying Y’s parents about charges for his post-16 transport support

28. Mr X complained the Council did not tell him about charges for Y’s post-16 transport until June 2024 and they were given 9 days to reply. The Council’s reply to Mr X’s complaint said it thought Y’s school was notifying them. The provision of post -16 transport support is administered and provided by the Council, not Y’s school and so it is for the Council to tell parents about the application process.
29. Mr X had nine days to complete the application form. I acknowledge there is no statutory responsibility to tell parents individually about the post -16 transport application process and that it provides information about post-16 transport on its website. Nevertheless I consider nine days is a short timeframe to complete the application form and this can cause avoidable distress to applicants.

Decision to charge a financial contribution for Y’s post-16 transport support

30. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was right or wrong. Instead, we look at the processes a council followed to make its decision.
31. Statutory guidance states that it is good practice not to charge for post-16 transport support where it is likely the young person shall qualify for transport under the post 19 provision. I have seen no evidence the Council considered this matter before Mr X raising it. We expect Council’s to follow the statutory guidance and so it should have done so. This is fault.
32. In response to Mr X’s complaint the Council said it cannot accurately predict future transport needs. However it did not address Y’s specific circumstances. Y had a condition which causes increasing levels of disability. Therefore as Y needed transport support at 16 it is more than likely he would need transport support at 19. I cannot see how the Council could claim it could not accurately predict if Y would continue to need transport support post- 19.
33. The Council’s failure to consider the specifics of Y’s circumstances means there is uncertainty about the Council’s decision to charge for Y’s post-16 transport support. This is injustice.
34. When Mr X raised this matter with the Council it did not provide an answer, necessitating additional correspondence and a complaint from Mr X. This is fault. Mr X was put to added time and trouble in pursuing a reply. This is injustice.

Post 19 Transport

35. The adult transport duty applies only to young people who are attending a course which they started after their 19th birthday, including those with EHC plans. Therefore the Council assesses a young person for post-19 transport once they’ve turned 19 and started a new course. This may mean the young person is not assessed until the start of the academic year following their 19th birthday.

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Agreed Action

36. Within one month of my final decision the Council will:
• Apologise to Mr X for the frustration, uncertainty and avoidable time and trouble caused by identified 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 apology I have recommended in my findings.
• Refund Mr X the amount he has paid towards Y’s post- 16 transport in recognition of the uncertainty around its decision to charge.
• Pay Mr X £100 in recognition of the avoidable time and trouble caused to him in pursuing this matter.
37. Within six months of my final decision the Council will:
• Revise its post-16 transport policy to include reference to paragraph 37 of the Post-16 transport and travel support to education and training’ January 2019, statutory guidance. It will also provide training/guidance to those staff responsible for deciding post-16 transport support applications highlighting this change to its post-16 transport policy.
• Provide a memo to staff responsible for deciding post -16 transport support applications reminding them to give clear evidence based decisions on applications which demonstrate the young person’s individual circumstances have been considered.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed to my recommended action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman