Summary: Mr X complained the Council wrongly decided it would not provide support with post-16 school transport costs for his child D, who is disabled and has an Education, Health, and Care Plan. There was fault by the Council which caused avoidable distress and confusion for Mr X and meant it did not properly consider his appeal about this issue. The Council agreed to reconsider Mr X’s appeal, apologise, and pay a financial remedy. It will also ensure its published policy accurately describes its appeal process, review its record keeping procedures for appeals, and provide training to staff about the faults we identified.

The complaint

1. Mr X complains the Council wrongly decided it would not provide support with post-16 school transport costs for his child D, who is disabled and has an Education, Health, and Care Plan.
2. Mr X says D is attending the closest suitable college and cannot travel independently because of their special educational needs. Mr X transports D to college which costs £400 a month in petrol, a cost he cannot afford. Mr X wants the Council to provide the family with a travel assistance budget to help with the petrol costs.

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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. The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b), as amended)
5. 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)
6. 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

7. I considered evidence provided by Mr X and the Council, and 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.
9. 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

Legislation and guidance

Education, Health, and Care (EHC) Plans

10. A child or young person with special educational needs (SEN) 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.

Post-16 school transport

11. Sections 509AA – 509AC of the Education Act 1996 set out what a council must consider when setting its policy for school transport for those of sixth-form age. Councils should also have regard to the relevant statutory guidance, ‘Post-16 transport and travel support to education and training’, dated January 2019. This says the Council must publish a transport policy statement which sets out:
• the transport arrangements it considers necessary to make, to facilitate attendance at education or training for learners of sixth form age;
• the financial help available for learners of sixth form age with transport costs;
• details of transport arrangements for people of sixth form age with special educational needs and disabilities (SEND); and
• a procedure for appeals or complaints about the Council’s post-16 school transport decisions.
12. The guidance also says councils:
• are expected to target support with post-16 transport at those who need it most;
• must have regard to the need for young people to have reasonable opportunities to choose between learning establishments and courses;
• must have regard to the distance and journey time of the place of learning from home;
• must have regard to the cost of transport to the learning establishment and of any alternative means of facilitating attendance; and
• can ask a family to contribute to transport costs but should ensure any contribution is affordable and have arrangements to support low-income families.
13. In assessing what transport arrangements are appropriate in any specific case, a council must take into account all relevant considerations arising in the individual circumstances of each case.
14. In relation to learners with SEND, the statutory guidance says it is good practice for councils not to charge a contribution for sixth form transport if it is likely the young person will be eligible for free transport under the adult transport duty (i.e. under the Care Act 2014 if they have care needs). We expect councils to show how they have made their decisions in each case.

The Ombudsman’s jurisdiction

15. The Education Act 1996 and associated statutory guidance says complaints about post-16 school transport may be made to the Local Government and Social Care Ombudsman, or to the Secretary of State (SoS) for Education. As described at paragraph 4, the law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, in this case I consider it was reasonable for Mr X to come to the Ombudsman. I do not consider there is good reason to direct him to complain to the SoS now.

What happened

16. Mr X’s child D has an EHC Plan. Mr X says D cannot travel independently because of their SEN. When D was in secondary school the Council provided financial support to help the family with petrol costs to transport D to school.
17. In 2024, D successfully applied for a new educational placement at a college setting, due to start September 2024. In July 2024, the Council told Mr X its financial support for D’s school transport would not continue when they moved to their new college placement and said he could appeal against this decision.
18. Mr X made a Stage 1 appeal in July 2024. He explained why D could not use public transport or travel to college independently. He wanted to drive D to college himself and asked the Council to provide support with petrol costs.
19. In August 2024, the Council responded to Mr X’s appeal at Stage 1. It said, “SEND travel assistance is only provided for young people with complex or severe needs… we did not feel that there were any safety concerns or that you are on a low income to offer travel assistance on discretionary grounds.” It directed Mr X to make a Stage 2 appeal if he remained dissatisfied.
20. Mr X made a Stage 2 appeal in September 2024. He said the Council had not considered all D’s needs, and had wrongly said the family was not on a low income.
21. In October 2024, the Council responded to Mr X’s appeal at Stage 2. It said, “we did not feel that there was enough evidence to warrant travel assistance on discretionary grounds. We can see that there are two parents within the household, the Local Authority would expect you both to work together in getting [D] to and from college… Domestic situations around work commitments, are not part of the criteria for Travel Assistance to be considered.”
22. Mr X brought his complaint to the Ombudsman in December 2024. At this point he continued to transport D to college and pay the full cost of this himself.

My findings

The Council’s policy for post-16 SEND travel assistance

23. The Council publishes its policy for post-16 SEND travel assistance. This says the Council has no specific duty to provide free or subsidised post-16 school transport for young people of sixth form age, whether they have an EHC Plan or not. However, the Council says it will assess whether it can provide support for those who meet the eligibility criteria, including:
• young people aged 16 to 19 with severe physical and learning disabilities;
• young people aged 16 to 19 with an EHC Plan issued by the Council; and
• those who attend the nearest qualifying educational placement appropriate for their age, ability, and aptitude, but live more than 3 miles walking distance from the placement.
24. One way the Council says it may support with post-16 transport is via a travel assistance budget. This is a monetary payment so the family can choose and arrange the most suitable transport themselves.
25. The policy sets out a two-stage appeal process for post-16 SEND transport assistance decisions. This says:
• appellants have 20 working days to appeal the Council’s decision;
• at Stage 1, the appeal is reviewed by a service manager and the outcome communicated within 20 working days of receipt;
• if an appellant is not satisfied following Stage 1, they can appeal at Stage 2 within 20 working days; and
• at Stage 2, the appeal is reviewed by a head of service and the outcome communicated within 40 working days of receipt.
26. However, in a flow chart attached to the policy, and in its communications with Mr X, the Council set out a different appeal process:
• Stage 1 – review by a head of service within 20 working days.
• Stage 2 – review by an independent appeal panel within 40 days. The panel will consider written representations from the appellant, provide them opportunity to attend the panel, and communicate the decision within 5 working days of the panel meeting.
27. This second appeal process outlined at paragraph 26 is the process the Council followed in its consideration of Mr X’s case.
28. The contradicting information within the Council’s policy is fault. This did not cause Mr X an injustice, because the Council properly explained the process it would follow in its communications with him. However, the Council should correct the errors in its policy to ensure this properly reflects the process it follows in practice and avoid any future confusion for appellants.

How the Council considered Mr X’s appeal

29. The Ombudsman is not an appeal body. It is not our role to decide whether the Council should provide support with D’s college transport costs under the Council’s policy; that is the Council’s responsibility. We do not take a second look at a decision to decide if it was wrong. We investigate the processes a council followed in its consideration of an application or appeal, to assess whether it made its decision properly.
30. I decided the Council was at fault in how it considered Mr X’s appeal because of the following.
• The Council provided copies of internal emails showing its consideration at Stage 1. The email from the Stage 1 reviewer only said the appeal should be declined because the family were no longer eligible to receive a travel assistance budget. These records do not explain why the family were considered ineligible under the Council’s policy, or evidence proper consideration of the family’s circumstances or grounds for appeal. It is unclear where the rationale in the Council’s Stage 1 outcome letter to Mr X came from, as this did not come from the notes made by the reviewer.
• The Council’s policy says it will provide appellants with an opportunity to attend the Stage 2 panel. Mr X was not offered this opportunity. There was also no evidence the Council considered this but decided it had a good reason it should not invite Mr X to the panel.
• The Council provided records of its Stage 2 panel consideration. In these notes the reasons for Mr X’s appeal were not recorded in full and did not include all the grounds for appeal he had raised. The panel recorded the rationale for its decision as “Please direct to [the college] to help with Bursary application”. This only records the next steps for signposting Mr X after the appeal, it does not explain the rationale for the decision. The Council kept no record of who attended the panel and whether they were independent, what evidence they considered, what they discussed, or why they refused the appeal. In the absence of this evidence, I must conclude the panel did not make its decision properly.
• The Stage 2 outcome letter to Mr X also did not explain or evidence proper consideration of Mr X’s specific grounds of appeal. The Council said it would expect D’s parents to work together to transport D to college and referred to work commitments not being a valid reason for needing assistance. However, this was not relevant to Mr X’s appeal. Mr X did not want help making the journey and his preference was to continue taking D to college himself, he just said he needed financial support with the cost of petrol.
• The statutory guidance says councils must have regard to the distance and journey time of the place of learning from the home. The Council’s records showed at Stage 1 it considered D lived 2.2 miles from the educational placement, and at the Stage 2 appeal panel it considered the distance to be 2 miles. Neither of these are correct. Mr X says the family live 15 miles from D’s college. The Council’s records show it wrongly considered the distance to D’s secondary school which he had just left, rather than the college he would be attending in the following school year. Therefore, the Council did not properly consider the distance and journey time and how much money this would cost the family.
• The statutory guidance says councils must have regard to the cost of transport to the learning establishment. It also says councils should ensure any contribution to transport costs from the family are affordable and have arrangements to support low-income families. In the Stage 1 outcome, the Council said it did not consider the family to have a low income which would justify travel assistance on discretionary grounds. It is unclear where this rationale came from as the records show this is not something the Stage 1 reviewer considered. The Council had not asked Mr X to provide details of the family’s income, or details of the costs of the journey to college, so it cannot have properly considered affordability. Mr X raised this at Stage 2 and explained the family were on a low income and received benefits. However, the Stage 2 panel records do not evidence discussion of the family’s income or the cost of the journey. The Council did not refer to these factors in the Stage 2 outcome letter either.
31. There was fault in how the Council considered the appeal which calls into question the outcome. This causes uncertainty for Mr X about whether the Council may have provided a travel assistance budget if it had properly considered the appeal. The Council’s failure to properly consider the case or explain its reasoning to Mr X also caused him distress and confusion. The Council should remedy the injustice caused.

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Action

32. Within one month of our final decision the Council will:
1. reconsider Mr X’s appeal afresh, with no involvement from staff/ panel members involved previously. It will:
1. properly clarify with Mr X details of the distance, journey time and cost, and affordability of this for the family. It will also provide Mr X and/or D the opportunity to attend the Stage 2 panel if they wish to do so; and
2. properly consider all evidence and grounds for appeal, have due regard to the statutory guidance and its own policy, and properly record and explain the reasons for its decision.
2. if the fresh appeal results in a decision to provide a travel assistance budget, it will backdate this to September 2024 and repay the family money owed;
3. apologise to Mr X for the faults we have identified and the impact of those faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology; and
4. pay Mr X £200 to recognise the avoidable distress and confusion caused.
33. Within three months of our final decision the Council will:
1. correct the errors in its post-16 SEND travel assistance policy to ensure this properly reflects the appeal process it follows in practice;
2. review its record keeping procedures for post-16 SEND transport appeals to ensure it keeps proper records of decision making at Stage 1 and Stage 2; and
3. provide training to relevant staff involved in consideration of post-16 SEND transport appeals at Stage 1 and Stage 2, to address the faults we identified in this case.
34. The Council will provide us with evidence it has complied with the above actions.

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Decision

35. I find fault causing injustice. The Council agreed to the actions I recommended it should take to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman