Summary: Mrs X complained the Council wrongly refused to award transport for her son Mr Y who is over 19 and has an Education Health and Care Plan. She also said the Council had failed to carry out transport appeal properly, communicate with her and respond to her complaint. We found fault in the way the Council made its decision about transport for Mr Y and in the way it handled Mrs X’s appeal. This fault caused injustice to Mrs X as she was distressed and could not be satisfied her appeal was properly considered. The Council has agreed to apologise, re-take a decision on Mrs X’s new transport application and make a distress payment.

The complaint

1. Mrs X says the Council failed when refusing transport to her son (Mr Y), who is over 19 and has an Education, Health and Care (EHC) Plan. She also says the Council failed to communicate with her and respond to her complaints.
2. Mrs X says the Council’s failings affected her well-being as she had to drive over four hours a day for three days a week and had to reduce her working hours.

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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. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
5. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
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)
7. 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

8. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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Legal and administrative framework

Transport for young persons over 19 with EHC Plans

10. 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. (The Children and Families Act 2014, section 82)
11. 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)
12. When a council finds it is ‘necessary’ to provide transport for the young adult under section 508F, then 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. 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.

Transport appeals

15. Councils should have complaints and appeals procedures for dealing with school transport issues. They should publish the details on their website every year.  
16. Guidance sets out a recommended two-stage procedure. The two-stage process recommended is:
• stage 1: review by a senior officer;
• stage 2: review by an independent appeal panel.
17. The council should enable any parent that wishes to, to attend an appeal hearing, virtually or in person, to present their case. Where a parent does not wish or is unable to attend a hearing, the panel should make its decision based on the parent’s written representations.

Decision making

18. The Ombudsman’s guidance ‘Principles of good administrative practice’ (updated 2025) sets out the principles of good administration in decision making. These include:
• taking reasonable, timely decision, based on all relevant considerations;
• following the law and taking the rights of those concerned into account.

Equality Act 2010

19. 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.
20. The broad purpose of the Public Sector Equality Duty is to consider equality and good relations into the day-to-day business and decision making of public authorities. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

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What I found

What happened

21. Mr Y has complex special educational needs. His cognitive and learning skills are severely delayed and he is non-verbal.
22. In mid-April 2024 Mrs X applied for transport to a specialist independent college named in Section I of Mr Y’s EHC Plan from September 2024 (the College).
23. Two weeks later the Council declined Mrs X’s application. The Council said its policy allowed making transport arrangements only for young people who started their course before their 19th birthday. Mr Y was not eligible for transport assistance as he had turned 19 before his course started.
24. Responding to Mrs X’s appeal in June 2024 the Council confirmed its position that Mr Y did not meet criteria for transport assistance. The Council quoted its policy which stated that to be eligible for transport or travel assistance a learner must be "...over the school leaving age (16) but under 19 years of age on the 1st September 2024, or continuing to attend a programme which began before they were 19 until it is completed and have an EHCP..." The Council also explained that normally Adult Social Care would fund transport for young people over the age of 19 who needed additional support.
25. At the beginning of July 2024 Mrs X asked for her appeal to be considered at stage two. The stage two appeal was responded to a month later with the Council’s position remaining unchanged.
26. In mid-August 2024 Mrs X raised some concerns about the appeal process. She said the Council failed to:
• give her and her husband an option of attending the stage two panel meeting although in their stage two appeal they expressed their wish to do so;
• provide minutes of the stage two panel meeting which would show which departments and agencies were consulted as part of the process;
• publish its post-16 transport policy by 31 May 2024 as the only policy available on the Council’s website was for the school year 2022/2023.
27. Having received no response she contacted the Council again a week later.
28. In response to my enquiries the Council could not provide minutes of the stage two transport appeal meeting. The Council explained it did not have a formal stage two procedure in place due to the lack of a legal representative who would do administrative tasks including minutes. The Council stated it was addressing this issue.
29. In mid-October 2024 Mrs X complained about the Council’s refusal to provide transport to Mr Y. The Council acknowledged receipt of Mrs X’s complaint.
30. Having received no response to her complaint, Mrs X re-sent it at the beginning of December 2024. In mid-January 2025 she brought her complaint to us.
31. At the end of March 2025 the Council told us it had not received a complaint from Mrs X on behalf of Mr Y. The Council said it would contact Mr Y directly to find out if he wished to pursue his complaint.

Analysis

Decision making

32. When making its decision on Mrs X’s transport application and when reviewing Mrs X’s transport appeal the Council failed to apply the correct legal test. Throughout the process the Council kept stating that Mr Y was not eligible for transport or travel assistance as he would start his course after he turned 19. As explained in paragraph ten councils have a duty to consider whether transport is necessary for relevant young adults with EHC Plans to facilitate their attendance at the educational institutions named in Section I of their plans. Where transport is necessary, it is not discretionary or optional.
33. We expect councils to consider the individual circumstances of each case. The statutory guidance lists several factors to which councils must have regard when considering what arrangements are necessary, including the needs of those who could not attend if no arrangements are made, young people in rural areas, cost, and special educational needs and disabilities (SEND). We expect to see evidence councils have considered all these factors ‘in good faith’ and can give reasons for their decisions. If a council decides transport is not necessary, we expect it to be able to demonstrate, in line with statutory guidance, that there is a safe, affordable way for the learner to attend sixth form / college and to have choice in what they study.
34. The reasons given for the Council’s refusal of transport for Mr Y suggest the Council has been applying a blanket policy for all young persons with EHC Plans who started their course after they turned 19. When deciding on Mrs X’s transport application the Council failed to consider Mr Y’s individual circumstances.
35. In its response to Mrs X’s transport appeal the Council suggested that it would be for the Adult Social Care to fund Mr Y’s transport, if he was considered eligible. The legal test applicable to Mr Y’s situation is outlined in the Education Act 1996 Section 508F. It is for the Council to decide on the process it will follow when considering transport applications for adult learners with EHC Plans and which team will fund transport, provided:
• information and advice is given on the process in line with the Council’s general duties for children and young people with EHC Plans;
• when making its decision the Council will apply the correct legal test;
• after appropriate consultation each year before the end of May the Council will issue its transport policy statement.
36. The Council’s SEN transport team considered Mr Y’s transport application, declined it and advised on the right to ask for a review of this decision. There was nothing to suggest this was not the right process to follow. Therefore the Council’s referral to the Adult Social Care in its transport appeal response was confusing for Mrs X and caused her extra distress.
37. The Council’s failings outlined above are fault. This fault caused injustice to Mrs X as she was uncertain what the outcome of her application would have been, if the Council had applied the correct test when making its decision. In the academic year 2024/2025 Mrs X struggled to combine driving Mr Y to the College named in his EHC Plan with her work and remained frustrated by the Council’s disregard for the law and statutory guidance.

Transport appeal

38. When responding to Mrs X’s transport appeal the Council failed to:
• invite Mrs X to the stage two panel meeting;
• arrange for the independent review panel to consider Mrs X’s transport appeal at stage two;
• ensure transparency of the appeal process by keeping records of the meetings and discussions;
• refer Mrs X to the Ombudsman in its stage two appeal response if Mrs X was unhappy with the appeal process;
• provide its reasons for departing from the statutory guidance which outlines good practice for the transport appeals process.
39. The Council’s failings specified above are fault. This fault caused injustice to Mrs X. Mrs X did not have an opportunity to present her arguments in person before the independent review panel. The lack of any records of stage two panel meeting as well as the stage two response coming from the SEND Transport team rather than an independent review panel undermined Mrs X’s confidence in the independence of the process. As the Council did not refer her to the Ombudsman to query the appeal process, Mrs X did not know how it could be challenged. She tried to complain and for many months the Council did not respond. This meant there were further significant delays for her complaint to reach us.

Equality Act 2010

40. Applying blanket policy refusing transport or travel assistance to young persons over 19 with EHC Plans shows the Council failed to consider the implications of such policy on disabled young people who may struggle to get to the settings named in their plans. This is contrary to the Council’s Public Sector Equality Duty.

Remedies

41. Mrs X told me the Council has now considered her transport application for Mr Y’s transport for 2025/2026. In its stage one appeal response the Council referred to its decision taken for the year 2024/2025.
42. During my investigation I found the Council’s decision refusing Mrs X’s transport application for Mr Y for the year 2024/2025 was flawed as it did not apply the correct legal test. To ensure that Mrs X does not bear negative consequences of the Council’s failure in its decision making, the Council should not refer to its earlier decision.

Service improvement

43. In a recent decision we recommended the Council:
1. remind those dealing with school transport cases of the need to ensure parents/carers are given the opportunity to attend appeal panel hearings should they wish to;
2. advise those dealing with transport appeals of the need to keep notes from the appeal hearing so there is a record of what information the appeal panel considered;
3. remind those dealing with complaints to ensure complaints which include concerns about failure to follow processes or consider relevant information are put through the Council’s complaints procedure even if the Council considers the decision cannot be overturned by the complaint process.
44. We will be monitoring the Council’s service improvements recommended above through our casework.

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Action

45. To remedy the injustice caused by the faults identified, we recommend the Council complete within two weeks of the final decision the following:
• apologise to Mrs X for the injustice caused to her by the faults identified. 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 the apology I have recommended;
• re-take its stage one appeal decision in response Mrs X’s transport application for Mr Y for the year 2025/2026 removing any references to its previous decision on Mr Y’s transport for the year 2024/2025. The Council will provide us with a copy of its stage one transport appeal decision;
• pay Mrs X £350 in recognition of the uncertainty caused by the fault identified.

The Council will provide the evidence that this has happened.

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Decision

46. I find fault causing injustice. The Council has accepted my recommendation, so this investigation is at an end.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman