The Investigation

The complaint

1. Ms X complained on behalf of her disabled adult daughter, Miss Y. She said the Council:

• wrongly refused to provide free home-to-college transport for Miss Y;

• did not apply the correct legislation for adult learners with special educational needs by applying a post-16 policy not a 19-25 year old policy and did not initially consider Section 508F of the 1996 Education Act;

• did not carry out an individual needs assessment for Miss Y instead implementing a standardised distance-based transport provision; and

• did not properly consult on the Council’s 2024/2025 Transport Policy.

2. Ms X said the Council’s failings affected Miss Y’s access to education reducing her independence. Ms X said this also caused her distress, mental health implications, a financial loss and lost work opportunities.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

4. We cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

5. 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.

6. 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)

7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance

Post-19 education transport legislation

8. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider “necessary” 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 (not a child or a pupil of sixth form age) for whom an Education, Health and Care (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 also 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). Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs.

9. When a council finds it is “necessary” to arrange transport for the young adult under section 508F, then the transport must be arranged and be free of charge (Education Act 1996, section 508F(4)). In deciding whether the council is required to make arrangements because it is “necessary”, the council must have regard to (among other things) the age of the adult and the nature of the route which the adult could reasonably be expected to take.

10. If a council decides it is not “necessary” to arrange transport to facilitate the attendance of the relevant young adult, it still has the power to pay all or part of reasonable travel expenses with a discretionary award. (Education Act 1996, section 508F(8))

11. In the case of the Upper Tribunal in Staffordshire County Council v JM [2016] UKUT 246 (AAC), the judge said:

“The Local Authority has a duty to make arrangements for H if they consider that to be necessary having regard to all of 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 arrangements and the transportation must be free of charge.”

12. Councils must also take into account the “Post-16 transport and travel support to education and training statutory guidance 2019” (the statutory guidance). The guidance says “The overall intention of the adult transport duty is to ensure that those with the most severe disabilities with no other means of transportation are able to undertake further education and training after their 19th birthday to help them move towards more independent living.”

Education transport appeal process

13. Councils should have an appeals process in place for parents who want to appeal about the eligibility of their child for travel support. The statutory guidance recommends councils adopt the following appeals process:

• Stage one: review by a senior officer; and

• Stage two: an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about complaining to us.

The Council’s Home to School Transport Policy 2024/2025

14. The Council’s Home to School Transport Policy 2024/25 said young people aged 19-25 and with high support needs may be eligible for assistance with transport if:

• they attend, on a full-time basis, an appropriate school, special school or college offering the course being followed, are taking up an apprenticeship or are in part-time education or training when employed, self-employed or volunteering; and

• they meet the national eligibility criteria for access to adult care and support and for access to carer support.

The Council’s Post-16 Home to School Transport Policy 2024/2025 Supporting Statement

15. This Policy was issued in May 2024. The Statement set out the support the Council considered necessary to facilitate the attendance of post-16 learners receiving education or training. The Policy was published after the Council carried out a 28-day consultation with relevant stakeholders and the general public through emails, social media, the press and online. This Policy set out there was no free home to school (or college) transport for young people aged over 16 unless:

• they are aged 16 to 18 years old; and

• they attend the nearest appropriate school or college; and

• they are from a low income family; and

• they have special educational needs and/or disabilities that mean they cannot walk or use public transport to get there; and

• the necessary contribution to the cost of transport for the year is made.

16. It said councils also have a duty to ‘encourage, enable and assist young people with special educational needs and disabilities to participate in education and training, up to the age of 25’. It stated it used the term ‘post 16’ to include both learners of sixth form age and those with educational needs or disabilities up to the age of 25.

17. It said qualifying students would be provided with transport assistance in the form of a Zonal Personal Transport Budget (PTBZ). It said this could be used in any way deemed necessary by parents to support transport requirements for entitled students.

How we considered this complaint

18. We have produced this report following the examination of relevant files and documents and an interview with Ms X.

19. Ms X and the Council were given a confidential draft of this report and invited to comment. All comments received were considered before the report was finalised.

What we found

20. Miss Y has special educational needs, learning difficulties and medical needs. Miss Y has an Education, Health and Care (EHC) Plan. The EHC Plan says she has complex needs and severe learning difficulties and needs support with most tasks.

21. Miss Y started to attend College 1 in September 2024. She was over the age of 19. College 1 is over three miles from Miss Y’s home. It was her nearest suitable college as it was the only placement specified by the Council in Section I of her EHC Plan.

22. Section H2 of Miss Y’s EHC Plan sets out her social care needs. It stated Miss Y needed a direct payment from the Council’s Children and Young People’s Disability Service for a support worker to support her access to the community and develop her independence skills for 4.75 hours a week.

23. In summer 2024 Miss Y’s mother, Ms X, applied to the Council on Miss Y’s behalf to receive free home to college transport. The Council had previously provided free transport to her education setting since the age of three. In late July 2024 the Council emailed Miss Y and confirmed the application for transport assistance had been approved under the criteria that Miss Y was over 16 years of age, attending her nearest appropriate college, had special educational needs (SEN) and was from a low-income family.

24. The Council said a transport policy change in 2024 meant qualifying students over 16 years old with SEN were granted a concessionary Zonal Personal Transport Budget (PTBZ) to facilitate access to college. It said the amount of money it agreed to pay was based on the distance between home and college. Miss Y was assessed as Band 1 (less than five miles from home to college in distance). She would receive an amount equivalent to the number of days Miss Y attended College 1, £1,200 a year (£400 a term). It also said Miss Y may be entitled to a government bursary of up to £1,200 an academic year (£400 a term) to help her access college.

25. In mid-September 2024 Ms X contacted the Council again and requested free home to college transport for Miss Y and for it to review its decision. She:

• said due to Miss Y’s disabilities she required additional support to access her education including the provision of transport;

• said Miss Y had complex needs which meant she could not travel independently and could not use public transport to commute to College 1;

• quoted the requirements of the Education Act 1996, Section 508F for post-19 learners with an EHC Plan;

• said the Council’s PTBZ was unsustainable, and the Council had a duty to ensure Miss Y received her Section F special educational provision. Without home to college transport, she risked exclusion from further education; and

• said the Council had a duty under the Care Act 2014, Equality Act 2010 and Article 24 of the United Nations Convention on the Rights of Persons with Disabilities to support disabled adults, ensure they were not disadvantaged and have equal access to education.

26. In late September 2024 the Council re-considered the application under stage one of its appeal process but upheld its refusal. In summary it said:

• it had assessed Miss Y as entitled to transport assistance in accordance with the eligibility criteria in its Home to School Transport Policy 2024/2025 and Post-16 Home to School Transport Policy Supporting Statement 2024/2025;

• it had offered Miss Y a personal transport budget of £1,200 a year to support access to College 1; and

• Miss Y may be eligible to claim a government bursary for 16-19 year olds and gave a link to the latest guidance.

27. Ms X remained unhappy with the Council’s decision and asked for an appeal at stage two. Ms X said Miss Y should be awarded transport to College 1 for the following reasons.

• Miss Y was between 19 and 25 years old with an EHC Plan and needed one to one support at all times for her safety, she needed transport to enable her to attend education safely.

• Miss Y could not travel independently due to her complex needs and denying transport denied her access to education, which contravened the Equality Act 2010.

• The Council had inconsistently applied its policy as she was aware of students with similar needs who had been awarded transport.

• The current decision placed an unreasonable burden and economic impact on the family when Miss Y was an adult. It meant Ms X lost work and it led to financial strain.

• Having the family take her would have a negative impact on Miss Y’s independence, social inclusion and future prospects.

28. In mid-December 2024 the Council held the stage two transport appeal. Ms X attended the appeal and repeated her arguments made above and added:

• the Council solely treated Miss Y’s case as a post-16 transport issue when she was a post-19 adult learner and there are different legal tests. The policy change and stage one appeal made no reference to its adult learner obligations;

• the Council’s own figures showed the actual cost for Miss Y’s transport would be £15,200 a year but it offered a personal budget of £1,200 expecting the family to bridge the gap of £14,000; and

• there was a financial discrepancy between Miss Y’s personal transport budget and the actual transport cost.

29. Relevant information from the Council’s statement at the appeal and minutes from the appeal included:

• when the Council changed its Transport Policy in 2024, it decided transport provision for students over 16 years old would be provided by a PTBZ to entitled students to contribute to their travel costs;

• when Ms X asked how transport was not “necessary” for Miss Y the Council responded “the policy had set budgets for students with additional needs, including Miss Y”. Ms X asked why Miss Y was treated as post-16 when she was between 19-25 years old, the Council responded Miss Y would still be classed as post-16;

• when Ms X argued the Council had a responsibility to provide transport assistance the Council responded “unlike under-16 students, the Council was not obliged to provide transport assistance for students over 16 years of age but it had chosen to provide support”;

• the Council confirmed the sum of PTBZ was based on distance;

• in response to the Council’s query Ms X explained she did not have support locally to help transport Miss Y to college;

• the appeal Chair queried the Council on what the legislation said about the impact on families. The Council said the legislation did not say much on over 16 travel, only what the Council deemed necessary with the Council’s Policy providing the PTBZ to contribute to costs for travel; and

• the Council suggested alternative travel options for Miss Y including a concessionary fare bus pass which would allow her and a companion to travel on public transport for free, the PTBZ could be used to pay for an alternative driver to drive Miss Y’s Motability Vehicle provided as part of Miss Y’s Personal Independence Payment (PIP).

30. The Council’s appeal pack included estimate transport costs for Miss Y, including:

• mileage costs for transport to College 1, £502;

• PTBZ maximum of £2,000 a year; and

• individual transport, such as a taxi, £10,450 plus the cost of a passenger assistant £4,750. Total £15,200.

31. The appeal panel did not uphold Ms X’s appeal. It concluded the Council’s Policy had been correctly applied and there was insufficient justification for departing from the Policy. Following changes to the Council’s Policy, Miss Y qualified for transport assistance which would be provided through the PTBZ. Miss Y had a Motability Vehicle as part of her PIP. Travel options for Miss Y including Miss Y’s provided Motability Vehicle and the PTBZ could be used to pay an alternative driver to drive Miss Y to College 1. Miss Y had been building confidence in using public transport and Miss Y was entitled to a concessionary fare bus pass which would allow her and a companion to travel on public transport for free. There was alternative bursary funding which could be explored by Ms X.

32. Ms X remained unhappy and complained to us. Ms X explained she could not continue to transport Miss Y both to and from College 1 and there were no family and friends available who could transport Miss Y. Miss Y cannot drive and Ms X paid a support worker from Miss Y’s social care package to transport Miss Y to college each morning from September 2025, and Ms X brought Miss Y back from college.

33. Ms X made a separate transport application for the 2025/26 academic year. The Council again approved the same PTBZ offer for Miss Y. Ms X accepted the Council’s offer and did not appeal again. Ms X told us there was no material change in Miss Y’s circumstances in relation to her need for transport and Miss Y’s need remained the same. Ms X said she did not pursue an appeal with the Council in relation to the 2025/26 academic year not because she accepted the Council’s position, but because we were already investigating this complaint. She did not consider it appropriate to run parallel appeal processes while our investigation was ongoing.

Conclusions

34. The law sets out a statutory duty for councils to provide free transport to relevant young adults aged 19 or over where they decide it is “necessary” to do so to facilitate their attendance. The Council has a distinct duty to make such arrangements as they consider “necessary” in respect of relevant young adults 19-25 years old with an EHC Plan for the purpose of facilitating their attendance. Different duties apply to young people of sixth form age and adult learners with an EHC Plan.

35. The Council’s updated Transport Policy 2024/2025 and Supporting Statement 2024/2025 failed to clearly set out its statutory duty to provide free transport if it is “necessary” for 19-25 year olds with an EHC Plan and instead focused on the 16-18 year old age group and the financial contributions families would need to make. It appears the staff at the Council are confused by the different duties. The Council’s post-16 Transport Policy is not in line with the Education Act or caselaw for adult learners with EHC Plans which is fault. This fault may have affected others who meet the legal criteria for post-19 education transport but who the Council wrongly treated as post-16 sixth form learners where different rules apply.

36. The Council confirmed Miss Y was ‘eligible’ for transport assistance because she was over 16 years of age, attending her nearest appropriate college, had special educational needs (SEN) and was from a low-income family. However, the Council did not specifically state it was “necessary” to make arrangements for transport to facilitate Miss Y’s attendance at the college named in her EHC Plan. Because the process the Council followed was flawed, we can question its decision. The Council’s fault caused Miss Y and Ms X uncertainty. We cannot say what decision the Council would have made, in respect of transport to College 1 for Miss Y, if it had properly considered the law. The Council has agreed to re-take its decision applying the correct legal test for post-19 learners and if refused, offer new appeal rights.

37. The Council’s updated post-16 Transport Policy 2024/2025 meant Miss Y received a Zonal Personal Transport Budget to help to contribute towards the cost of her college transport. This was a standardised distance-based approach and it suggested travel options for Miss Y. In response to a draft of this report, the Council said this was because the award was for discretionary transport support as it did not believe it was “necessary” for Miss Y and therefore it was not intended to be free. However, this is not clear either from its appeal minutes or its decision letter that this was a discretionary award or that it properly considered if transport was “necessary”.

38. If the Council decided it was “necessary” to facilitate Miss Y’s attendance at college, the Council would need to calculate how the personal budget of £1,200 a year could be used to ensure she could receive free travel to attend college. It would need to consider her individual circumstances and the costs that she would incur. To ensure her transport was free, she would need to either pay someone to drive her Motability Vehicle twice a day and get mileage costs for her journeys, or she would need to pay someone to accompany her on her journeys on public transport. Those costs are likely to exceed the £1,200 annual PTBZ as the Council had already indicated a personal assistant in a taxi would cost over £4,000 without the additional costs of Miss Y’s transport.

39. For the academic year 2024/2025 Ms X drove Miss Y to college and back. From September 2025, Ms X employed a support worker to drive Miss Y to college, using direct payments for Miss Y’s social care budget and Ms X drove her home. Ms X was not obliged to transport Miss Y as Miss Y is an adult. If the Council concludes travel assistance was necessary for Miss Y, she should not have had to use money intended as part of her care package support to use her personal assistant to drive her to college. The personal assistant was meant to support Miss Y’s care needs under the Care Act 2014 for her access to the community and to develop her independence skills, not her education needs.

40. Several times the Council said Ms X should consider applying for a 16-19 year old government bursary. Miss Y would have been too old to apply for that bursary. The information given was incorrect and was further fault. This demonstrates the Council and stage two panel’s lack of understanding of the post-19 school transport legislation. This did not cause Ms X an injustice because she did not take time considering this bursary option for Miss Y but added to the uncertainty that the Council had failed to consider Miss Y as a post-19 adult learner.

41. Ms X continually raised the same arguments the Council had failed to consider the post-19 duty under section 508F of the Education Act 1996 and had confused it with the sixth form learner duties. Once she had pointed out the Council’s error in September 2024, she should not have had the frustration and time and trouble pursuing her complaint.

42. The Council consulted on the proposed Transport Policy in spring 2024. It was approved by the Council in May 2024 and implemented in September 2024. The 28-day consultation was publicised in several ways including emails, social media, the press and online. There was no fault in the way the Council conducted public consultation for the amended policy. However, its post-16 Policy was flawed.

43. In response to a draft of this report, the Council has accepted our recommendations but does not accept our findings of fault. It told us it awarded the PTBZ for Miss Y using its discretionary powers as it believed the criteria for free transport (“necessary”) were not met. It said it is confident it has a robust decision-making process which has been rigorously validated through external review.

44. However, we are not persuaded by its comments and maintain our findings that there was fault in the process. The Council failed to articulate the statutory test correctly in its post-16 Policy, appeal notes and decision letter. Again:

• in the appeal, it repeatedly referred to matters only available for sixth form pupils such as the bursary. This brings doubt into the Council and panel’s understanding of Miss Y’s age and situation;

• when asked by Ms X why the Council thought it not “necessary” the appeal notes show the Council responded that it had set budgets for students with additional needs. Its budget is not a consideration for the test of necessity, only whether it is necessary to facilitate her attendance at her place of learning;

• the appeal notes show the Council said it was not legally obliged to provide transport to students over the age of 16, unlike those under the age of 16, but had chosen to provide this support to some. This statement is correct for sixth form learners but is incorrect for post-19 learners as it is obliged to arrange free transport if it is deemed “necessary”;

• its policy also did not distinguish between the different rules in law for sixth form learners and post-19 adult learners, where the “necessary” test applies. The Policy appears to treat all those above the age of 16 in the same way when there are different tests in law; and

• following a question from the Chair of the Panel, the Council said that entitled students were “required” to contribute to travel costs alongside the Council’s contribution. Again, this can be correct for sixth form learners but for post-19 learners it is not where it is deemed “necessary”.

Recommendations

45. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended).

46. In addition to the requirement above, to remedy the injustice caused to Ms X and Miss Y, the Council has agreed that within one month of the date of this report, it will:

• apologise and pay Ms X £500 to acknowledge her avoidable frustration and the avoidable time and trouble caused to her by the Council’s failings with Miss Y’s home to college transport and appeals process identified in this decision. We publish Guidance on Remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apology we have recommended; and

• reconsider the transport application, taking into account its statutory duty to provide free transport to relevant young adults aged 19 or over where they decide it is “necessary” to do so to facilitate their attendance, providing a new decision and fresh appeal rights.

47. The Council has also agreed that within one month of the date of this report, if the Council concludes it was necessary for Miss Y to receive transport, then the transport should have been free. If so, the Council will reimburse Ms X for the costs she and Miss Y incurred since September 2024. The Council will calculate the mileage costs when Ms X or Miss Y’s personal assistant transported Miss Y to or from College 1 from September 2024 until it puts free transport in place. It will also reimburse the money Miss Y used from her personal budget intended for her social care needs to employ someone to drive her Motability Vehicle to college during the period. The Council may deduct the PTBZ already paid to Ms X and refund her the difference to reflect the costs incurred on the occasions she transported Miss Y to or from College 1.

48. The Council has agreed that within three months of the date of this report, it will:

• review its procedure and provide training for stage one and stage two staff and appeal panel members for determining transport applications and appeals from adult learners 19-25 years old to ensure it is in line with the Education Act 1996, to ensure the Council decides whether transport is “necessary” and if it is necessary, transport is provided free of charge based on the individual circumstances of the young person; and

• ensure relevant Council Transport officers appropriately signpost applicants to 16-19 bursaries. This will only be included for students of this age range.

49. We have the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 s 31(2B))

50. To remedy the injustice to those people who are also caused an injustice by the Council’s fault, it has agreed within three months of the date of this report, to review all transport applications submitted since September 2025 for 19-25 year olds with EHC Plans that were successful and received a PTBZ. The review will determine if transport was “necessary” to facilitate their attendance at an education placement, and if so whether a PTBZ ensured the transport was free. It will action repayments and free transport as necessary.

51. The Council has also agreed that within six months of the date of this report, it will review and amend its Transport Policy and Post-16 Transport Supporting Statement to ensure it:

• clearly sets out the difference in its duties between sixth form and adult learners;

• includes a separate section for post-19 adult learners setting out its duties under the Education Act 1996; and

• makes clear what information it uses to calculate the costs to ensure transport is free of charge where it is considered “necessary” for relevant young adults with an EHC Plan.

52. The Council has also agreed that within six months of the date of this report, it will consider its duties under the Care Act 2014 so where applicable it supports disabled adults to attend post-19 education. Before the policy is changed, the Council will remind relevant staff making decisions about 19-25 year old school transport arrangements of the statutory guidance for this age group.

Decision

53. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Ms X and Miss Y. The Council has agreed to take the action identified in paragraphs 45-52 to remedy that injustice.

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