Summary: There was fault in the way the Council considered Mr X’s application for post-16 transport assistance. The Council confused the law and policy for pre and post 16 pupils and this casts doubt on the accuracy of the decision made. The Council has agreed to review the decision, apologise, make a symbolic payment to acknowledge the faults in the appeal process, and make service improvements.

The complaint

1. Mr X complains on his own behalf, and behalf of his child, Y. Y has an Education, Health and Care (EHC) Plan. Mr X complains the Council failed to follow the correct process when reassessing Y’s home to school transport needs at sixth form age.

Back to top

The Ombudsman’s role and powers

2. 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)
3. 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(1), as amended)

Back to top

How I considered this complaint

4. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
6. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Back to top

What I found

Post-16 school transport

7. Sections 509AA – 509AC of the Education Act 1996 (‘The Act’) set out what a council must consider when setting its policy for school transport for those of sixth-form age.
8. 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.
9. 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.
10. 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.
11. The Act and guidance are silent on the issue of parents needing to accompany post-16 students to and from their setting. Caselaw (R (on the application of S) v Edu Action (Waltham Forest) [2006] EWHC 3144 (Admin) states that given the different duty for pre and post-16 pupils, parents should not be encouraged to believe they should do nothing to help get their children to school, on the basis if they do not the council will have to, but:

“There is no absolute rule that the parents of children over 16 who cannot travel to school on their own are expected to take them. What parents can be expected to do will depend on their circumstances. There will be cases where is it not reasonable to expect them to drive a child to school. Each case will turn on its facts.”

12. The Court in this case set out relevant considerations councils should take into account, including the effect of having to drive the pupil to school on the parent, the pupil, and the cost.
13. We expect to see evidence that councils have considered applications on an individual basis, taking into account all relevant considerations, when applying their discretion whether to provide transport assistance.

The Council’s age 16-19 transport policy

14. The Council issues a transport policy for students aged16-19 and 19-25. The part of the policy for age 16-19 (sixth form age) says:
• Pupils must reapply for transport when moving from compulsory school age to post-16 education and will be reassessed.
• The Council will exercise its discretion to provide travel assistance to pupils aged 16 to 19 with Special Educational Needs and Disabilities (SEND) where it considers travel assistance is necessary to enable the young person to reasonably access the education or training provision specified in their EHC Plan.
• Particular attention will be paid to the following criteria:
1. Whether the student is in receipt of 16 to 19 Bursary Fund and to what value.
2. Location of sixth form the student wishes to attend.
3. Whether the sixth form is an extension of the school previously attended and named in their EHC Plan.
4. Distance from home.
5. Whether student has SEND or mobility problems that impede access to their placement, would make it unsafe for them to travel independently, or whether the public transport required would be too complex for the young person to be expected to travel independently.
• If the Council agrees to a travel solution it will be provided in a safe and cost-effective manner.
• An initial assessment of the young person’s eligibility for transport to access education will be made by a Travel Officer from the Council reviewing the application form completed by parents/carers. Cases are considered on an individual basis.
• The Council reserves the right to assess the whole family according to their circumstances to offer the most effective travel support.
15. In line with guidance the Council operates a two-stage appeal process.

What happened

16. Y was in sixth form education. Mr X applied for transport assistance from the Council in February 2025. At that time Mr X was transporting Y to and from school, but he explained he would not be able to do so after April 2025 as he was starting a new fulltime job. Mr X had a car but would not be able to use this for school transport due to work commitments.
17. When Y was compulsory school age, Y had attended the same school, and the Council had provided a place on a school bus with a passenger assistant.
18. Mr X stated there was no other adult in the household / family able to transport Y.
19. Mr X explained Y has autism and learning difficulties, lack of awareness of road safety or strangers, a risk of absconding and would not be able to walk safely even if accompanied by an adult.
20. The Council refused the application. The Council has not provided us with the original decision letter or Travel Officer assessment, so I do not know on what grounds the application was originally refused.
21. Mr X appealed to stage one. The stage one appeal was refused on the grounds:
• Y lived 1.8 miles from school which was less than the qualifying 3 miles statutory walking distance for pupils aged 8-16.
• It was manageable for parents to accompany Y this distance.
22. The stage one decision form referenced the Council’s policy for pupils of compulsory school age including the statutory walking distance criteria for this age group, but at the bottom of the form it states the application was considered under the post-16 policy.
23. Mr X appealed to stage two. The case was heard by an appeal panel. Mr X attended the hearing.
24. The stage two decision letter stated the application and stage one appeal had bene refused on distance and family circumstances as the family did not live more than 3 miles from school and Y’s SEND did not prevent him walking if accompanied by an adult.
25. The panel noted Mr X now worked 8am to 5pm but had a vehicle, and Mrs X could not drive and supported a younger child travelling to school. The panel found the distance was within a reasonable walking distance and the decision stated Mr X was available to take Y to and from school and ‘with use of good links to regular public transport’ this was manageable. It found the journey by bus was 15 minutes.
26. The stage two decision form dated June 2025 references the Council’s duties for compulsory school age children. It says that Y’s sibling, who is an adult, can support Y’s travel to school. It records Mr X considered it unfair for Y’s sibling to have to support him. Mr X said this sibling would be starting college in September 2025 so would not be available to provide support.

Analysis

27. The Ombudsman is not an appeal body. It is not our role to decide whether the Council should provide support with Y's transport under the Council's policy; that is the Council's responsibility. We investigate the processes a council followed in its consideration of an application or appeal, to assess whether it made its decision properly. If we find fault in the process, we may ask the Council to take the decision again.
28. The Council and the appeal panel have repeatedly referred to duties and quoted the law for pupils of compulsory school age although this is not relevant to Y’s case. This is fault. For example, the Council has referred to a statutory walking distance of 3 miles in decision letters although this does not apply to post-16 pupils.
29. The Council’s decisions refer to different legal duties even within the same decision forms, this is confusing and casts doubt on what law and policy the decision maker was applying.
30. I am also not persuaded the Council has followed its own policy in Y’s case. The Council’s post-16 policy sets out factors it considers, but few of these are referenced in Y’s case. For example, we do not know if Y was eligible for the Bursary Fund, and the decisions do not record that Y is attending the same school as pre-16, although these are two of the key criteria the Council says it applies.
31. The Council’s policy says all post-16 pupils will have their individual circumstances considered, but there is no assessment of whether Y’s SEND or mobility problems impede access to their placement, would make it unsafe for them to travel independently, or whether the public transport required would be too complex for them to be expected to travel independently. The Council’s policy implies the Council will make an individual assessment of the young person’s ability to travel independently but this is not recorded anywhere.
32. The Council and appeal panel received medical evidence in support of the appeal but has not referred to this in its decisions so I do not know what its views on the evidence were.
33. The stage two panel has stated Mr X can accompany Y to school but also stated he works 8am to 5pm. The panel has not explained why it considered it was reasonable for Mr X to transport Y during working hours or what the impact on him would be. In the accompanying form the Council states a sibling, not Mr X, can accompany Y, but does not address Mr X’s evidence that the sibling will be starting college. It is not clear which adult the Council and panel is satisfied can accompany Y to school and whether it considers he should walk, or go by bus, or whether it has assessed his ability to do either of these.
34. Overall, the Council’s handling of the case has been confused and does not follow the criteria set out in its own post-16 policy. While some of the comments by the panel could refer to both the pre and post-16 polices, others are only relevant to pre-16, which was the wrong policy to apply.
35. These faults cast doubt on the decision reached and the Council should retake the decision with reference to the correct law, policy and considering the individual circumstances. This does not necessarily mean the Council will make a different decision, but Mr X is entitled to a clear decision showing how the Council has applied the correct law, guidance and its own policy to the family’s circumstances.

Back to top

Agreed Action

36. Within one month of our final decision, the Council will 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.
37. Within one month of our final decision the Council will pay Mr X £200 for the time and trouble incurred in the unsatisfactory appeal process to recognise the avoidable distress and confusion caused.
38. Within one month of our final decision the Council will:
• reconsider Mr X's application afresh, with no involvement from staff/ panel members involved previously;
• properly consider all evidence and representations from Mr X, have due regard to the law, statutory guidance and its own policy for sixth form pupils, any medical evidence or individual assessment, and properly record and explain the reasons for its decision;
• If the outcome is not in Mr X’s favour, the Council will offer appeal rights to stage one and two of its transport appeal process.
39. If the reconsideration or appeal results in a decision to provide travel assistance, the Council will consider our Guidance on Remedies and offer the family a suitable remedy for the period transport was missed. If the Council and Mr X cannot agree a suitable remedy Mr X may bring this issue back to the Ombudsman for our consideration.
40. Within two months of our final decision the Council will:
• Review a sample of recent post-16 transport decision forms and letters to check whether staff and officers involved at application, Stage 1 and Stage 2 have correctly referenced only the post-16 law, guidance and policy in the decision-making process and recorded clear and appropriate reasons for the decision.
• Consider whether staff training or further guidance is required to prevent a recurrence of the fault identified in this case or the dip sample.
41. The Council will provide us with evidence it has complied with the above actions.

Back to top

Investigator's decision on behalf of the Ombudsman