Summary: We have found fault in the way the Council considered Ms X’s application for post-16 transport and in how it applied its own policy. The Council has agreed to apologise, make a symbolic payment to recognise time and trouble, to retake the decision, and to make service improvements. The complaint is upheld.

The complaint

1. Ms X complains there was fault in the way the Council decided her application for post-16 home to school transport for her child, Y, who has special educational needs and an Education, Health and Care (EHC) Plan.
2. Ms X complains the Council failed to consider her individual circumstances and the Council’s award of independent travel training (ITT) and an annual personal travel allowance of £1000 would not facilitate her child’s attendance at their special school.

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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. The Ombudsman is not an appeal body. It is not our role to decide whether the Council should provide support with transport under a 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.
5. Councils 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. 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)

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How I considered this complaint

7. I considered evidence provided by Ms X and the Council as well as relevant law, policy and guidance.
8. Ms 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

Relevant law and guidance - post-16 school transport

10. 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.
11. 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 for 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. 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 it is not reasonable to expect them to drive a child to school. Each case will turn on its facts.”

The Court in this case set out relevant considerations councils should consider, including the effect of having to drive the pupil to school on the parent, the pupil, and the cost.

14. In assessing what transport arrangements are appropriate, a council must take into account all relevant considerations arising in the individual circumstances of each case. “They should not have a blanket policy of never providing discretionary travel and must properly consider and engage with the reasons given by a parent as to why they consider that their child's particular circumstances are exceptional and justify an award of travel support to school” (TYC (by his mother and litigation friend KVD) v Birmingham City Council [2025] EWHC 623). In the TYD case the Court found the Council failed to consider whether it was reasonable to expect a single parent/sole earner to give up work to drive TYC to school. By disregarding this material fact, the Council’s decision to provide a cash mileage payment, instead of providing transport, was found to be irrational.

Council’s post-16 transport policy

15. The Council changed its post-16 policy, after a consultation, for the academic year 2025-6.
16. The new policy restricted transport support for post-16 and post-19 pupils to those:
• With an Education, Health and Care (EHC) Plan who attend the setting named in their Plan, and
• Who attend school or college for at least twelve hours of guided learning each week of the academic year; or
• Who meet the criteria of ‘exceptional circumstances’.
17. When a pupil is ‘eligible’ under the policy, the mode of assistance will depend on the level of transport need and may be:
• A free public transport pass (or equivalent cost) for a young person who can travel independently or could make the journey accompanied by an adult.
• Independent travel training (ITT) for a young person with the potential to travel independently, with an award of a free public transport pass on completion of training (or equivalent cost).
• A flat rate annual Personal Travel Allowance (PTA) based on distance from home to the setting to enable the family to make their own arrangements: 3-10 miles, £1000; 10.01-20 miles, £2000; over 20 miles, £3000. The PTA would be pro-rata for part-time students.
• Other transport assistance, such as Council-organised transport, where exceptional circumstance criteria is met.
18. Exceptional circumstance criteria included:
• The complexity of medical needs or special educational needs and disabilities (SEND);
• Because it is the most efficient use of Council resources;
• Where it is considered by the Council to be in the young person’s best interests for example where there is a safeguarding risk, or it is not reasonably practicable to access education if no arrangements were made.
• Particular circumstances around the availability/logistics of independent travel options.
19. The policy notes the Council could exercise discretion to provide assistance outside the above criteria if appropriate in individual’s circumstances.
20. The policy provides for an appeal process.

Ombudsman Guidance

21. We have issued recent public reports on the issue of personal travel allowances (PTA’s). While the Courts have found it is entirely reasonable for councils to wish to avoid the cost of dedicated transport where there is a reasonable alternative, such as a PTA, we would expect councils to:
• Consider the effect of a PTA on parents and young people taking into account their individual circumstances, including cost and affordability to the family.
• Offer a PTA only when it is reasonable in the circumstances to conclude this will facilitate the attendance at education.
• Keep records to show how individual circumstances have been considered and the reasons why the PTA is considered a safe, practical and affordable way to facilitate attendance.
• Ensure decision makers know that where a pupil is eligible under its policy, because the Council has decided it is ‘necessary’ to provide support to facilitate attendance (s.509AA of the Act), the onus is on the Council, not the family, to fund transport provision (subject to an affordable contribution). In some cases, the only way to facilitate attendance will be for the Council to provide a more expensive option than a PTA.

What happened

22. Ms X applied for post-16 transport in Spring 2025 for her son, Y. Y had received Council-arranged transport as a pupil of compulsory school age with an escort.
23. The Council confirmed Y was eligible for ‘discretionary support’ under its post-16 transport statement and decided Y’s needs could be met via a PTA at band 1 (£1000 per year) as they lived between 3-10 miles of their setting. The Council said: “We understand that the PTA may not allow you the flexibility to fully fund your child’s travel assistance for a full academic year. This PTA is intended for use as a contribution towards costs of travel assistance for your child’s Post 16 or Post 19 education”.
24. Ms X appealed the decision on the basis:
• Y could not manage public transport independently;
• There was limited public transport and to accompany Y would take her several hours each day;
• Ms X was unable to drive Y as had limited access to a vehicle;
• The financial contribution was not enough to cover Y’s expenses.
25. The Council acknowledged it would be ‘difficult’ for Ms X to accompany Y and that Y could not currently travel independently. However, the Council stated it could find no reason to overturn the original decision as their circumstances were not exceptional and not eligible for additional discretionary transport support.
26. Ms X appealed to the next stage which was an appeal panel. The Council said it would retain existing access to Council-arranged transport while this was heard.
27. Y started post-16 education in September 2025 at a special school. Ms X told me one morning per week Y travelled during the school day to a college in the city centre with staff from school including an independent travel trainer, then returned to school.
28. The Council’s case at appeal was the offer of a PTA was suitable.
29. Ms X’s case at appeal was that Y was involved in group ITT at school but was not yet competent to travel independently. The route by public transport required Ms X to take several buses, which were infrequent. The journey was too tiring due to her and Y’s medical / disability needs and caused Y anxiety and to miss lessons. Ms X said she was a single parent with limited access to a car and accompanying Y by bus would require her to give up work. Ms X, and Y’s headteacher, said while Y was working on independent travel skills, Y could not currently travel without support.
30. The panel found Y’s level of need was not ‘exceptional’ to justify council-arranged transport. The panel decided an offer of ITT was suitable because it considered Y could go direct to his city centre college from home, rather than travel there with school staff and other students. The panel considered Ms X could then use the PTA for the more complicated journey to school. An award of ITT alongside the PTA was made and Ms X advised interim transport would be withdrawn in mid-December. The Council told me that the offer was for bespoke ITT with a dedicated travel trainer who would support Y on the journey to college.
31. Ms X told the Council she did not agree ITT would meet Y’s needs as independent travel was not currently realistic. Ms X also repeated concerns about her own medical needs, her work, and Y’s ability to use public transport. Ms X told me she would need to take eight buses per day (returning home between drop off and collection) and Y would have to take four buses daily.
32. Ms X’s stage two appeal hearing was disturbed by a fire alarm and Ms X complained to the Council it was rushed, she felt overwhelmed, and could not put her case as well as she would have liked. The Council agreed to rehear the case but, at Ms X’s request, this was deferred until the completion of this investigation.
33. Ms X says the Council agreed to continue interim transport pending the further appeal hearing and our decision on her case, so Y is still receiving the same transport he had pre-16.

Analysis

34. Ms X told me Y is only at college for two hours one morning per week.
35. Ms X’s main concern is the facilitation of Y’s attendance at the special school.
36. The Council has a transport statement for sixth form pupils and has decided Y is eligible for transport assistance under this policy. This means the Council has decided it is ‘necessary’ (s.509AA) for it to provide support to facilitate Y’s attendance. The Council had discretion what support to offer, but the assistance offered must be capable of facilitating attendance in a safe, reasonably practical and affordable way.
37. The Council’s policy is in line with this view as it says the Council will provide a vehicle in ‘exceptional circumstances’, which includes when it not reasonably practicable to access education any other way. The policy says it will take into account the availability/logistics of independent travel options in each case.
38. The question here is therefore whether the Council’s decision makers / panel applied the exceptional circumstances policy correctly. I am not satisfied the Council, or appeal panel, has done so because:
• The Council and panel have not identified the safe, reasonably practical and affordable way Y will attend school.
• The Council has not explained how it has considered Ms X’s evidence she will have to give up work to accompany Y.
• The Council has not explained how it has taken into account that Ms X does not have consistent access to a vehicle.
• The Council has not taken into account the logistics / availability of independent travel options in Ms X’s case. It has not explored whether Y does need to take several infrequent buses as Ms X says, and, if so, whether this is reasonably practical.
• The Council has not addressed the matter of affordability. The Council has acknowledged a £1000 PTA will not cover Ms X’s costs and says the PTA is intended for use as a contribution towards Ms X’s costs of travel assistance for Y’s post 16 education. This is the wrong way round. The Council has accepted support is ‘necessary’ as Y is eligible under its policy. Where support is ‘necessary’ it is not optional. The caselaw and statutory guidance require the Council to ensure any financial contribution from Ms X to the Council’s costs of transport support is affordable for her. There is no evidence in the three stages of the decision making to show the Council has assessed the cost to Ms X of meeting Y’s transport needs via independent options, or whether £1000 leaves her with a residual cost that is affordable given her individual circumstances.
39. These faults cast doubt on the decision reached. The Council should retake its 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 Ms X is entitled to a clear decision showing how the Council has applied the correct law, guidance and its own policy to her family’s circumstances.
40. Y is continuing to receive Council arranged transport and so has not been without support.

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Action

41. Within one month of our final decision, the Council will apologise to Ms 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.
42. Within one month of our final decision the Council will pay Ms X £200 for the time and trouble incurred in the unsatisfactory application and appeal process to recognise the avoidable distress, time and trouble caused.
43. Within one month of our final decision the Council will:
• reconsider Ms X's application afresh, with no involvement from staff/ panel members involved previously;
• properly consider all evidence and representations from Ms 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;
• provide appeal rights in the usual way if Ms X disagrees with the Council’s decision.
44. Within two months of our final decision the Council will consider if it needs to provide decision makers with updated guidance or training to ensure they are considering applications on a case-by-case basis, exercising discretion to issue council organised transport where appropriate criteria is met, and recording its reasons correctly. The Council should share details of the action it decides is required with the Ombudsman.
45. The Council will provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman