Summary: There was fault in the way the Council and an appeal panel declined Ms X’s request for post-16 transport support. The Council has not engaged fully with Ms X’s representations, has not adequately shown it has considered the impact on Ms X and her son of not providing support, has not considered affordability, and has not provided adequate reasoning for its decision. The Council will apologise and retake the decision. The complaint is upheld.

The complaint

1. Ms X complains the Council has refused to provide home to school transport for her son, Y’s, post-16 education. Ms X says without Council arranged transport Y will miss part of the school day as she will not be able to accompany Y due to needing to be home for Y’s sibling’s school transport. They will have to use taxis, which is unaffordable.

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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. 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.
4. 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

5. I considered evidence provided by Ms X and the Council.
6.  We have considered relevant law and guidance including the following caselaw:
• R (S) v Education (Waltham Forest) and the London Borough of Waltham Forest [2006] EWHC 3144
• Staffordshire County Council v JM [2016] UKUT 246 (AAC)
• R (on the application of Drexler) v Leicestershire County Council [2020] EWCA Civ 502
• TYC (by his mother and litigation friend KVD) v Birmingham City Council [2025] EWHC 623.
7. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
8. 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

9. 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.
10. 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.
11. 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.
12. 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 legal duties on councils 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.”
13. The Court 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. The Court said decisions about the type of transport support required a “careful and sensitive assessment, based so far as possible on reliable information or evidence”. The Court noted these factors were “not necessarily exhaustive” and it will be for councils “to consider any matter which is put before them or which they consider relevant in making the assessment required”. The Court recognised the need for exceptions and that for some students the only appropriate provision would be Council-arranged transport.
14. In TYC (by his mother and litigation friend KVD) v Birmingham City Council [2025] EWHC 623, the Court said councils “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”.
15. In a post-19 case, Staffordshire County Council v JM (SEN): [2016] UKUT 246 (AAC), the Courts said while Councils have discretion as to when it is necessary to provide support: “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”.

Council’s policy

16. The Council issued an updated travel policy statement for 2025-6 setting out the support it would provide to facilitate the attendance of post-16 pupils at their education settings. A student will be eligible if they are aged 16 to 25 with a recognised learning difficulty or disability and:
• Have an Education, Health and Care (EHC) Plan and attend the setting named in the Plan; and
• They live more than three miles from the setting measured by walking route, and
• They attend the setting for at least twelve hours of guided learning each week of the academic year.
17. The policy says transport assistance may be provided where a young person falls outside the above criteria but has exceptional circumstances such as:
• The complexity of their medical needs and/or special educational needs or disability;
• Where transport assistance is the most efficient use of council resources;
• Where it is considered to be in the best interests of the young person (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.

What happened

18. Y attends a community special school 2.7 miles from home. Pre-16 the Council provided Y with free home to school transport by minibus with an escort.
19. The journey would be over an hour walking or via two buses.
20. Ms X applied for post-16 transport in Spring 2025. Ms X said Y could not travel on his own, it was too far to walk and would take too many buses, and she could not accompany Y as she had other children to get to school.
21. The Council refused Ms X’s application because the journey was under three miles which was the threshold to be considered eligible under its 2025-6 policy.
22. Ms X appealed this decision. The Council refused support on the basis Y’s circumstances were not exceptional and there was no reason to overturn the original decision.
23. Ms X appealed to stage two, which was an appeal panel. As appeals were delayed until the Autumn term the Council continued to provide Y with his existing minibus transport pending the appeal being heard.
24. Ms X explained Y was learning disabled and could not travel alone. Y had a disabled sibling and Ms X needed to be at home to meet school transport for the sibling. Ms X said if she had to take Y to school then Y would be two hours late each day or it would cost over £100 per week to use a taxi.
25. The Council’s stage two panel noted the Council’s case was:
• Based on distance below three miles;
• Y had been assessed as capable of travelling to and from school accompanied as necessary by a responsible adult;
• There was no expectation by the Council that Y walk, it was for parents or carers to determine what arrangements would be suitable.
26. The Council’s stage two panel noted Ms X’s case was:
• Y had developmental delay and could not travel independently;
• Family could not accompany Y due to other caring responsibilities;
• Public transport and taxis are unsuitable or unaffordable;
• Ms X was requesting an exception to the usual distance rule due to special educational needs and family circumstances.
27. During questioning at the oral hearing, the panel noted:
• Ms X and Y had tried the public bus, but Y was late for school;
• Y could get agitated or anxious on the bus and needed an adult to support him;
• Y’s sibling had Council provided transport to a different setting and Ms X needed to be at home to meet this morning and afternoon;
• Y would need an escort in a taxi;
• Taxi costs were £10 each way;
• The setting was the nearest suitable school named on Y’s Education, Health and Care (EHC) Plan;
• Ms X did not drive or know anyone who drove.
28. The clerk noted the panel members deliberations as follows:
• ‘Bit more unwilling to overturn this one’. Not a huge distance. Has a lot complex needs. Need to make arrangements and when they will be home from school.
• Inclined to agree, not a great distance and developing independence, benefits could be used to get a taxi.
29. The decision was to uphold the original decision to refuse transport assistance.
30. The decision letter acknowledged Y was currently unable to travel without adult support and supporting Y’s travel arrangements was a ‘challenge’ but the panel thought that logistically this was an accessible journey and with adult accompaniment Y could travel the 2.7 miles each day to and from school. It was felt the evidence was not strong enough to overturn the original decision, so Y’s transport support would end in December 2025.
31. Following the stage two decision Y’s school provided further evidence that by car the journey was over 3 miles and by bus Y would need to travel into the city centre and out again. The school said the journey by public transport was not possible even with adult support and it would have a negative impact on Y’s anxiety and learning and may lead to absences.
32. I have not seen evidence the Council considered the matter further.
33. In response to my draft decision Ms X told me since transport was removed, they are using taxi’s costing £40 per day and spending over £800 per month on taxis. Y also cannot do a full school day due to only being able to travel between the times of Y’s sibling’s school transport. Y is also upset and does not understand why they cannot use school transport anymore.

Analysis

34. Councils have a legal duty to have a transport statement setting out the transport arrangements it considers necessary to make to facilitate attendance at education or training for learners of sixth form age. While councils have discretion to decide what is necessary, the overall intention of the sixth form age transport duty is to ensure that learners of sixth form age can access the education and training of their choice; and if support for access is requested, this is assessed and provided where ‘necessary’.
35. The Ombudsman’s expectation is that where assistance is refused the Council will have satisfied itself that there is a safe, practical and affordable way for the young person to access education. Where facilitating attendance requires parental accompaniment, we expect to see evidence the Council has considered concerns raised by parents on a case-by-case basis and, in line with caselaw, considered the effect on the parent, the pupil, and the cost. (R (on the application of S) v Edu Action (Waltham Forest) [2006])
36. Ms X’s case at appeal was:
• she is a single parent with two disabled children requiring adult supervision and support to travel to their education settings at the same time;
• accompanying Y would mean Y would not be able to complete a full school day as they would need to travel between the times Y’s sibling was collected and dropped off by their transport;
• they would have to use public transport via two buses each way and Y would be late daily;
• using taxis was not affordable and in any event, Y would also need an escort.
37. I am not persuaded the Council or appeal panel have sufficiently engaged with the arguments Ms X raised why it was not reasonable for her to accompany Y. The decision letter refers to the journey as a ‘challenge’ but found logistically this was an accessible journey with adult support. The decision makers have not explained how it was logistically possible considering Ms X’s need to support Y’s sibling at the same time. The Council and panel have not explained whether Y will be unable to attend a full school day and if so, why this is reasonable. The Council and panel did not seek any evidence about affordability, the panel referred to Ms X using benefits for taxis, but I cannot see that there was any evidence before the panel about what benefits Ms X or Y received, or whether using these for school transport was affordable for the family. The panel member referred to Y developing independence but the evidence before the panel (which the Council agreed) was Y was not an independent traveller. Y was currently requiring an escort even when travelling by minibus. The panel’s rationale is unclear.
38. 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 law, guidance and its policy to her family’s circumstances

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Agreed Action

39. 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.
40. 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, inconvenience, time and trouble caused.
41. 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, and properly record and explain the reasons for its decision addressing the specific representations Ms X has made;
• provide appeal rights in the usual way if Ms X disagrees with the Council’s decision.
42. If the Council makes a different decision and awards council-arranged transport, it should consider providing Ms X / Y with a financial remedy to acknowledge the period transport support has been missed. If Ms X and the Council cannot agree a remedy, Ms X can refer this back to the Ombudsman for a decision.
43. We have received similar complaints and made recommendations for service improvements in those cases which the Council has accepted, I therefore do not need to repeat these.
44. The Council will provide us with evidence it has complied with the above actions.

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Final decision

45. I find fault causing injustice. The Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman