Summary: There was fault in the way the Council considered representations about the impact on a family of refusing post-16 transport support. The fault casts doubt on the decision reached. The Council will provide an apology, review the decision, and make service improvements.

The complaint

1. Mr X complains about the Council’s decision to refuse his application for post-16 home to school transport, and about the subsequent appeal for his daughter, Y.
2. Y attends a special school which is named in Y’s Education, Health and Care (EHC) plan.
3. Mr X complains:
• The Council based its decision on assumptions rather than evidence;
• The Council applied a test of ‘exceptional circumstances’ which Mr X considers was the wrong test;
• The Council failed to carry out a travel or risk assessment;
• The Council relied improperly on budgetary considerations;
• The Council did not lawfully exercise discretion in line with statutory guidance.
4. Mr X’s complaint form to us said Y could not access her Tribunal-named education without transport support from the Council, and one parent had been forced to stop working because of the Council’s decision. Subsequently I understand Mr X has been able to purchase a spare seat on Council transport, but this is not guaranteed. Mr X is also unsure if he is paying more than would be the case if Y was eligible for support under the Council’s policy.

Back to top

The Ombudsman’s role and powers

5. 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 future we may recommend a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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.
7. 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

8. I considered evidence provided by Mr X and the Council.
9. I 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.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
11. 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

Relevant law and guidance - post-16 school transport

12. 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.
13. Councils should also have regard to the relevant statutory guidance ‘Post-16 transport and travel support to education and training’ (‘The Guidance’), 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.
14. The Guidance 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.
15. The Act and Guidance are silent on the issue of parents needing to accompany post-16 students to and from their setting.
16. 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.”
17. The Court set out relevant considerations councils should consider, including the effect of having to drive the pupil to school on the parent and the pupil, whether there is shared transport available, 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 this list of 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 expensive Council-arranged transport.
18. In TYC (by his mother and litigation friend KVD) v Birmingham City Council [2025] EWHC 623, the parent said the Council had made an unreasonable assumption she could change her work pattern when the impact of no transport support would be she had to give up work and lose her income. The Court found councils must act reasonably in the performance of their functions and should not have a blanket policy of never providing discretionary travel. They must properly consider, and engage with, the reasons given by the parent as to why they consider that their child’s particular circumstances are exceptional and justify an award of travel support to school.
19. The Court found the Council had an expectation working patterns would not normally be considered good reasons for a parent not to accompany their child but, had failed to consider whether, in the “particular circumstances”, it was “reasonable” to expect the parent to give up work to accompany TYC. By disregarding this material fact, the Council’s decision was rendered irrational.
20. 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”. While this is a post-19 transport case, we consider the same considerations in exercising discretion for sixth-form pupils would apply.
21. The Ombudsman’s expectation is that councils consider each case on its own facts and that where transport support is refused the Council should be able to evidence there is a safe, practicable and affordable way for the young person to access their education.
22. Where support is not provided under the Act, a Council may want to consider assistance under s.2(c) of the Chronically Sick and Disabled Persons Act 1970 to enable the young person to take advantage of educational facilities available to them.
23. Families can also ask the Secretary of State for Education to direct the Council to make arrangements for the provision of transport to facilitate the attendance of a sixth form pupil (s.509AA(9) The Act).

Council’s policy

24. The Council’s travel policy statement for 2025-6 says the Council will only provide travel assistance for learners of sixth form age where this has been demonstrated as necessary for the young person to access their education provision. Where support is awarded, this will usually be in the form of an Independent Travel Allowance (ITA) for families and young people to make their own arrangements. In exceptional circumstances where an ITA cannot facilitate attendance, families can make representations via the appeal process.
25. The policy sets out relevant criteria the Council will consider, which includes those set out in the statutory guidance. The Council’s criteria include considering whether “there is a family member or carer who is willing and able to transport the student and if not, why it would not be possible and reasonable for them to do so”. The policy goes on to say circumstances such as a parent or carer’s work schedule or having multiple children attending different schools are “generally not considered sufficient reasons for a parent or carer being unable to facilitate their young person’s journey”.
26. Where support is provided the Council asks for a contribution of £951.12 per year, reduced to £689.67 for students in receipt of certain benefits. Where the offer is an ITA, the financial contribution is not payable.

What happened

27. Y received council arranged and funded transport while compulsory school age.
28. Y’s EHC Plan was being amended to name School Z for sixth form when Mr X applied for transport support.
29. The Council assessed the application and found the distance was over 20 miles and by public transport / walking would be a journey time of almost 2 hours each way.
30. Mr X’s application was refused on the basis the family had not demonstrated Y was prevented from attending School Z without assistance from the Council. The Council accepted public transport may not be suitable but was not satisfied alternatives had been considered by the family or that extenuating circumstances had been demonstrated. The Council also said as the EHC Plan had not yet been finalised it could not fully consider entitlement as it did not know if School Z was the nearest suitable setting.
31. The Council explained appeal rights and gave guidance that extenuating circumstances may include, but were not limited to:
• Safeguarding concerns;
• Disability, mobility or mental health needs that would make it difficult for the young person to access public transport even if accompanied;
• Parent / carer has demonstrated why they, for social, medical, financial or personal reasons, could not facilitate the young person’s journeys to and from their education setting and this has been evidenced. The Council said work commitments or the impact of siblings attending different schools was not generally considered an extenuating circumstance, but all appeals would be considered on a case-by-case basis.
32. The Council advised for age 16-19 only, Mr X may wish to consider applying for a concessionary (fee paying) seat on an existing vehicle, although this was not guaranteed and could be withdrawn at any time.
33. Mr X appealed at stage one. He explained both parents worked and commuted for their jobs and daily transport by car with a parent was not feasible. Mr X said without Council support Y would frequently miss school. Mr X also referred to one parent having medical conditions.
34. The Council again refused the application referring to challenging financial circumstances for the Council. It said it was not required to provide transport for learners of sixth form age but retained discretion to do so in cases where there is sufficient evidence without support the young person would be unable to access education. The Council said Mr X had not demonstrated a clear need or clearly evidenced why parents / wider family members or a trusted adult were unable to support Y’s access to education. The Council said the journey would take 35-55 minutes by car and Mr X had not clearly demonstrated why parents could not facilitate transport or why it would be unreasonable to expect parents to do so. The Council noted it had still not updated the EHC Plan to name the school, and it was possible closer alternative colleges may offer similar courses.
35. Mr X appealed to stage two with supporting evidence. By this time Y’s EHC Plan had been updated to name School Z.
36. Stage two included an oral panel hearing. The Council noted Mr X’s main representations as:
• Mr X disagreed exceptional circumstances was the relevant test and said the test was whether Y could reasonably and safely access education without assistance.
• Mr X argued the Council’s refusal was based on an absence of evidence Y would be unable to attend education without council transport. Mr X said there was no positive evidence that Y could attend, there was no travel assessment, risk assessment or explanation how Y would manage a long, complex journey or keep safe. Y’s previous school had provided evidence Y could not travel independently.
• Mr X said Council resources could not override an individual child’s inability to safely access their Tribunal-named placement.
• The Council accepted Y could be added to an existing route at minimal or no cost.
• The Council was applying an incorrectly high threshold, made assumptions about Y’s abilities, and prioritised policy considerations over Y’s evidenced needs.
• A parent had given up work to support transport which was taking four hours per day by car, placing pressure on family income.
• Y was accessing the placement named in the EHC Plan by Tribunal.
37. The Council’s representations were:
• Financial resources had to be focussed on younger pupils.
• The Council should provide travel assistance where it is necessary, but it has discretion to decide when it is necessary; that is when it had been sufficiently evidenced that without support from the Council the young person would be prevented from accessing education.
• The Council considers whether parents may be able to take reasonable measures, or make adjustments, to transport the young person and be satisfied why for social, medical or financial reasons they cannot.
• The Council considered it is reasonable for the family to make adjustments to support the 27 miles journey. The family’s case was that it was not reasonable to expect them to do this. The Panel would need to consider distance and reasonableness when considering the case.
• The Council noted parent employment commitments, but this did not alter its decision as it would not be sustainable to provide assistance where the overriding reason was work or other childcare commitments as this affects families across the County.
38. The panel considered the policy and was satisfied ‘within the constraints of the system’ it had been ‘correctly, fairly and impartially applied’ in Y’s case. The panel considered the provision of transport support discretionary, and that the Council had no legal duty to assist. The panel decided it was reasonable for Y’s parents to facilitate Y’s journeys. The decision letter noted there were several options open to the family to explore and neither parent was asked to undertake the journey every day. The Panel agreed that parental work commitments were not considered when eligibility for Travel Assistance was assessed. The Panel decided unanimously that “it considered based on the evidence provided that the threshold of extenuating needs had not been met and that [Mr X’s] reasons were not sufficiently strong enough grounds to make an exception to normal Policy”. It determined that responsibility for funding the cost of Travel Assistance should not be passed to the Council on this occasion.

Analysis

Fault

39. The Council is entitled to apply a test for post-16 transport assistance only when there are exceptional or extenuating circumstances. The Courts have found (for example in TYC) that a policy that discretionary transport assistance would not be provided absent exceptional circumstances, and a parent’s working pattern would not normally be considered a good reason for a parent being unable to accompany the young person to school, were not subject to challenge given the wording in the Act and that budgetary considerations were a relevant consideration.
40. I would not criticise a Council for failing to undertake a travel or risk assessment where it had concluded a parent could drive the young person and no safety concerns about the young person travelling with the parent had been raised. Councils are allowed to ask that parents facilitate transport where this is reasonable.
41. Councils must properly engage with the reasons a parent gives for why their circumstances are exceptional. The Court has found there will be cases “where it is not reasonable to expect [parents] to drive a child to school”. Therefore, while post-16 transport is discretionary, this is not a pure discretion, and the expectation is support will be provided where it is “necessary”. This is what the Council’s own policy and representations to the appeal panel say. The issue for the panel was whether it was ‘reasonable’ to ask Y’s parents to facilitate Y’s attendance by driving Y to and from school.
42. Our expectation is the Council should consider the factors set out in R (on the application of S) v Edu Action (Waltham Forest) [2006], and the Guidance, being the impact of not providing support on the pupil and the parent, whether there is shared transport available, the cost to the Council or parent, and any other matter put before it. We then expect to see that a ‘careful and sensitive’ assessment of these factors has been considered by decision makers, and the records show how these factors were weighed up, and the conclusions reached.
43. I am not satisfied the Council’s records do show adequate assessment of the parent’s circumstances. There is no evidence of:
• discussion about the parents’ work patterns and whether these were flexible;
• discussion about the financial impact on their income or whether this was affordable for the family;
• engagement with the evidence that one parent would have to give up work if no assistance was provided;
• whether the Council considered if a guaranteed seat on existing transport could be provided, rather than the family needing to rely on a spare seat being available.

This is fault.

44. The panel found it was reasonable for parents to drive Y but have not given adequate explanations as to why. It is not enough for the Council to say it is reasonable because of its own cost considerations; it must actively engage, consider and explain, with reference to all the reasons the parents put forward, why it is reasonable. The Council must be willing to make exceptions when there is evidence that to ask a parent to drive would not be reasonable, even if this would necessitate expensive Council provided transport. I am not satisfied the Council has explained its rationale for deciding the impact on the parents is reasonable. This is fault.
45. In this case, the evidence points to there being a nil or minimal cost option of a seat on existing transport. The panel has applied cost considerations as a blanket policy and failed to weigh up the cost to the Council of providing support and the cost to the family of not doing so. This is fault.

Injustice

46. The faults I have identified cast doubt on the decision reached. This is an injustice. Mr X has also been put to additional time and trouble going through an application and appeal process which was not sufficiently thorough and needs to be repeated.
47. I have not seen evidence of financial loss. My understanding is Mr X was able to purchase a spare seat, and this was for a similar sum to the financial contribution Mr X would have been expected to make had Y been found eligible for transport support.
48. Mr X does however have the uncertainty of whether a spare seat will remain available for purchase which would not be the case if Y had been found eligible for support.

Back to top

Agreed Action

Within four weeks of my final decision:

49. The Council will apologise to Mr X for the faults identified in this decision statement.
50. 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.
51. 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 and any other relevant factors (for example the cost to the council of options available);
• provide appeal rights in the usual way if Ms X disagrees with the Council’s decision.

Within two months of our final decision:

52. 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 consider 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.
53. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

54. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Back to top

Investigator's decision on behalf of the Ombudsman