Summary: The complainant alleged that the Council delayed in making the required special educational needs provision for his adult daughter, after a Tribunal decision, and the Council failed to consider its Equality Act duties when considering the complainant’s appeal against the refusal of free transport to College for his daughter. The Ombudsman found fault in the Council’s actions. The Council has agreed the recommended actions to remedy the injustice caused by the Council’s faults. We are therefore closing the complaint.

The complaint

1. The complainant, who I refer to as Mr X, has two main complaints against the Council. The complaints are that the Council has:

• Complaint (a)-failed to make the special educational provision set out in his daughter’s (B’s) Education, Health and Care (EHC) Plan following the Special Educational Needs and Disability Tribunal’s ruling in March 2019; and
• Complaint (b)-unreasonably refused to pay for B’s home to College transport since September 2018, and unreasonably refused his transport appeals to the Council until January 2020 when the Council agreed that B was eligible for free school transport. This was on the basis that the Council accepted it would not be in B’s interest to move her from her preferred College placement.

2. As a result of these alleged faults, Mr X says that B has missed out on necessary provision and has missed out on free home to College transport since September 2018. Mr X has had to take and collect B to and from College and she and Mr X have been caused avoidable distress, frustration and time and trouble.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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. Normally the Ombudsman will not investigate complaints unless they were made to him within 12 months of when the complainant realised something had gone wrong. However, the Ombudsman has some discretion on this time limit.
5. The Special Educational Needs and Disability (SEND) Tribunal deals with disputes about assessments and provision for special educational needs.
6. The Court of Appeal confirmed in R v Commission for Local Administration, ex parte Field [1999] EWHC 754 (Admin) that the Ombudsmen cannot consider a complaint when the complainant has pursued an alternative remedy, for example by appeal to the SEND Tribunal.
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

9. I have made enquiries of the Council and sent its response to Mr X. He has provided further comments and he has sent a copy of a letter from his solicitor who was involved in his Tribunal appeals.
10. Mr X had a right of appeal to the Tribunal in November 2018 when he received B’s final Plan naming two Colleges for her. The Council clarified that there was a College nearer to Mr X’s home, which B could attend. However, if she wanted to attend a College some six miles away, B’s parents would need to meet the cost of transport.
11. Mr X appealed the Plan but only in relation to the required special educational needs and therapy provision. Mr X did not appeal the placement on advice of his solicitor, who explained it was best for him to pursue the Council’s transport appeal process if he was concerned about the refusal of free home to school transport.
12. The Council was willing to entertain Mr X’s transport appeal and, as far as I can see, it did not suggest that Mr X appealed on the placement issue at the same time as his appeal about provision.
13. Taking account of all these facts, I decided that it is reasonable to exercise the Ombudsman’s discretion to look at Mr X’s concerns about the Council’s refusal of free transport to B’s College as from September 2018.
14. I issued a draft decision statement to the Council and to Mr X and I have taken into account their further comments when reaching my final decision.

What I found

The Equality Act 2010

15. The Equality Act came into force on 1 October 2010. The Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.
16. Organisations carrying out public functions are subject to the duties not to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. Disability is one of those protected characteristics.
17. On 5 April 2011, the public sector equality duty (the equality duty) came into force. The equality duty was created under the Equality Act 2010. The duty requires all local authorities (and bodies acting on their behalf) to have due regard to the need to:

• Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
• Advance equality of opportunity between people who share a protected characteristic and those who do not.
• Foster good relations between people who share a protected characteristic and those who do not.

Education, Health and Care (EHC) Plans

18. When considered necessary, the Council will arrange education for a child or young person up to the age of 25 with special educational needs under an Education, Health and Care Plan (EHC Plan). This specifies the nature of the learning difficulty, provisions, outcomes and placement. The EHC Plan contains discrete sections on health and social care needs related to the child’s special education needs and health and social care provisions reasonably required by the child’s learning difficulties.
19. Under s42(2) of the Children and Families Act 2014 the council has an absolute legal duty to secure the special education provision specified in the EHC Plan.
20. There is statutory guidance about how councils should manage the EHC planning process, set out in the Code of Practice 2014.

Home to school transport

21. Councils must provide free home to school transport for eligible children of compulsory school age (up to age of 16). A council has the discretion to provide free transport for post 16 pupils.
22. Section 508F of the Education Act 1996 requires local authorities to make transport arrangements they consider ‘necessary’ (or that the Secretary of State directs) 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 for whom an EHC plan is maintained. (The Children and Families Act 2014, s.82)
23. When a council finds it is ‘necessary’ to provide transport for the young adult under s.508F then the transport must be free of charge (s.508F(4)).
24. If a local authority does not consider it ‘necessary’ to provide transport under 508F it may still choose to pay some or all of the reasonable travel costs under s.508F(8) or as social care provision under the Care Act.
25. Under s.508G of the Education Act 1996 local authorities are required to set out information about the travel provision they have in place for relevant young learners so they and their families can make informed choices between institutions. The SEN Code of Practice 2014 requires councils to have clear policies about transport in their Local Offer (this is information published on a council’s website about the special educational provision in its area).
26. The Government issued statutory guidance in January 2019 entitled ‘Post-16 transport and travel support to education and training’ which details a council’s duties to adult learners and pupils of sixth form age.
27. Councils have a duty to publish a transport policy statement setting out the transport arrangements they consider it necessary to facilitate attendance at education or training and the financial help available for:

• learners of sixth form age (16-18 or after 18 if they started the course before their 19th birthday); and
• learners with EHC Plans up to the age of 25 who started their programne of learning before their 19th birthday.

28. A council’s transport policy statement must set out the arrangements it proposes to make for young people with SEN and disabilities. The application of a transport policy in relation to a disabled young person engages the Equality Act 2010. Councils are required to have regard to the need to advance equality of opportunity to access education between persons with a disability and those without.
29. Councils may ask parents for a contribution to transport costs, but should exercise discretion in doing so, and have arrangements to support low income families.
30. The overall intention of the duty is to ensure learners can access education and training of their choice and, if support is requested, this will be assessed and provided where necessary.
31. The Upper Tribunal (Administrative Appeals Chamber) has considered transport for post-19 learners with an EHC plan (s.508F). The Tribunal commented that: ‘the local authority has a duty to make transport arrangements for [a post 19 learner] if they consider that to be ‘necessary’ having regard to all 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 arrangement and the transportation must be free of charge’. (Staffordshire County Council v JM 2016)

Government guidance on transport appeal process

32. The Government issued ‘Home to school travel and transport guidance’ in 2014 which recommends councils have a two stage appeal process for parents who wish to challenge a decision about their child’s eligibility for travel support: Stage one: review by a senior officer; Stage two: review by an independent appeal panel.
33. The guidance says the independent appeal panel should consider written and verbal representations from both the parent and officers involved in the case. Appeal panel members must be independent of the original decision-making process but do not have to be independent of the council.

The Council’s transport policy of 2016

34. The Council’s policy refers to taking account of the SEN Code of Practice, the February 2014 Post 16 Transport guidance, and the July 2014 Home to School Transport guidance.
35. In respect of 16-19 year old pupils with special needs, the Council’s policy says that it does not have an automatic duty to offer travel assistance for children and young people with special educational needs and disability or to children and young people with a statement of SEN or an EHC plan.
36. A parent may exercise choice to have a particular school named on a statement of SEN or an EHC plan, however if there was an alternative school that was determined to be appropriate to the pupil’s needs and where the pupil could have been registered, the Council may decide not to offer travel assistance.
37. The Council’s SEN Assessment and Review Service Panel makes the assessment of need and suitability for travel assistance based on the Council’s eligibility criteria. A parent has 20 working days from receipt of the Council’s home to school transport decision to make a written request for a review of the decision
38. The Council has a two stage appeal system. The first stage is a review by a Senior Officer; the second is a review by an independent appeal Panel.
39. There are timescales at each stage. A parent has 20 working days from receipt of the Council’s stage one written notification to make a written request to escalate the matter to stage two.
40. Within 40 working days of receipt of the parent’s request an independent appeal Panel considers written and verbal representations from both the parent and the officers involved in the case and gives a detailed written notification of the outcome (within 5 working days) setting out;

• the nature of the decision reached;
• how the review was conducted;
• information about other departments and/or agencies that were consulted as part of the process;
• what factors were considered;
• the rationale for the decision reached; and
• information about the parent’s right to put the matter to the Ombudsman.

The Ombudsman’s view

41. The Ombudsman expects councils to consider their Equality Act duties when considering the transport needs of children and young adults with SEN and disabilities. Children and young adults with SEN and disabilities and their parents should not be treated less favourably than children and young adults of the same age without SEN and disabilities.
42. The Ombudsman cannot find that a body in jurisdiction has breached the Equality Act. However, we can find a body at fault for failing to take account of their duties under the Equality Act.
43. Section 113 of the Act provides members of the public with recourse to the court for damages claims, if they believe they have suffered unlawful discrimination. This represents an alternative legal remedy under section 26(6)(c), Local Government Act 1974

What happened

EHC Plan

44. B’s EHC Plan was issued in 2018. She attended a high school and the Council provided free home to school transport.
45. B has moderate learning difficulties and other significant difficulties. She is not an independent traveller. B was due to leave the high school in July 2018, at the age of 18. She spent a day a week at her local College, College E. But she did not like College E and said that she was being bullied. Mr X also says that the course offered was not suitable.
46. B expressed an interest in attending two other Colleges, College C and D. Both were some distance from her home. The Council sent a consultation letter to the more local College, College E, enquiring whether it would accept B.
47. The Council says that all the three Colleges offered comparable courses, and in the Council’s view, College E was able to meet B’s needs and, moreover, College E stated that it could meet her needs and had an available place.
48. The Council says that College E offered a comparable level one course in Independent Living Skills.
49. B expressed a preference for College C initially, but subsequently changed her mind and requested College D. In line with parental preferences, in July 2018, the Council agreed to name College D and College E in B’s amended EHC Plan, stating it agreed to B attending College D, subject to the parents meeting the travel costs. The Council says that this was in line with its policy.
50. B started to attend College D with Mr X taking and collecting B each day.
51. In November 2018, Mr X appealed the EHC Plan concerning the provision of occupational and speech and language therapy. Mr X did not appeal the College placement although he could have done so. Mr X’s solicitors say that this is because Mr X was hoping that the Council’s transport appeal decision would be favourable.
52. The Tribunal hearing was in March 2019 and this led to a Consent Order concerning the provision of the above therapies and with an Order that the Council amend the Plan. This had to be done in five weeks from the date of the Consent Order.
53. After the Consent Order was made in March 2019, Mr X’s solicitor had to chase up the Council to ensure the amendments, as agreed, were made in B’s final Plan and to ensure the provision for both occupational and speech and language therapy was provided.
54. The Council has accepted that there was a delay in ensuring the therapies were provided. But it says that this was not for want of trying to ensure these therapies could be provided. The Council has set out the extensive efforts it made to secure the appropriate provision for B.
55. In June 2019, Mr X appealed again to the Tribunal, this time in relation to the named College placement. The Council says that it would have had to consult the local College, College E, to see if a placement there was still suitable, appropriate and available. However, in the interests of ensuring that B could continue her education without uncertainty and disruption, the Council agreed to name just College D in B’s amended final Plan.
56. B then became eligible for free transport from home to College D as she was placed at the only suitable nearest College available to her. The Council says it provides a daily taxi to and from College D.
57. In October 2019, the occupational therapy began. In November 2019, the speech and language therapy started. So, it has taken the Council to make the required provision, in line with the March 2019 Consent Order, seven and eight months respectively.
58. Mr X says that this has caused some regression in B’s learning and may have affected her results at school. He also says that the family were caused avoidable distress and frustration and Mr X’s solicitors had to chase the Council to ensure it acted on the Consent Order.

B’s College D placement

59. Mr X says that B is currently undertaking an Independent Living Skills for Life (level one) at College D, aimed to develop her living skills and prepare for living in the community, at home or independently. Sessions allow learners to develop practical skills such as preparing and cooking snacks/meal, carrying out household tasks, using coins and notes in the classroom to complete functional maths tasks and using money in a wider community to promote money handling skills. Pupils research what their community and how facilities and services may be accessed and, also, they explore aspects of citizenship and what community responsibilities are and how to make positive contributions.
60. Learners will also be engaging in a variety of practical and creative activities and focus on communicating  personal emotional wellbeing. Subjects covered include personal safety including safe use of the internet and phones. Most importantly, personal hygiene and healthy relationships and support is given so the young person can achieve their targets.
61. Mr X says that the course at College E was not comparable to the course at College D (independent Living Skills at level one), that there was less support for B there and the environment did not suit her. She had tried out College E, when at school, so she was making an informed decision and was able to express a clear preference about which College she wanted to attend.

Mr X’s transport appeals

62. Mr X first submitted a transport appeal in February 2018. At this stage, B’s first choice college was College C. The Council refused free transport as there was an available and suitable College, College E, closer to home, offering B a comparable course.
63. On 3 April 2018, Mr X requested an appeal and additional time to provide evidence. On 29 May 2018, the Council confirmed its decision not to allow free transport.
64. Mr X asked to go to the second stage of the appeal. He asked for an extension of time to provide evidence and he wanted to speak to a senior officer. On 18 July, Council officers met Mr and Mrs X. They explained that B now wanted to attend College D.
65. On 27 July 2018, the Council agreed to name College E and College D, subject to the parents meeting the travel costs to College D.
66. On 21 September 2018, Mr X submitted a transport application for travel assistance to College D. This was refused on the basis of the Council’s policy. Mr X appealed and, on 12 November 2018, the decision was upheld by a senior officer.
67. Mr X requested to go to the second stage of the appeal process, the Panel. There was some delay in arranging this, but Mr X had asked for extra time. On 5 February 2019, the appeal was refused. The decision letter stated that the Panel sympathetically considered Mr X’s written and verbal representations, which were (I paraphrase):

• B used to attend a link course at College E one day a week when she was at school but was unhappy at the College. She does not wish to attend College E as the teachers were not attentive, and the students bullied her. Mr X emailed College E about the matter but did not receive a reply;
• the comparable course offered at College E is at level 2 and is therefore not appropriate for B’s needs. Whereas the course at College D, which B is currently attending is at level 1, and is more suitable for her needs;
• Mr X could not recall if he had attended B’s EHC Plan transition review meeting last year;
• Mr X quoted the following from the Department for Education Guidance entitled: Post 16 Transport & Travel Support to Education and Training: ‘The overall intention of the sixth form age transport duty is to ensure that learners of sixth form age are able to access the education and training of their choice.’ Mr X made the case that B should therefore be permitted to attend the course of her choice;
• B has been attending College D since September 2018. Staff at the College are supportive, and B is happy and settled there. Mr X drives her to College every day before going to work;
• Mr X went to College E for an open day, but no staff were available on that day. Mr X had looked into College C, but would prefer not to send B there for private reasons;
• Mr X had done some research and had found a much more affordable local taxi firm offering lower rates (approximately £13.17) than the £66.00 per day quoted by the Council’s Transport Service. Mr X had found staff at the SEN transport service unhelpful;
• Mr X has not looked into the possibility of using B’s mobility allowance to cover the cost of her travel to College D;
• Mr X had not considered what he would do if the appeal were to be refused.

The Panel’s decision

68. The Panel concluded (I paraphrase) that there was a comparable course to the one B was attending at College D, on offer at College E, at level 1 and from the Council’s experience, College E’s campus was secure, and the College employed security guards. B had never had an escort to assist her on a one to one basis when travelling to school on the Council’s transport bus. There was, however, an escort present on every school transport bus to assist all pupils.
69. The Panel stated that the Council was obliged to adhere to its internal procurement and safeguarding protocols when commissioning school transport services. Only those taxi companies and their staff that had been vetted could be used as providers and consequently the number of available providers was limited. Any less expensive options would not have been explored by the SEN transport service, as in this case, the applicant had not met the eligibility criteria.
70. The Panel was satisfied that the published Travel Assistance policy for Children and Young People (0-25) living in Harrow had been correctly applied in Mr X’s case. And in making its decision, the Panel had regard for relevant legislation and guidance relating to SEN appeals and the Council’s Travel Assistance Policy.
71. The Panel also noted that B’s EHC Plan clearly stated that: “College D has been named in her [B’s] EHCP. As this college is not her local college it is the responsibility of the parents to arrange transport to and from college”. The Panel noted that Mr X confirmed that he had read through the EHC Plan and was aware of this proviso.
72. Accordingly, the Panel refused the appeal.
73. Mr X then appealed to the Tribunal in relation to B’s placement and subsequently the Council agreed the free transport to College D so as not to cause uncertainty and disruption for B.

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Analysis

74. The Ombudsman can only consider the Council’s actions after the making of the Consent Order in March 2019. The Council has accepted that there was a delay in providing the agreed therapies. It is also clear that the Council made extensive efforts to find appropriate therapists. But I find the Council at fault for this delay and that Mr X had to continuously chase up the Council to ensure it met the terms of the Consent Order.

Injustice on complaint (a)

75. It is difficult to specify the impact on B by this delay. But these therapies were considered necessary to help B with her special educational needs, so it is reasonable to conclude that she would have been adversely affected by not receiving the provision in a timely way and in accordance with the Consent Order.
76. However, the Council agreed to make up the loss of the therapies by providing extra sessions for B. So, I am satisfied that this remedies this loss.

Complaint (b)

77. Mr X appealed B’s EHC Plan in 2018. While I recognise that he thought he could resolve the issue of transport through the Council’s appeal process, rather than through the Tribunal, I am satisfied that he could have appealed B’s College placement at this time.
78. However, I have exercised the Ombudsman’s discretion, despite this appeal right, because Mr X was advised by his solicitor to pursue the Council’s transport appeal process instead, and the Council was willing to entertain this. Therefore, my view is that the Ombudsman is permitted to look at Mr X’s complaint about the lack of free transport between September 2018 to January 2020 when the Council agreed to this.
79. I am satisfied that the Council’s transport appeal system is appropriate because it has a two stage process and the Panel will consider the parent/carer’s written and verbal representation, as required. I am also satisfied that Mr X had sufficient opportunity to explain why he thought B should be eligible for free transport.
80. But I have the following concerns. The Council’s policy is dated 2016 and does not include reference to the guidance of 2019. The policy also makes no reference to the Equality Act that I can see but, if I am wrong, the Council can tell me. The Equality Act is a key piece of legislation designed to protect disabled people and ensure parity of service between them and their able-bodied peers. And a key aspect of the Equality Act is to ensure that a council does not discriminate against those with a protected characteristic, in this case disability.
81. B is not an independent traveller and I cannot see that this was in dispute. Therefore, she does not have the same options as an able-bodied young person who can easily use public transport, or other forms of travel, to attend a College of their choice, be it close or further away from home.
82. The law says a council must make arrangements for a post 16 learner if it considers that to be ‘necessary’ having regard to all the relevant circumstances. The Act and the statutory guidance list the factors to which councils must have regard when considering what arrangements are necessary, including special educational needs and disability. And, as Mr X pointed out, the guidance does say that adult learners should be able to attend education or training of their choice.
83. We expect to see evidence that a council has considered all these factors and can give reasons for its decisions. If the council decides transport is not necessary, we expect it to be able to demonstrate, in line with statutory guidance, that there is a safe, affordable way for the learner to attend sixth form/college and have choice in what they study.
84. 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 and each case will turn on its own facts.
85. We expect councils to consider their Equality Act duties when considering the transport needs of children and young adults with special educational needs and disability. They should not be treated less favourably than children and young adults of the same age.
86. So, I consider that there is fault because the Council’s transport policy appears silent on its Equality Act duties. But that is not to say officers and the Panel are not aware of these duties.
87. However, I am also not satisfied that the Panel gave sufficient thought to the Council’s Equality Act duties, in particular the impact on B by her disability and whether her disability might mean that free transport was ‘necessary’ to ensure that she could have the same opportunities as her able-bodied peers; namely to attend a College of her preference.
88. Accordingly, I consider that the Council has acted with fault because its transport policy does not make reference to its Equality Act duties and I also consider the Panel’s decision did not give sufficient thought to B’s disability and whether it was necessary to provide transport to enable her to have the same options as her able-bodied peers and to attend the College of her choice.

Injustice on complaint (b)

89. Mr X has had to take B to and from College as from September 2018. But for the faults identified, I consider that the Council would and should have provided free transport from September 2018.

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Agreed actions

90. Regarding complaint (a), the Ombudsman normally recommends between £200 to £600 for each month of lost education. B was receiving education. What was missing were the therapies to help her make best use of that education.
91. I consider that there were three/four months of lost therapy (excluding the holiday periods). However, the Council has remedied this by making up the lost sessions. But Mr X and his solicitors had to go to some trouble in chasing up the provision of the therapies and this caused avoidable delay and distress. Therefore, the Council has agreed, within one month of the final statement, to:

• apologise and pay Mr X £500 for his avoidable distress and time and trouble in chasing up actions after the Consent Order.

92. On complaint (b), the Council has agreed that it will, within one month of the date of the final statement:

• apologise and reimburse Mr X his mileage costs, which he incurred between September 2018 to January 2020, at the rate which the Council normally uses.

93. Within three months of the date of the final statement, the Council has agreed to:

• review and amend its transport policy to ensure that it refers to its Equality Act duties and that officers and Panels are aware of the need to consider these when assessing eligibility for post 19 year old learners.

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Final decision

94. I have found fault causing an injustice and have recommended actions to remedy this. Therefore, I have completed our investigation and am closing the complaint.

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Investigator's decision on behalf of the Ombudsman