Summary: Ms X complained the Council carried out an annual review of her son, Mr Z’s, Education, Health and Care (EHC) Plan and wrongly stopped his transport provision to college. The Council was at fault when it failed to take account of its duties in relation to post-19 educational travel. As a result, it failed to properly assess whether it was necessary to provide transport for Mr Z to attend college. It has agreed to apologise to Ms X and Mr Z, reassess Mr Z’s needs and pay them £300 each to acknowledge the impact these faults caused them. The Council has also agreed to make service improvements.

The complaint

1. Ms X complains the Council:
1. failed to property consider transition planning for her son, Mr Z, from 2017 when he was 17 years old;
2. carried out a review of his Education, Health and Care (EHC) Plan without her involvement and amended it without consultation with her; and
3. removed the provision of transport to his educational placement without prior warning or providing an explanation of the reasons why and then failed to properly advise her.
2. Ms X says that as a result, Mr Z has missed out on support and has been left feeling isolated. She says it has caused a strain on the whole family and has financially affected them.

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What I have investigated

3. I have investigated the complaints in paragraph 1b) and 1c).
4. The complaint in paragraph 1a) is late because the events took place nearly four years ago and I have seen no good reason why Ms X could not have complained at the time if she was unhappy with the transition planning for Mr Z. However, I have considered what happened in the 2017 review in relation to transport provision because it has a bearing what happened later. In addition, as I explain in paragraphs 23 and 41, Ms X was not adequately informed at the time of the Council’s actions when it removed transport provision, which meant it was likely she was unaware of the need to complain at that time.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
8. 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)

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How I considered this complaint

9. I spoke to Ms X and considered her view of her complaint.
10. I made enquiries of the Council and considered the information it provided.
11. I considered the relevant law and guidance including the Education Act 1996 and the statutory guidance ‘Post-16 transport to education and training’.
12. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law and statutory guidance

EHC Plan process

13. Young people with complex special educational needs and disabilities might need an Education, Health and Care (EHC) Plan. This sets out the young person’s needs and what arrangements should be made to meet them. A young person can have an EHC Plan up to the year they turn 25.
14. Section F specifies provision needed to meet the young person’s educational needs. Section H specifies what social care the young person needs. A council must ensure the provision in sections F and H is put in place.
15. EHC Plans must be reviewed at least every 12 months. A council must decide within four weeks of the review meeting whether it proposes to keep the plan as it is, amend it, or cease to maintain it.
16. Where a council decides to amend an EHC Plan it must send the child’s parent a copy of the existing plan and a notice showing details of the proposed changes, including any evidence used to support the proposed changes.

Transport arrangements for adult learners with EHC Plans

17. Councils must make such arrangements for the provision of transport and otherwise as they consider necessary to facilitate the attendance of, including others, learners up to age 25 with an EHC Plan who started the programme of learning after their 19th birthday, if they receive any education or training arranged for them. (Education Act 1996, section 508F)
18. In considering whether it is necessary to make arrangements, a council must have regard (among other things) to the age of the adult and the nature of the route, or alternative routes, which the adult could reasonably be expected to take.
19. The courts have said “This [decision about what is necessary] is not a pure discretion. Although the question of what is necessary is a matter for [councils], 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 arrangements and the transportation must be free of charge.” (Staffordshire County Council v JM (2016 WL 03208801))

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What I found

What happened

20. Mr Z has had an EHC Plan for several years. Section F used to specify Mr Z would receive home to school transport.
21. In 2016, when Mr Z was due to transfer to college that September, his annual review of his EHC Plan was held. Ms X submitted views which said Mr Z would like to use public transport from home to college to promote his independence. Ms X also stated that she believed Mr Z would struggle if any future bus did not go directly to the college as he could become very anxious.
22. In March 2017, the Council issued Ms X with a notice of amendment and a copy of Mr Z’s amended EHC Plan. This removed Mr Z’s transport provision. However, the changes were not highlighted nor referenced in the covering letter. Ms X did not challenge them and the Plan was subsequently finalised in March 2017.
23. In response to my enquiries, the Council stated its decision to remove transport provision from Mr Z’s EHC Plan was unrelated to Mr Z’s needs but to do with internal processes. It considered Ms X was involved and informed of the removal of the transport provision because she attended the annual review. Although it then went on to say:
• the decision letter did not refer to the removal of the transport provision;
• the draft amended Plan which accompanied the letter did not highlight where changes had been made which meant parents had to compare the draft revised Plan with the previous one; and
• it was unlikely the school would have mentioned transport at the annual review because it would have been unaware of the change in Council procedures.
24. In September 2018, Mr Z moved from school to College A. College A was named in Mr Z’s EHC Plan. Mr Z continued to receive home to school transport.
25. In 2019, Mr Z turned 19 years old.
26. In July 2020, the college held Mr Z’s annual review. Because of COVID-19, no face-to-face meeting took place. Ms X was asked to submit her views in writing but she did not do so. In its response to my enquiries, the Council said that when it found out Ms X and Mr Z’s views had not fed into the review process, it advised them and the college that the review could be resubmitted with additional information.
27. It also said it had taken actions to help prevent a reoccurrence. These included sending a senior Council officer to Mr Z’s annual reviews and work with College A to improve review processes.
28. In September 2020, Mr Z began a new course at College A and the Council stopped his transport. In its response to my enquiries, the Council said this was because Mr Z had transferred to Adult Social Care (ASC) and the usual process was for the ASC social worker to consider what transport needs the service user required during their initial assessment.
29. In February 2021, Ms X contacted the SEND Team and advised Mr Z’s social worker had told her transport could only be provided if it was specified in Mr Z’s EHC Plan.
30. The SEND Team queried this advice with the social worker. The social worker responded and stated there appeared to have been a misunderstanding and apologised for this.
31. No further progress was made on this matter by either the SEND Team or the ASC social worker until April, when the SEND Team chased for a response from the social worker.
32. The social worker responded later that month and said they carried out Mr Z’s assessment in March. When the SEND Team queried if this support included transport, the social worker stated:

“No … The only required transport is college and he is unable to use public transport so education need to look into this, my belief is that this was in his EHCP, then a review was completed without the involvement of parents and the transport was removed. Adult services would not provide transport to a service they have not commissioned”.

33. The SEND Team responded the same day and said that the social worker’s understanding was wrong. The Team went on to say “learners over 19 starting a new course are ineligible for education transport… this responsibility sits with social care subject to qualifying for social care support”.
34. Shortly afterwards, the social worker submitted information for section H of Mr Z’s EHC Plan. The SEND Team responded and asked for significant amendments because the submission failed to specify any social care needs relating to Mr Z’s special educational needs, his outcomes and what social care provision Mr Z needed to meet them. The SEND Team specifically asked the social worker to consider how Mr Z’s social care needs impacted on his ability to access education and its effect on his family.
35. Around one month later, the SEND Team emailed Ms X and said they were still awaiting the completed social care information and asked if Ms X wanted the Council to issue the notice of amendment for Mr Z’s EHC Plan without input from social care. Ms X decided it would be more sensible to wait until all the information had been completed.
36. In May 2021, the SEND Team emailed the Independent Travel Trainer for information on how to make a referral to their service. The Trainer responded and said they had limited availability but would consider Mr Z’s case.
37. Also in May, Ms X complained to the Council about a number of issues, including its failure to adequately inform her about changes to the post-19 transport provision and poor communication. The Council responded and upheld Ms X’s complaint. It apologised for the inconvenience and anxiety this caused her.
38. In June 2021, the SEND Team chased the social worker for the outstanding social care information for Mr Z’s EHC Plan. This was provided by a different social worker and was included in Mr Z’s draft EHC Plan. This specified Mr Z was at risk of becoming socially isolated as he would not go out without support. This was partly due to a bad experience Mr Z had experienced when he tried to take the bus to college on his own. The information said Mr Z was vulnerable to exploitation if he went out alone into the community.
39. The social care support specified in section H of Mr Z’s EHC Plan included independent travel training if required or a further assessment to determine if Mr Z needed support to travel to college.
40. In October 2021, the Council issued a notice of amendment. This took account of the updated social care advice and included an option for a further assessment of Mr Z’s needs relating to travel to college ‘if required’.

My findings

Removal of transport provision in Mr Z’s annual review 2017

41. In March 2017, at Mr Z’s annual review, the Council removed Mr Z’s transport provision from his EHC Plan, not because his needs had changed, but because of procedural issues. Although it sent Ms X a copy of the revised Plan and a notice of amendment, this change was not discussed with her, raised at the annual review meeting or highlighted in the revised Plan. Furthermore, Mr Z’s transport provision did not end at this time. Therefore, on balance, it is likely Ms X was unaware of the removal of this provision. The Council’s failure to properly bring this to Ms X’s attention is fault.
42. Mr Z did not experience an injustice because he continued to receive transport provision. However, if Ms X had been made properly aware, she would have had an opportunity to appeal the loss of this provision with the SEND Tribunal. Ms X has, therefore, been caused an injustice, because this opportunity was lost.

Annual review July 2020

43. The Council has already stated there was fault in how Mr Z’s 2020 annual review was carried out. It has taken suitable steps to help prevent a reoccurrence in future. A second review was held in November 2020 to which Ms X and Mr Z were able to submit comments. Therefore, Ms X and Mr Z did not experience an injustice.

Post-19 transport provision

44. Mr Z has an EHC Plan and started a new educational course after the age of 19. The law says that in these cases, councils must make such arrangements for the provision of transport and otherwise as they consider necessary to facilitate the attendance of learners.
45. We expect to see evidence councils have considered all relevant factors in good faith when deciding if transport is necessary and can give reasons for their decisions. If a council decides transport is not necessary, we expect it to be able to demonstrate, in line with the statutory guidance, that there is a safe, affordable way for the learner to attend college.
46. Prior to Mr Z’s transport provision stopping in July 2020, the Council should have assessed Mr Z to decide whether transport was necessary to facilitate his attendance at college. Its failure to do so was fault. As a result, when the college year began in September, Mr Z was without transport and Ms X had to take him. This caused Ms X inconvenience and failed to address Mr Z’s wish to be more independent.
47. The emails from Adult Social Care indicate a lack of awareness of the Council’s duties to post-19 learners with special educational needs or disabilities. As a result, the Council failed to assess Mr Z to determine if it was necessary to provide him with transport to college. This caused delays. These delays were exacerbated by the amount of time taken by the SEND Team and Adult Social Care to respond to each other and by the failure on either side to escalate the matter to try to resolve it. This caused further drift and is fault.
48. During this period, no consideration was given to Mr Z’s need to attend college and the impact on his family. Ms X says that the effect on them was considerable, not least because she had to change jobs to enable her to transport Mr Z to and from college.
49. The Council’s failure to carry out any assessment to determine if the provision of transport to college was necessary, means that we cannot know for certain what would have happened if it had acted without fault. However, on balance, it is likely that if Mr Z had been properly assessed prior to his travel provision stopping, he would have been offered independent travel training at that point, instead of having to wait over 12 months for this to be offered. We cannot know if this would have resulted in other support, but that means Ms X is left with the view that Mr Z missed out on support he needed and his independence and confidence have been impacted.
50. The Council has now assessed Mr Z and offered him independent travel training. Mr Z has declined this because he no longer feels able to do this. In light of Mr Z’s views, the Council should reassess Mr Z, as stated in his latest EHC Plan, to determine if it is necessary to provide him with support to facilitate his attendance at college. It should inform Ms X of the outcome of that assessment in writing together with the reasons for its decision.

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Agreed actions

51. Within one month of the date of the final decision, the Council has agreed to:
• apologise to Ms X and Mr Z for the distress, inconvenience and frustration caused by the Council’s failure to assess whether Mr Z needed transport provision;
• pay them £300 each as a token acknowledgement of this injustice; and
• offer Ms X and Mr Z a reassessment of Mr Z’s travel provision needs. If Ms X and Mr Z accept this, the Council should reassess Mr Z within one month of that acceptance and provide its response in writing together with the reasons for its decision.
52. Within three months of the date of the final decision, the Council has agreed to provide training to the relevant officers on the Council’s duties towards post-19 learners with special educational needs or disabilities. This should ensure that:
• when relevant young adults start a new educational course post-19, any decisions about whether transport support is necessary to access that education are made, where possible, before the start of the course;
• there are clear procedures detailing the roles and responsibilities of the Special Educational Needs and Disability Team and Adult Social Care in relation to post-19 learners; and
• both departments understand how and when to escalate cases which involve disputes about areas of responsibility.

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Final decision

53. There was fault leading to injustice. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman