Summary: Mrs B complained that the Council failed to give adequate notice of changes to its post-16 transport policy so she had to pay for her son’s transport to college during the 2019/20 academic year. She also complains that, in the following academic year, the Council failed to arrange transport for her son until January 2021. The Ombudsman found the Council properly notified parents of changes to its transport policy. However, it was at fault in failing to provide transport between September and December 2020 and in failing to keep Mrs B informed. The Council has agreed to make a payment to Mrs B’s son in recognition of his lost education provision and social contact.

The complaint

1. Ms B complains that:
• between September 2019 and July 2020 she was required to pay towards her son’s transport to college. She had previously not been required to contribute and the Council failed to give her adequate notice of the fact that she would have to do so with the result that she did not have an opportunity to find a college closer to home;
• between September and December 2020 the Council failed to provide transport for her son, who is severely autistic. As a result, he was only able to attend college once per week and missed out on education and important time with his peers causing social isolation, increased anxiety and loss of confidence and self-esteem; and
• the Council failed to keep her informed or respond to her correspondence querying the lack of transport with the result that she had to contact her MP for assistance.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided.
5. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
6. 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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What I found

Legal and administrative background

Education, Health and Care Plans

7. A child with special educational needs and disabilities (SEND) may have an Education, Health and Care Plan (EHCP). This sets out the child’s needs and what arrangements should be made to meet them. The EHCP is set out in sections. Section I names the education placement.

Law and guidance on help with transport for post-16 pupils with SEND

8. Section 509AA of the Education Act 1996 says councils must publish a statement specifying the arrangements for the provision of transport, or otherwise, they consider it necessary to make for facilitating the attendance of pupils of sixth form age receiving education or training at specific institutions.
9. The statement must specify the arrangements the council considers it necessary to make for the provision of financial assistance in respect of travelling expenses and any travel concessions on offer.
10. Section 509 AB says councils must set out the arrangements they propose to make for young people with SEND.

The Council’s post-16 transport statement

11. The Council’s ‘Post-16 transport policy statement 2017/2018’ set out the assistance with transport costs available to students aged 16-18 and continuing learners aged 19 and over.
12. At the time the Council ran a 16-plus free travel scheme which provided free transport during the 2017/18 academic year for students who met certain eligibility criteria including that they:
• had an EHCP; and
• lived in the Council’s area; and
• were 16, 17 or 18 years of age before 1 September (and pupils who had begun their current course before their 19th birthday where transport assistance would be provided until they completed their course); and
• lived more than three miles from their chosen school or college; and
• the undertaking a full-time further education course; and
• would be attending their nearest school or college that provides the course required.
13. In 2019 the Council changed its policy following a review, and restricted entitlement to free transport to young people from low income households. The changes in the qualifying conditions applied to applications for the academic year 2019-20.
14. The ‘Post-16 transport policy statement 2019/2020’ set out the help with transport costs available to sixth form aged students (including those with an EHCP up to age 25 if they started the course before their 19th birthday). It said students may be able to get help with travel if they:
• lived in the Council’s area;
• were under 19 years of age or started a course before their 19th birthday and have an EHCP naming that provision;
• the course was full-time;
• were unable to access a viable public transport system due to their SEND;
• lived more than three miles from the school/college, or were unable to walk the distance to the school/college because of SEND;
• were attending the nearest establishment that provides the full-time programme of learning or work placement they wished to follow. In the case of a student with an EHCP, the establishment must be named in the plan.
15. The statement said that, if the student met all the criteria and began their current course before their 19th birthday, the Council would provide travel assistance until they complete the current course.
16. Where a student has SEND, the Council would arrange transport appropriate to their needs.
17. The statement says the student can apply to the Council for help with transport costs for post-16 education. Charges were based on the distance travelled and started at £706 per year where the distance from home to school was less than four miles. The statement set out the charges for the 2019/20 academic year.

Key facts

18. Mrs B’s son, Mr C, has been attending college since September 2017. He has special educational needs (SEN) and has an EHCP naming the college. He received free transport to college for the academic years 2017-18 and 2018-19.
19. On 4 March 2019 the Council’s Cabinet decided to end free transport for post-16 students with SEND and adopt a revised home to school transport policy and post-16 transport policy statement whereby parents would contribute towards the cost of transport based on the distance from the student’s home to school.
20. The same day the Council wrote to parents to inform them of the new policy and the introduction of charges for post-16 SEND transport. Information about the changes and the new policy was also published on the Council’s website.
21. Eligibility for post-16 transport is reviewed and determined on an annual basis. So parents/carers must apply each year.
22. On 29 April 2019 the Council wrote to Mrs B saying, “You may have received a letter we sent via schools on 4 March 2019 about these changes and this letter provides you with further details”. Mrs B says she did not receive this letter.
23. In July 2019 Mrs B applied for transport for the academic year beginning September 2019. The Council wrote to Mrs B confirming Mr C was eligible for transport assistance. It said transport would be arranged for September 2019 and it would contribute towards the cost of this. It explained how much Mrs B would need to contribute and set out the charging structure which is based on the distance from the student’s home to the school/college.
24. In November 2019 the Council sent a letter to Mrs B confirming payment options. In January 2020 it sent a reminder as it had received no payment from Mrs B.
25. In February 2020 the Council sent a final reminder letter. Mrs B applied to the Post-16 Transport Exceptions Panel but her application was declined because she had not shown financial hardship.
26. Mrs B applied for transport for Mr C for September 2020. Meantime, the Council had completed a review following which it had suspended transport charges for the academic year 2020/2021 for all students receiving post-16 SEND home to school transport. So, Mrs B was not required to contribute towards the cost of Mr C’s transport for the academic year 2020/2021.
27. On 8 September 2020, Mrs B contacted the SEND Team saying no taxi had been arranged for the start of term and asking whether one would be provided the following day. A few days later she sent another email saying Mr C had been without a taxi all week and asking whether it had been arranged for the following week.
28. The SEND Team contacted the Client Transport Team (CTT) asking why transport was not in place. The CTT explained the delay was caused by a backlog in transport arrangements being actioned and that transport would be arranged as soon as possible. It asked the SEND Team to provide mileage claim forms to Mrs B to recompense her for having to provide transport in the meantime.
29. On 18 October 2020 Mrs B contacted the SEND Team again saying Mr C was still waiting for transport and it was now half term. She said he was becoming very anxious about the college work he was missing. Mr C was supposed to attend college four days per week but Mrs B could only take him once a week at the most because of work commitments.
30. On 26 October 2020 the SEND Team contacted the CTT asking why transport had not been arranged. The CTT explained that, as Mr C was attending a different site for one of the sessions this academic year, approval was needed from the SEND Team for the new site.
31. On 28 October 2020 Mrs B complained to the Council about the delay.
32. On 2 November 2020 the SEND Team confirmed transport had been agreed by the senior manager and the CTT had been asked to arrange transport.
33. On 25 November 2020 Mrs B chased up progress saying she had heard nothing further. She also contacted her MP for help.
34. The Council arranged transport to start at the beginning of the spring term in January 2020.
35. On 22 December 2020 the Council responded to Mrs B’s complaint at stage 1 of its complaints procedure. It apologised for the delay in responding and acknowledged that there had been delays in securing transport for Mr C. It confirmed transport had now been arranged. Mrs B asked for her complaint to be escalated to stage 2. The Council issued a stage 2 response on 29 March 2021. It explained that Mrs B’s contribution towards the cost of transport had been reduced from £1179 to £541.34 because of a delay in arranging transport at the beginning of the year and because of the disruption caused by COVID-19 restrictions from 23 March 2020.
36. On 25 February 2021 the Council sent Mrs B mileage claim forms and apologised for the delay in doing so.

Analysis

Requirement to contribute towards transport costs

37. Mrs B says she was not aware of the change in the Council’s transport policy until July 2019 and that, if she had known sooner, she would have looked for another college closer to home so she would not have had to pay as much towards the cost of transport.
38. The Council also completed a public consultation on the proposed changes between 31 October 2018 and 14 January 2019 and put information on its website. Mrs B says she was unaware of this.
39. Mrs B says she did not receive the Council’s letters dated 4 March and 29 April 2019. I cannot ascertain the reason why Mrs B did not receive these letters but the Council has provided copies of them and there is nothing to suggest they were not sent. The Council’s letter dated 29 April 2019 refers to the letter of 4 March 2019 and says, “this letter provides you with further details”. This supports the fact that the letter of 4 March 2019 was sent.
40. I am satisfied the Council took action to notify parents in time for them to make alternative arrangements. So, I find no grounds to criticise the Council which was entitled to change its school transport policy and charge a contribution towards transport costs. After Mrs B raised concerns, the Council gave her the opportunity to apply to the post-16 Transport Exceptions Panel to evidence financial hardship but her application was unsuccessful. She was also offered a payment instalment plan to spread the cost of the payment.

Failure to provide transport between September and December 2020

41. The Council has explained that post-16 transport is a yearly scheme that parents/carers must apply for on an annual basis. So, there is no continuation of transport to the following academic year and eligibility is reviewed and determined annually.
42. Mr C’s transport requirements had changed for the 2020-21 academic year as transport was being required to a different site. Eligibility for this was not confirmed until the end of October 2020 and a tender was not issued for the revised transport arrangements until November 2020 so transport was not put in place until January 2021.
43. Mrs B applied for transport on time. So the Council was at fault in failing to arrange this until January 2021. In its responses to Mrs B’s complaint, the Council accepted there had been delays in securing transport to enable C to attend college and this should have been in place from September 2020. It said the delay was caused by “miscommunication internally”.
44. The Council has now reimbursed Mrs B’s mileage costs for transporting her son to college between September and December 2020. However, she was only able to take him once a week at most. So, because of the Council’s failure to provide transport, Mr C was unable to gain the full benefit of his placement for a term. This caused him a significant injustice. He not only missed out on education provision but also social contact with his peers. Mr C has severe autism and Mrs B says this caused him to become isolated and withdrawn.

Failure to keep Mrs B informed

45. Mrs B says the Council failed to keep her informed about why transport was not being provided and when it would start. She ultimately had to contact her MP for assistance.
46. In its complaint responses, the Council accepted there should have been “far greater communication” to keep Mrs B informed about progress. It also accepted there was a delay in sending Mrs B mileage forms. I find there was also a delay in responding to Mrs B’s complaint.
47. The Council apologised to Mrs B for the lack of communication and the fact that she had to escalate the matter to receive a response and the mileage forms. It explained it had reviewed its processes and made improvements in relation to communication standards. It also offered to pay Mrs B £250 in recognition of the failings in communication and the avoidable distress caused by this.
48. I consider this to be an adequate remedy for the distress and inconvenience Mrs B was put to because of the Council’s failure to keep her informed about transport arrangements, its failure to respond to her complaint in a timely fashion and the delay in sending her the mileage forms.

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Agreed action

49. In addition to the £250 referred to above, the Council has agreed that, within one month of this decision, it will pay Mr C £800 in recognition of lost education provision and social contact because of delay in arranging transport from September 2020.

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Final decision

50. I find the Council was at fault in failing to arrange transport for Mr C between September and December 2020.
51. I also find the Council failed to keep Mrs B informed about transport arrangements. It also delayed in responding to her complaint and in sending her mileage forms.
52. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

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Investigator's decision on behalf of the Ombudsman