Summary: Miss X complained the Council failed to properly assess her application for transport to college. The Council was at fault when it failed to properly assess whether it was necessary to provide transport for Miss Y to attend college. The fault was acknowledged by the Council’s Education Transport Appeal Panel who assessed Miss Y’s application properly by recognising its duty to make necessary arrangements. The faults caused Miss Y and her family frustration and inconvenience. The Council has agreed to the Ombudsman’s recommendations to remedy the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Miss Y, complains via her representative, that the Council failed to properly consider her application for transport to college, specifically by not considering her special educational needs (SEN) and her Education, Health and Care (EHC) Plan.

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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 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(i), as amended)

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How I considered this complaint

4. I considered Miss Y’s complaint and the information submitted on her behalf by her representative.
5. I considered the information I received from the Council.
6. Miss Y and the Council have the opportunity to comment on a draft of this decision. I considered the comments I received before making this final decision.
7. 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

Law and Guidance

8. 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 years old for whom an EHC plan is maintained. An EHC plan is for children and young people between 0 and 25 years old in education, who have additional needs. The plan coordinates a child or young person’s health and social care needs and sets out any additional support they might need. (The Children and Families Act 2014, section 82)
9. Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs. 
10. When a council finds it is ‘necessary’ to provide transport for the young adult under section 508F, then the transport must be provided and be free of charge (Education Act 1996, section 508F(4)).
11. 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.
12. 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))
13. Parents and carers are responsible for ensuring children of compulsory school age attend school (S.7 Education Act 1996). There is no similar duty for dependent adult children with an EHC plan. Parental responsibility ends when a young person reaches age 18.

What happened

14. At the relevant time, Miss Y was 20 years old and had an EHC plan. In September 2021, Miss Y started a course at the placement named in her EHC plan. Her EHC plan stated she was unable to travel independently and that she required travel training.
15. Miss Y’s mother, Ms P, submitted an application on Miss Y’s behalf, for support with travel in November 2021. The Council received the application on 25 November 2021.
16. On 14 December 2021, the Council issued its decision to refuse transport for Miss Y. The Council’s decision stated its reason for refusal was based on the distance between Miss Y’s home and college, specifically that it was not more than three miles.
17. On 20 December 2021, Miss Y (via a representative) appealed the decision and also submitted a complaint that the Council had failed to consider the relevant law and statutory guidance with respect to Miss Y’s SEN transport arrangements.
18. The Council responded to the complaint on 12 January 2022. It did not uphold her complaints and said it had followed legislation and guidance.
19. Miss Y’s representative responded to this letter on 23 January 2022 and advised the Council they would like to continue with their appeal and requested an update regarding the hearing date. Miss Y also requested her complaint be escalated to stage 2 of the Council’s complaint process.
20. On 1 February 2022, the Council apologised that it did not receive Miss Y’s appeal. Miss Y’s representative resubmitted an appeal again on 13 February 2022.
21. The Council responded to Miss Y’s complaint on 20 March 2022. It did not uphold her complaints about the Council’s decision making.
22. The School Transport Appeal Panel (the Panel) considered Miss Y’s appeal on 28 March 2022. It considered representations from Miss Y, the Council and it looked at the Council’s original decision. The Panel decided not to make an exception to the Council’s School Transport Policy and it upheld the original decision to refuse Ms X’s application for free transport to college.
23. The Panel acknowledged that the distance rule was not relevant to the appeal but that the Council had a duty to make necessary arrangements. The Panel decided the necessary arrangements made by the Council should include travel training for Miss Y and that when accompaniment by family is not available, a suitable chaperone will be provided. The decision was sent to Miss Y on 1 April 2022.
24. Miss Y’s college course ended in May 2022.

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Analysis

25. The law sets out a statutory duty for councils to provide free transport to relevant young adults aged 19 or over where they decide it is necessary to do so to facilitate their attendance. The Council refused Miss Y’s initial application for transport to college on the basis that it was less than 3 miles from her home. It failed to consider the requirements of section 508F of the Education Act, that Miss Y had an EHC plan and was a relevant young adult.
26. The Council’s initial decision shows the Council failed to decide whether it was ‘necessary’ for Miss Y to receive travel support to facilitate her attendance at college. This is fault. The Council’s decision dated 14 December 2021 simply stated the application was refused on the grounds that the distance between Miss Y’s home and college is less than three miles. There was no reference to any other considerations.
27. As the 2016 case law stated above explained, “This is not a pure discretion. Although the question of what is necessary is a matter for [the council], in deciding that question they must exercise their judgment judiciously and in good faith”. In this case, there is no evidence to show that consideration. This does not mean we consider transport for Miss Y is necessary, as that is not our role. It is for the Council to decide. However, we have no evidence the Council properly considered necessity or recorded its views.
28. The Council then said in its complaint response at stage 1 (dated 12 January 2022) that it did not consider it necessary to provide transport for Miss Y as she is able to walk between home and college accompanied by a parent or other reliable adult. However, Ms P is unable to accompany her daughter and more importantly, she has no obligation to do so because Miss Y is an adult.
29. The EHC plan shows Miss Y was not capable of independent travel and therefore her SEN should have been a factor in the Council’s decision making. There is no reference to this in the Council’s initial decision. There is also no reference to the Council’s consideration of Miss Y’s need to attend college and the impact on her family of transporting and/or accompanying her when Ms P had made the Council aware of the impact transporting Miss Y was having on her employment.
30. Miss Y appealed the Council’s decision on 20 December 2021 but it was not heard by the Panel until 28 March 2022. The Panel’s decision was sent to Ms Y on 1 April 2022 and Miss Y’s college course ended in May 2022. This delay is fault and it meant that Miss Y was without the assistance that was necessary for nearly the whole academic year.
31. The Council says it did not receive Miss Y’s appeal but her correspondence dated 20 December 2021 clearly states she wishes to appeal the decision. This does not appear to have been passed on to the relevant officer. This is fault and it contributed to the delay.
32. At the appeal, the Council acknowledged that the distance rule was irrelevant, and it recognised its duty to make necessary arrangements. It decided to provide travel training and when accompaniment was not available, a suitable chaperone would be provided. Despite the Panel’s acknowledgement the initial decision was incorrect, there is no evidence the Council has apologised or recognised any of the injustice to the family. In its complaint correspondence, the Council repeatedly advised the family the initial decision was made correctly. It is inevitable this caused frustration to the family.
33. The faults identified above have caused the family frustration and inconvenience. These could have been avoided if not for the faults. Despite these faults, Miss Y’s attendance at her college course was over 90% which demonstrates the determination of Miss Y and her family, in particular her mother, Ms P and Miss Y’s elderly grandparents who also helped with accompanying her when they could.

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Agreed action

34. Councils should consider all relevant factors in good faith when deciding if transport is necessary and they should give clear reasons for their decision. If a 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 college. Therefore, I recommend, that within three months of my final decision, the Council reviews its transport and travel support policy for post-19 learners with educational needs and disabilities and ensures it accurately reflects the relevant statutory guidance.
35. To remedy the injustice to the family, the Council has agreed, that within four weeks of this final decision, it will:
• Apologise to Ms P and Miss Y for the distress, inconvenience and frustration caused by the faults identified above; and
• Pay Ms P and Miss Y £300 each as a token acknowledgement of this injustice.
36. The organisation should provide us with evidence it has complied with the above actions.
37. Although there are faults with the Council’s initial decision, I did not recommend for the decision to be reconsidered because there is no worthwhile outcome that can be achieved because the appeal decision was made without fault and Miss Y’s course ended in May 2022.

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Final decision

38. There is fault by the Council and it has agreed to our recommendations to remedy the injustice to Miss Y and her mother, Ms P. Therefore, I have completed my investigation and closed this complaint.

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Investigator's decision on behalf of the Ombudsman