Summary: Mrs C complained that the Council would not pay the full cost of her taking her adult son to college, despite agreeing that transport was necessary. The Council was at fault in not paying Mrs C’s full transport costs or properly considering her appeal. It has agreed the Ombudsman’s recommendations that it reimburse Mrs C’s additional costs plus interest and make a payment for inconvenience and distress. It has also agreed to review its school transport policy and consider whether other parents have been similarly affected.

The complaint

1. Mrs C complains that:
• despite agreeing that her son was eligible for free transport to college and that transport was necessary, the Council refused to pay the full cost of that transport when she transported him to college herself to minimise the risk of infection for her husband who was immuno-compromised;
• instead of paying her the actual mileage cost of four journeys of around 15.2 miles, the Council would only pay her for two journeys of nine miles “as the crow flies”;
• this caused her family hardship and distress at a time when her husband could not work due to his illness.
2. She considers that the Council should reimburse the money owing to her for transporting her son to college during the 2020/21 academic year, apologise and compensate for the stress caused.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
5. 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

6. I have considered Mrs C’s written complaint and supporting correspondence and discussed her complaint with her. I have made enquiries of the Council and considered its response. I have had regard to relevant legislation and guidance. I have also sent Mrs C and the Council a draft decision and invited their comments.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I found

Legal and administrative background

Special Educational Needs

8. A child or young person with special educational needs (SEN) may have an Education, Health and Care Plan (EHCP). This sets out the child’s or young person’s needs and what arrangements should be made to meet them.

Transport for eligible children

9. Local authorities must make suitable home to school travel arrangements as they consider necessary for “eligible children” of compulsory school age to attend their “qualifying school”. (Education Act 1996, 508B(1) and Schedule 35B)

Transport to education setting

10. 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. (The Children and Families Act 2014, section 82)
11. When a council finds it is “necessary” to provide transport for the young adult under section 508F, then the transport must be free of charge. (Education Act 1996 section 508F(4)
12. If a local authority does not consider it “necessary” to provide transport under section 508F it may still choose to pay some or all of the reasonable travel costs under section 508F(8) or as social care provision under the Care Act.

The Council’s Local Offer

13. The Council’s Local Offer sets out the services available to children and young people. It explains that for students aged 19 to 25 years old:

“If you have an EHCP we will consider whether assistance with travel is necessary to enable you to attend your education placement. If so, you will not need to provide a financial contribution.”

14. For successful applicants:

“If you are eligible, you will not be able to choose the type of travel assistance you will receive and will be expected to travel by the cheapest form of transport so we can provide the most cost-effective service.”

“The forms of transport assistance available are:

• Seat on a contract vehicle (coach, minibus, or taxi)
• Reimbursements for petrol or public transport…”

The Council’s Policy

15. The Council’s Home to School/College Travel and Transport Policy June 2020 sets out the basis on which it provides transport for children and young people.

Young people aged 19 – 25

16. Section 7 of the policy says:

“The Council will consider whether assistance with travel is necessary to enable young adults with EHCPs to maintain attendance at their education placement. If it is identified that assistance is necessary, then there would be no charge/financial contribution expected from the young adult.”

“Each request will be assessed on a case by case basis, considering the law, Council policy and any supporting information provided.”

Forms of travel assistance

17. Section 9.1 of the Council’s policy sets out the type of travel assistance offered to “eligible children”. These include:

“travel allowance – for children with an EHCP”

“where reimbursement is the most cost effective method of providing home to school travel assistance… parents who take their child to school by car may claim a petrol allowance for the journeys undertaken while the child is on board. The mileage rates to be used will be set in line with Her Majesty’s Revenue and Customs (HMRC) rates that are designed to cover fuel and running costs for each mile of travel. The mileage to be used will be the shortest road route from the home address to the school.”

Travel allowance

18. Section 9.2 of the Council’s policy says where a child eligible for travel assistance has an EHCP, a parent may choose a travel allowance as an alternative, provided it is less expensive. Travel allowance payments are tiered based on the shortest straight-line distance for two journeys between home and school/ college:

19. During the COVID-19 pandemic, the Council put an “exceptional arrangement” in place whereby parents were reimbursed as below:

Appeals

20. If parents disagree with the Council’s decision on a school transport application, the Council offers a two-stage review process. This comprises a case review by a senior officer, and then by an independent panel.

What happened

21. In June 2020, Mrs C applied for home school transport to college for September 2020 for her son, G, who would be 19 when starting a four-year course. G has several development disabilities and other health issues. He has an EHCP in which the college is named as suitable provision for him.
22. Mrs C complained to the Council in August 2020 that she had not received a response to her transport request.
23. The Council responded in September, apologised for the delay and said it would review her complaint. It said it was considering applications individually but, in the meantime, could offer her financial assistance for taking G to college. Mrs C said that, with the second wave of the COVID-19 pandemic, she would transport G until cases fell to a safer level due to her son’s health issues and her husband having cancer and being immunocompromised.
24. The Council agreed to reimburse Mrs C £25.64 per day to the end of October 2020 under the “exceptional arrangement” because it had not offered any alternative transport. It also offered Mrs C £300 for her time & trouble and delay.
25. The Council then offered a taxi for G. Mrs C declined as she wanted to continue to transport G during the pandemic. The Council said she would be entitled to a daily payment of £13.85 under the Travel Allowance, based on a straight-line distance of 9.6 miles and the annual rate of £2,700 for 5 days (10 trips) a week.
26. G did not attend college in November 2020, during the second national lockdown, but Mrs C took him to and from college in December, before the country entered the third national lockdown from January to March 2021.
27. In January 2021, Mrs C appealed as she considered that the Council should pay the full transport cost based on the actual mileage covered in both directions.
28. In March, lockdown ended and Mrs C resumed taking G to and from college until the end of the academic year.
29. The Council then responded to Mrs C’s appeal. The reviewing officer did not uphold her appeal, so Mrs C made a second stage appeal. She reiterated that the Council should pay for four legs of journey a day (to and from college in both the morning and afternoon) based on the actual mileage.
30. A senior officer responded to Mrs C’s appeal in May, though this was considered under the second stage of the Council’s complaints procedure. As regards payments, the Council’s response explained that:
• It agreed that home to school travel was necessary for C.
• It had already made a payment of £300 for the delay in putting arrangements in place. For the period when it could not provide transport, it should pay the actual cost of four legs of the journey using the HMRC mileage rate of 45p. (This equates to £27.36 per day based on a distance of 60.8 miles.)
• It had then offered G a taxi but had agreed to pay Mrs C the travel allowance based on the rate of £2,700 per year. However, this was incorrect under its policy, because it should have paid Mrs C the actual cost of two legs of the daily journey, as the most cost-effective option.
• The most cost-effective option would give an annual payment of £2,599.20 (based on the HMRC rate for 30.4 miles per day for two legs and a 190-day academic year). However, to resolve the complaint, it agreed to pay the annual travel allowance based on the rate of £2,700 for the rest of the academic year.
31. As regards its policy, it found that this lacked clarity in respect of the “Definition of ‘necessary’ transport and the consequential duty to provide transport free of charge for young adults with an EHCP where the Council has commissioned the education provider”; and the “Offer of a fixed Travel Allowance where it is not the most cost effective form of travel”.
32. It agreed to review its policy in the light of case law and the Ombudsman report referenced in its report.
33. In May 2021, Mrs C provided a letter from the family’s GP saying “[G] is due his second vaccine on the 20th May and [Mrs C] on the 27th May… by the end of June, they will be at reduced risk of serious infection for the family as a whole”.

My assessment

Transport arrangements

September/October

34. I consider that the agreed payment of £300 is a suitable remedy for the initial delay making necessary arrangements for G and for Mrs C’s time and trouble.
35. The Council has also accepted that it should pay Mrs C the full cost of transport for four legs of the journey until it was in a position to make necessary arrangements. The Council is therefore correct in paying Mrs C her full transport costs at a daily rate of £27.36 for the initial period for September/October 2020.

November onwards

36. I consider that the Council’s rationale for and decision to pay for just two legs of the journey from November onwards is incorrect:
• The Council accepted that transport was necessary for G as a “relevant young adult” under section 508F of the Act. It offered transport for G in the form of a taxi (with a passenger assistant) at a daily cost of £164 (shared), or £183 (sole use). However, Mrs C said she would carry on transporting G, and the Council agreed to this.
• The Council says that Mrs C had voluntarily agreed to provide transport and this was the “most cost-effective” option, so she is only entitled to actual mileage payments for two legs (£13.68) rather than the full costs (£27.36). In support of this view, the Council has referred to section 9.1 of its policy and an Ombudsman report against Buckinghamshire County Council (19001498) which distinguished between voluntary and involuntary arrangements.
• Mrs C does not consider that the arrangements were voluntary but were necessary to safeguard her family’s health during the pandemic.
• Moreover, section 9.1 of the policy and the Ombudsman’s report both relate to travel arrangements for “eligible children” as set out in section 508B of the Act. In this regard, Schedule 35C Section 3.1.5 says “Travel arrangements, in relation to an eligible child, include travel arrangements of any description made by any parent of the child only if those arrangements are made by the parent voluntarily”.
• These sections of the policy, the Act and the Ombudsman’s report are not relevant to Mrs C’s request for transport assistance, as this involves transport for a relevant young adult and not an eligible child.
• Rather the Council must make transport arrangements it considers “necessary” under section 508F of the Act, and those arrangements must be free.
• The Council’s Local Offer says “If you have an EHCP we will consider whether assistance with travel is necessary to enable you to attend your education placement. If so, you will not need to provide a financial contribution”.
• Moreover, its policy (in relation to young people aged 19 – 25) says that if transport is necessary there will be no charge.
37. I consider that the Council should therefore reimburse Mrs C the additional costs she incurred transporting G to college during the 2020/21 academic year based on a daily rate of £27.36 for four legs of the journey, plus interest.
38. I also consider that the Council should pay Mrs C £300 for her inconvenience and distress at being refused transport at a time of considerable difficulty for the family, in addition to the £300 already paid for delay and time and trouble.

Transport appeal

39. Under the Council’s policy, it should have passed Mrs C’s second stage appeal through to the independent panel to consider. Instead, it carried out an officer review through the second stage of the Council’s complaints process.
40. This was fault because this was not the correct process. This has also potentially caused Mrs C injustice - the independent panel might have identified that this case involved a relevant young adult rather than an eligible child and reached a different decision from the officers involved in the second stage complaint.

Policy review

41. The Council found, in its second stage complaint investigation, that its own policy lacks clarity in respect of the “Definition of ‘necessary’ transport and the consequential duty to provide transport free of charge for young adults with an EHCP”.
42. It agreed to review its policy with a target date of the end of August 2021. To date it has not yet completed that review, so any lack of clarity in the policy remains. This is fault. The Council should urgently complete its policy review.

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Agreed action

43. The Council has agreed the Ombudsman’s recommendation, within six weeks of the decision date on this complaint, to:
• reimburse the additional costs that Mrs C incurred in taking G to college between for the rest of the academic year from November 2020, based on a daily rate of £27.36 for four legs of the journey;
• pay Mrs C interest on the additional costs based on the increase in the Retail Price Index between May 2021 (representing an average point in time when additional payments were due) and the decision date on this complaint;
• pay Mrs C a further £300 in recognition of the inconvenience and distress caused to and her family.
44. Before making the above payment, it should first contact Mrs C within two weeks to confirm the additional costs and interest set out above and to show how it has calculated this sum.
45. The Council should also within one month of the decision date on this complaint:
• remind officers involved in school transport of the correct process for dealing with school transport appeals;

and within three months of the decision date on this complaint:

• review its Home to School/College Travel and Transport Policy June 2020 to address the concerns about clarity identified by the Council’s second stage complaint investigation and ensure that its policy reflects its duties in respect of transport for relevant young adults set out in the Act; and
• review whether other parents’/carers’ mileage arrangements have been similarly affected since September 2020 and provide us with an action plan to address such cases.

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Final decision

46. I have closed my investigation on the basis that the agreed actions represent a suitable remedy for the injustice caused to Mrs C and her family.

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Investigator's decision on behalf of the Ombudsman