Summary: Mrs X complained the Council has failed to provide appropriate free transport to enable her adult son Mr Y to attend the college named in his Education, Health and Care Plan. The Council was at fault. It failed to consider whether transport was necessary and delayed considering its duties under the Care Act. The Council has agreed to apologise to Mr Y and make a payment. It has also agreed to review its policy and procedure

The complaint

1. Mrs X complained the Council has failed to provide appropriate free transport to enable her adult son Mr Y to attend the college named in his Education, Health and Care Plan. As a result, he is unable to attend the college for half the week and it has caused Mrs X additional strain and frustration in having to transport him to college.

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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. We cannot question whether an organisation’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)
4. 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

5. I have considered the information provided by Mrs X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
6. I gave the Council and Mrs X the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a 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

Legislation 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) Councils may also be able to assist with transport under the Care Act 2014 if the young adult has care needs. 
9. 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)).
10. The Upper Tribunal (Administrative Appeals Chamber) has considered transport for post-19 learners with an EHC plan. 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] UKUT 246 (AAC)
11. There are different rules for those young learners aged 16-18 and those over 18 but who started the course before their 19th birthday.
12. Where a council decides it is not necessary to provide free transport for an adult learner, it also has the power (known as discretion) to pay an adult learner’s travel expenses in some cases.
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

The Council’s SEN transport policy

14. The Council’s ‘home to school and college travel arrangements policy for children and young people with special educational needs’ includes a section on young people aged 16 to 25 years with special educational needs. Its policy says ‘Local Authorities have a duty to facilitate access to full-time education for all young people aged 16 -18 years and those continuing learners who started their programme of learning before their 19th birthday and this may include assistance with travel in certain circumstances. Under Raising the Participation Age Agenda, young people must remain in full time education and training until the age of 18 years. In line with the Local Authority’s duty under the Education and Skills Act 2008 to encourage, enable and assist participation of learners with learning difficulties in education and learning, this policy will apply, in some cases to young people up to the age of 25 subject to an individual assessment of need’.
15. The policy states that ‘unless there is an individual assessment of need for assistance with travel the responsibility for travel to and from college rests with the young person and their family’. It sets out the options that would be considered when assessing travel arrangements. These included independent travel training, a personal travel budget, supported public transport or travel vehicles.
16. The Council’s policy sets out a two stage appeal process: a stage one review by the Head of Service, followed by a stage two independent panel.

The Council’s post-16 transport policy statement

17. This sets out ‘Local authorities also have a duty to encourage, enable and assist young people with learning difficulties / disabilities to participate in education and training, up to the age of 25’.
18. The statement says: In line with the Local Authority’s duty under the Education and Skills Act 2008 to encourage, enable and assist participation of learners with learning difficulties in education and learning, the LA will assist in some cases to young people up to the age of 25 subject to an individual assessment of need. A contribution towards the cost of transport will be sought from the parent/carer or of over 18 years, the individual themselves’.

What happened

19. Mr Y started a new college course in September 2021, four days a week. Mr Y was 19 years and has an EHC plan which names the college he currently attends. He has a diagnosis of Autistic Spectrum Disorder and has learning needs. The college is over 30 miles from home.
20. In June 2021 Mrs X applied to the Council for school transport for Mr Y. The Council responded later that month. It said it was unable to offer travel assistance to Mr Y as he had transferred to adult services. It quoted its policy which said ‘Local Authorities have a duty to facilitate access to full-time education for all young people aged 16 -18 years and those continuing learners who started their programme of learning before their 19th birthday and this may include assistance with travel in certain circumstances. Under Raising the Participation Age Agenda, young people must remain in full time education and training until the age of 18 years’. It said as Mr Y was starting his course after his 19th birthday at a new college, he was not eligible for assistance.
21. In July 2021 Mrs X appealed the Council’s decision. Her representative wrote to the Council and provided letters from NHS professionals in support of Mr Y’s transport application who confirmed Mr Y could not travel independently to the college. An officer from the Council’s adult social care department also confirmed they believed Mr Y would not be able to travel independently. They confirmed as Mr and Mrs X work full time they could not transport Mr Y to college. They asked the Council to conduct an individual assessment of need for assistance for travel for Mr Y.
22. The Council responded at stage one of its appeal process in August 2021. The letter set out the Council’s policy and law. It set out the Council’s duty for 16 to 18 year olds as well as sections of the Education Act related to adult learners. It said in reviewing the appeal it had conducted an individual assessment of need for assistance with travel for Mr Y. It said the SEN team was unaware Mr Y had enrolled at the college until May 2021 when Mrs X requested an updated copy of his EHC Plan. It referred to the college having nearer sites available. It said if the SEN Team had been involved in the discussions the family would have been made aware of the post-16 travel policy and there was no entitlement to transport to and from the named provider.
23. It said it had further assessed Mr Y’s application and that travel assistance would be provided to the college either through the reimbursement of mileage or a personal travel budget for a period of one year. It noted Mr Y had a Motability vehicle and it was not unreasonable to expect this vehicle to be used to support Mr Y to attend college.
24. It explained a personal travel budget would be paid at the same rate as mileage (Calculated based on two return journeys per day at a mileage rate of 44p per mile). It set out the ways in which a personal travel budget could be used. This included to cover the cost of driving Mr Y to and from college, arrangements to book a taxi and arrangements for a personal assistant to travel with Mr Y. It asked Mrs X to confirm whether the family would prefer mileage reimbursement or a personal travel budget. It said the Council took into account all relevant matters such as the needs of its population and the resources available when exercising its discretion.
25. In August 2021 the Council’s social worker for Mr Y emailed the Council’s transport team to ask for the rationale for not funding Mr Y’s transport to college. An officer responded that Mrs X had appealed and provided a copy of the appeal response.
26. Mrs X remained unhappy and told the Council that due to work commitments she and Mr X could not drive Mr Y to college. Mrs X said the Council had the option to suggest alternative provision when the college was consulted. She said the Council was invited to attend the EHC plan transition planning meeting for his move into post 19 education or training and at no point in the consultation process was transport raised by the Council. She said Mr Y was not told he would have to transport himself. She considered the offer of mileage and the use of the Motability vehicle was a reasonable offer, but Mr Y could not drive and Mr and Mrs X were not available to transport him. The offer of a personal budget would not cover the cost of a taxi and Mr Y could not afford to pay the additional amount.
27. The Council considered the appeal at stage two of its appeals process in November 2021. A report to the stage two panel set out that:
• The SEN team were unaware of Mr Y’s enrolment at college until May 2021 requesting a copy of his updated EHC Plan. If the SEN team had been involved in these discussions the family would have been made aware that travel assistance will be considered in accordance with the local authority’s own post-16 transport policy and there is no entitlement to transport to and from this named provider.
• There is statutory guidance that directs the Authority to provide travel arrangements that ensure best value for money is achieved.
• Mr Y is in receipt of a Motability vehicle however, advised that due to parents work commitments they are unable to drive him to and from college.
• The view of the Authority is that it is not unreasonable for Mr Y’s Motability vehicle to be used to support Mr Y to attend college. Motability guidance states the car should be used for the young person to access education; it is recognised as the young person’s vehicle when they reach 18 years of age.
• The course Mr Y attends is offered at three alternative sites one of which is significantly closer. The SEN Team were not involved in his placement at the college.
• Young people will qualify for free transport under the adult duty where the local authority assesses that in order to attend education or training, they require transport arranged by the local authority, such as specialised vehicle or minibus. If the young person’s requirements are a personal travel budget, mileage allowance or public transport pass then this does not need to be provided free by the local authority as they have not put the travel arrangements in place.
• In providing transport Mr Y would be further isolated from his peers and travel arrangements will not aid his independence and mobility. He has use of a Motability vehicle that should support his travel to and from college
28. The stage two appeal panel upheld the decision reached at stage one. Having considered Mr Y’s circumstances, it considered the offer of mileage reimbursement, or a personal travel budget was a reasonable offer to support Mr Y’s attendance at college. It considered the Council’s policy was legally compliant and had been correctly applied.
29. Since September 2021 Mr and Mrs X have taken Mr Y to college two days a week and have received mileage for doing this. Mrs X says in doing so she and Mr X have had to work late to catch up their hours. Mr Y has been unable to attend the other two days a week he was meant to attend his college course.
30. In February 2022 Mr Y’s social worker emailed the Council’s school transport team. They advised there were still issues with getting Mr Y to college. They asked whether Mr Y’s mileage allowance could be used towards taxi fares. The transport team advised that Mrs X had agreed to a mileage claim but could alter this to a personal travel budget arrangement. However, the budget would be the same.
31. The Council’s adult social care (ASC) department proposed employing a care worker to drive Mr Y to college using his Motability vehicle. However, they were unable to find a provider. They asked whether this money from the ASC department, from support identified under the Care Act, could be used with his transport budget to fund a taxi.
32. In March 2022 the transport team responded that the travel assistance awarded to Mr Y could be used towards a taxi if Mr and Mrs X were happy to receive a personal travel budget.

Analysis

33. 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 Mr Y’s application for transport to college on the basis that he was over 18. It failed to consider the requirements of s508F of the Education Act, that Mr Y had an EHC Plan and was a relevant young adult. This was fault.
34. The Council has a separate and distinct duty to make such arrangements as they consider necessary in respect of relevant young adults with an EHC plan for the purpose of facilitating their attendance.
35. The Council has failed to decide whether it considers it is ‘necessary’ for Mr Y to receive travel support to facilitate his attendance at college. This is fault. 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 them, in deciding that question they must exercise their judgment judiciously and in good faith”. There is no evidence to show that consideration. This does not mean we consider transport for Mr 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.
36. The Council offered a discretionary mileage allowance/personal travel budget but has not shown how that can be used to ensure Mr Y can attend college. Mr and Mrs X cannot transport him to college each day and have no obligation to do so as Mr Y is an adult. They have explained there are no family and friends available who can transport him and Mr Y cannot drive. The Council was not at fault for taking into account that Mr Y has a Motability vehicle but must also consider there was no-one else available to drive the car on his behalf.
37. Mr Y’s EHC Plan names only one college. The law allows the Council to name a closer college if it considers there was a nearer suitable college available, but it did not do so. The Council was made aware that Mr Y was looking to go to the college in May 2021 and it agreed to name the college in the EHC Plan and did so in June 2021. There is no evidence the Council discussed with Mr and Mrs X or Mr Y that transport would not be provided to college. It did not give them sufficient information to make an informed decision. This was fault. The Council’s social worker for Mr Y also queried the provision of transport with the transport team In August 2021 which suggests they too had an expectation Mr Y would receive transport support as an adult learner.
38. Different duties apply to young people of sixth form age and adult learners with an EHC Plan. The Council’s policy fails to clearly set out its statutory duty to provide free transport if it is necessary for adult learners with an EHC Plan. This is fault. It appears staff at the Council are also confused by the different duties, given the incorrect response to the initial application.
39. In February 2022 the Council’s ASC department proposed employing a care worker to drive Mr Y. This was an appropriate solution, however it has been unable to recruit someone to carry out this task. It suggested pooling the budget for a care worker with that of the transport budget to enable Mr Y to use a taxi. I have seen no evidence that this proposal has moved forward to enable Mr Y to improve his college attendance.
40. The Council has a duty to secure the education provision specified in Mr Y’s EHC Plan. It cannot do this if Mr Y is unable to attend the college.
41. From August 2021 the ASC Team was aware the Council was not willing to provide school transport to Mr Y. The Council should have considered its duties sooner under the Care Act. Its failure to do this is fault.
42. Mrs X says Mr Y has only been able to attend college twice a week instead of the four days required by the course. If the Council had considered its duties sooner, I cannot know exactly what the outcome would have been and at what point the Council might have satisfactorily addressed Mr Y’s transport issues or suggested an alternative education setting. However, the issues should have been addressed sooner. This has caused Mr Y uncertainty and frustration.
43. In response to a draft of this decision the Council confirmed that since late April 2022 Mr Y has received a combined ASC/transport budget. Mr Y has used this to fund taxi transport to college and so is now able to attend college full time. Mrs X says the budget does not cover the full cost so they are contributing to it to support Mr Y.

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Agreed action

44. Within one month of the final decision the Council has agreed to:
1. assess whether it is ‘necessary’ for Mr Y to receive transport to his college as an adult leaner. This should include a written record of its deliberations and consideration of section 508F of the Education Act and the 2016 case law.
2. apologise to Mr and Mrs X and Mr Y and makes a symbolic payment of £500 to Mr Y to acknowledge uncertainty and time and trouble caused by Council failings.
3. At Mr Y’s annual review, or another appropriate meeting if the review is not due within the next month, the Council will consider the impact the lack of transport has had on Mr Y’s ability to attend college and to complete the course when deciding on his future goals.
45. Within three months of the final decision the Council has agreed to:
1. Review its post-16 transport policy to ensure it clearly sets out the difference in its duties between sixth form and adult learners, including the Council’s responsibility to provide free of charge transport where it is considered necessary for relevant young adults with an EHC Plan.
2. Review its procedure for determining applications and appeals from adult learners for transport to ensure the Council decides whether transport is ‘necessary’ and if not whether the Council has decided to provide transport or other transport support under its discretionary powers.
3. When naming a post-19 setting in an EHC Plan, ensure it properly considers whether the placement is appropriate and suitable and ensures the individual and/or their family are made aware of the Council’s transport policy and the likelihood of the provision of transport. This should allow them to make informed decisions
4. Ensure the Transport Team appropriately signposts applicants to ASC to consider whether support for disabled adults to attend post -19 education should be provided under the Council’s Care Act duties.

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Final decision

46. I have completed my investigation. The Council was at fault which caused an injustice. The Council has agreed to take action to remedy the injustice caused and to improve the service to prevent a recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman