Summary: Mr X complains that the Council’s offer of a Personal Travel Budget made in 2020 is not a suitable way of making arrangements for home to college transport for his adult son who has special educational needs. He also complains that the Council has refused to make a new decision on the transport application he made in 2021. Instead it reviewed and repeated its previous offer. We do not find fault in the Council’s decision-making on the 2020 application, but the Council has failed to follow its policy in dealing with the 2021 application. The Council has agreed to make a formal decision on the later application. This is a suitable remedy.

The complaint

1. Mr X complains that:
1. the Council's offer of a Personal Travel Budget is not a suitable way of making arrangements for home to college transport for his adult son who has special educational needs. Mr X disagrees with the offer because he says it relies on him and his wife having to spend time and money organising drivers, which he says should be the Council's responsibility;
2. the Council refused to make a decision on his new application for transport for the year 2021-2022, and instead treated the application as a review of the previous application, resulting in the same offer.

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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 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, sections 26(1), 26A(1) and 34(3), as amended)
3. 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 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)
5. If we are satisfied with 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

6. I discussed the complaint with Mr X and considered the information he provided. I considered relevant law, guidance and policy on education transport for adult learners.
7. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Education transport for young adults with special educational needs

8. A child or young person with special educational needs and disabilities (SEND) may have an Education, Health and Care (EHC) Plan, setting out the support they need to meet their needs. An EHC Plan may run up to the age of 25.
    
9. For young adults over the age of 19 with an EHC Plan councils must “make such arrangements for the provision of transport…as they consider necessary” to help them attend further or higher education. The transport provided must be free. (Education Act 1996, section 508F)
10. Statutory guidance ‘Transport to education and training for people aged 16 and over’ (2019) says the overall intention of the adult transport duty is to ensure that those with the most severe disabilities with no other means of transport can undertake further education and training after their 19th birthday to help them move towards more independent living.
11. The guidance says the law gives councils discretion to determine what transport and financial support are necessary. In deciding whether to provide transport to an applicant, it must exercise its power reasonably taking account of all relevant matters.
12. The Council has a ‘SEND Travel Assistance Policy for Post-19 year Olds’ (‘the Policy’). The version applying at the time of the events covered in this complaint was dated 30 April 2020. The Policy sets out the criteria for awarding help with transport, how the Council makes the decision and how to appeal. The Policy says that in deciding whether the Council considers it necessary to provide transport it will consider all relevant factors. This includes whether the adult learner has a suitable vehicle, such as a Motability vehicle.
13. If the Council decides to approve an award it will assess the most suitable form of travel assistance. This will be one of the following:
• a Personal Travel Budget (PTB)
• independent travel training
• a minibus or taxi.
14. The Policy says:

“An adult learner, parent or carer may be offered a PTB to provide financial assistance to organise transport to college. The amount is based on the distance of a return journey from home to the nearest suitable college and is paid in monthly instalments.”

15. The Policy describes the application and appeal process as follows.
• “A new application is required for everyone requesting post-19 travel assistance whether the adult learner is remaining in the same college or moving to a new place of learning. A new application is needed for each new course or placement”. (SEND Travel Assistance Policy for Post-19 year Olds’ paragraph 4.2)
• “All applications will be assessed” by a panel of officers known as the ISEND Travel Panel. The Panel will inform the applicant of the decision in writing.
• If the young person or their parent or carer is unhappy with the decision they may appeal to the Discretionary Transport Appeal Panel made up of elected councillors.
16. The Policy has a section on ‘Ongoing provision of travel assistance’ which says “travel assistance provided will be reviewed annually” (section 9). It also says if the adult learner’s circumstances change they must make a new application.

What happened

17. K is now 23 years old. He has a diagnosis of moderate to severe learning disability. K was due to start a course at the college named in his EHC Plan in September 2020. He had previously received taxi transport to college from the Council as he cannot travel independently. In June 2020 Mr X applied to the Council for travel assistance for K from September.
18. The ISEND Travel Panel considered the application in mid-September. The Panel decided it was necessary to provide help with transport for K and this would be free of charge. It offered a PTB of £177 per week. It said one option was to use this sum to employ a driver to take K to and from college in his Motability vehicle, if K agreed to use it for this purpose. The amount of the PTB it offered was based on a calculation of the petrol costs for the journey and the costs of employing a driver based on social care direct payment hourly rates for personal assistants.
19. Mr X replied saying K did not want to use his own vehicle but wanted a taxi as before, as he did not respond well to change. Mr X also said even if K did agree, the current offer would not cover all the necessary costs. He referred to the costs of recruiting and vetting a driver, paying for insurance, arranging sickness and holiday cover and putting in place COVID-19 safety measures such as cleaning and putting in a screen behind the driver.
20. Mr and Mrs X were also in correspondence with the Council about the Council’s delay in dealing with the application. Mr and Mrs X had been paying for taxi transport for K since the start of term. The Council agreed to reimburse these costs.
21. There was further correspondence between Mr X and the Council about the PTB offer. The Council stood by its decision but added that K could decide how to use the budget. For example it said he could use someone he already knows to drive him, or he could use a taxi on some days. The Council referred Mr X to the appeal process if he still disagreed with the decision.
22. Mr X appealed to the Discretionary Transport Appeal Panel. He asked the Council to arrange a taxi service. He argued that the PTB offered was not suitable for the following reasons:
• It would not cover the actual costs of reliable transport as it was not enough to engage skilled drivers aware of K’s needs, with cover for absence. Therefore the Council was not fulfilling its duty to provide transport free of charge.
• It required Mr and Mrs X as parent carers to put time and effort into managing and employing drivers, which they could not do.
• It exposed K to increased risk of COVID-19 infection by allowing the use of his Motability vehicle by people outside the family.
23. After some delay the Council wrote to Mr X with the Panel’s decision at the end of November. The Panel felt the original decision had been reached fairly and reasonably and met the duty to provide travel assistance for K as an adult learner. The Council said the Panel considered Mr X’s arguments for changing the support offered. But it rejected them for the following reasons.
• It noted K’s wish for a taxi but decided “his preference did not amount to an actual need”.
• K uses his Motability vehicle at other times and the Panel considered it reasonable for him to use it for college.
• The Panel reviewed the calculations and found the PTB offer reflected a realistic assessment of the true cost of travel between home and college using the Motability vehicle.
• Regarding COVID-19 safety, the Panel believed the risk to K was no greater in a private vehicle than in a licensed taxi. The Council could provide further safety guidance if needed.
• As Mr and Mrs X managed K’s finances, the Panel felt they could manage his transport arrangements as well.
• K could use the PTB flexibly, including to offset against taxi costs.
24. Mr X engaged a solicitor who sent a legal Letter Before Action to the Council saying its decision was unlawful, and threatening Judicial Review. The argument was that the Council could not lawfully require K to use his Motability vehicle or require the parents to manage the transport arrangements. But if that was part of the offer, then the budget was not enough to cover the various costs of hiring a driver and implementing COVID-19 safety measures. The letter said as the free transport offer could not be based around the use of a Motability vehicle, the Council must provide a taxi.
25. In its response the Council defended its decision saying its approach was lawful and offered flexibility in how to use the PTB. However it offered to consider increasing the budget to cover driver insurance and vetting costs as a ‘gesture of goodwill’. Mr X did not take up this offer.
26. There was further correspondence from the solicitor, but he missed the deadline for applying for a Judicial Review.
27. Mr X complained to the Ombudsman. He also made another application on 16 July 2021 for transport assistance for K to attend a new course for the academic year 2021-2022. The Council told him it would not progress this application until the Ombudsman had issued a decision on his complaint about the 2020-2021 application.
28. Mr X engaged another solicitor who sent the Council a Letter Before Action. threatening Judicial Review if the Council did not make a decision on the 2021-2022 application and make suitable arrangements to provide transport within 14 days. The solicitor argued that the offer of a PTB where K and his parents would have to make the arrangements for a driver was unlawful. He said for the Council to meet the adult learner transport duty it would have to make the arrangements to employ the driver itself (including arranging sickness and holiday cover) or provide taxi or minibus transport.
29. As it seemed likely the issues would be decided in court, the Ombudsman stopped investigating the complaint and closed it in November 2021.
30. The Council defended the legal challenge. It argued that the section of the Policy the solicitor quoted required the Council to review travel assistance provided each year. It said its practice was to complete an internal review of transport offers and there was no expectation that the student had to make a fresh application. The Council said there had been no change of circumstances and it had made it clear in March 2021 that the offer of the PTB was still available.
31. The Council repeated the offer and said it was willing to backdate the payment for each day K had attended college from September 2020.
32. Mr X accepted the offer. However he said this did not mean he agreed the Council had fulfilled its duty to provide transport or that he considered the arrangements were suitable.
33. Mr X did not proceed with the legal action against the Council. He made a further complaint to the Ombudsman about both the original transport offer of September 2020 and the refusal to make a fresh decision on the new application for 2021-2022.

Analysis

Complaint a) – decision on suitability of arrangements

34. The Council made the decision Mr X complains about in November 2020 after the stage 2 Discretionary Transport Appeal Panel meeting. This is more than 12 months ago. However given the history of events I have decided to exercise discretion to investigate the matter. Mr X first complained to the Ombudsman within 12 months of the decision. We then closed the complaint pending the outcome of a Judicial Review which did not take place. Mr X made a further complaint to the Ombudsman shortly after deciding not to proceed with the court case. In the circumstances I consider it reasonable to investigate the complaint now.
35. However Mr X’s key dispute with the Council is about the interpretation of the law: whether offering a PTB which relies on the family to make the arrangements for a driver for the Motability vehicle fulfils the Council’s duty to “make arrangements for the provision of transport” under the Education Act 1996. Mr X’s solicitor set out his view of the law on behalf of his client in the Letter Before Action in 2020. The Council responded based on its own legal advice. The Council considered its approach was lawful. The Ombudsman cannot resolve legal disputes or provide definitive legal interpretations. That is a matter for the courts.
36. Nor can the Ombudsman question the merits of a council’s decisions unless there is evidence of fault in the way they were reached. So I have considered how the Council arrived at its decision.
37. The Council’s transport duty towards an adult learner with special educational needs and disabilities is to make such arrangements as it considers necessary. The Council has explained why it considers the offer it has made suitable. It has dealt with each of Mr X’s arguments, as summarised in paragraph 23 above. When Mr X replied saying the PTB does not cover the cost of DBS checks and insurance, the Council offered to consider increasing the budget to cover these costs if Mr X provided the evidence. It is still open to him to provide this information.
38. In my view the evidence shows the Council has considered the arguments and information Mr X provided and given reasons for its decision. It has demonstrated it has considered the requirements of the law and its policy and has shown it is willing to review the offer in the light of new information provided. Clearly Mr X disagrees with the decision. However I do not consider the Council was at fault in how it arrived at the decision and so I cannot criticise the decision itself.

Complaint b) - failure to make a fresh decision on the application for 2021-2022

39. The Council says its policy does not require a fresh decision each year as there is no requirement to make a new application. It says under its policy it can review the transport arrangements, which is what it has done.
40. The Council has confirmed that the policy relevant at the time of Mr X’s application of July 2021 was the one described in paragraphs 12-16 above. The Policy makes it clear that there must be a new application for travel assistance each time the student changes course. Mr X has explained that K had to apply to his college to attend a new course in each of the academic years 2019-2020, 2020-2021 and 2021-2022. Each course had a different name and was at a different level.
41. Under the Council’s policy it should take a new application for transport each year, and make a new decision on each application. It should provide a written decision which can be taken to appeal if the applicant is unhappy with it. Mr X says the Council has expected him to make a new application every year of K’s post-16 education and this is what he has done.
42. I consider that the Council’s failure to follow its policy in dealing with the July 2021 application for transport assistance for the year 2021-2022 is fault. The result of failing to apply the policy and make a formal decision on the application is that Mr X and K have lost the opportunity to appeal to the Discretionary Transport Appeal Panel.

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Agreed action

43. To remedy the injustice to Mr X and K I recommended that within one month of the final decision on this complaint the Council should make a formal decision on the application for travel assistance made in July 2021. It should send them a written decision and offer them the right of appeal if they are unhappy with it. The Council has agreed to this recommendation.

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Final decision

44. I have found that the Council was not at fault in the way it reached its decision of November 2020, but there was fault in how it handled the new application in July 2021. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.
45. 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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Investigator's decision on behalf of the Ombudsman