Summary: The Ombudsman has not found evidence of fault causing Ms X a significant injustice. The Council is entitled to charge a financial contribution for post-16 transport and the Ombudsman has no jurisdiction to challenge a Council policy where there is no evidence of fault.

The complaint

1. Ms X complains about the Council’s offer of post-16 transport for her child who is disabled and has an Education, Health and Care (EHC) Plan. In particular, Ms X complains:
• The Council failed to fully fund the transport
• The Council failed to explain how its policy was lawful or answer all her questions
• The Council refused to accept a complaint about its policy
• About the conduct of a staff member who gave inaccurate information about the transport offered to her to a Councillor.
2. Ms X also complained to the Council about data access requests she made for documents. This matter has been considered by the Information Commissioner.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. 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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What I have and have not investigated

7. I have investigated the above complaint issues except for the complaint about data access. Ms X has taken this matter to the Information Commissioner, which is the appropriate route to resolve such complaints. There is no additional outcome the Ombudsman can achieve.

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How I considered this complaint

8. I have considered information provided by Ms X and the Council including:
• Complaint correspondence
• Transport documents
• Council’s transport policy for sixth form learners.
• Records of transport committee meetings.
9. I have considered relevant law and guidance including:
• Education Act 1996
• Children and Families Act 2014
• Statutory Guidance ‘Post-16 transport to education and training’, 2019.
10. Ms X and the Council 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

Relevant law and guidance

11. The law on school or college transport changes when a child moves from compulsory school age to sixth form age.
12. The statutory responsibility for transport for 16-19 year olds (who have started a course before their 19th birthday) rests with Councils. Councils must prepare and publish an annual transport policy statement specifying the arrangements for the provision of transport, or otherwise, the Council considers necessary to facilitate attendance of those of sixth form age receiving education or training. (Education Act 1996 509AA and statutory guidance).
13. The statement must include the details of the transport arrangements and the details of financial support in respect of reasonable travelling expenses the Council considers it necessary to make. These can include but are not limited to:
• A concessionary fares scheme
• A bus pass or cash equivalent
• Independent travel training
• A fixed mileage allowance
• Provision of actual transport.
14. Councils have to consider the needs of vulnerable groups including those with disabilities and are expected to target any support on those young people and their families who need it the most.
15. Councils can ask learners and their parents for a financial contribution and in exercising their discretion to charge a contribution should ensure this is affordable, ensures arrangements are in place for those with a low income, and take into account the likely duration of learning. For example, young people with special educational needs and disabilities may need to remain in education longer and the contribution sought would need to allow for the fact these families may have to contribute longer. Councils can consider eligibility for 16-19 bursary funding that is available for some learners.
16. The transport needs of young people with special educational needs and disabilities must be reassessed when a young person moves from compulsory school age to post-16 education, even if they remain in the same setting.
17. There is no entitlement to transport just because a specific institution is named on an Education, Health and Care Plan.
18. In D v Leicestershire CC EWCA CIV502 the courts were reluctant to interfere in political judgements regarding the ‘allocation of scarce or finite resources’ and did not criticise a Council that charged a contribution of £660 for specialist sixth form transport and did not find it discriminatory.
19. Councils should have an appeals process in place for parents who wish to appeal about the eligibility of their child for travel support or the arrangements made.
20. The statutory guidance recommends councils adopt a similar appeals process as for pre-16’s:

• Stage 1: review by a senior officer. Within 20 working days of receiving a parent’s written request to appeal the decision, a senior officer reviews the original decision and sends the parent a detailed written notification of the outcome of the review setting out the nature of the decision, how the review was conducted, what was taken into account, the rationale for the decision reached, and how to escalate their case to stage 2; and
• Stage 2: Within 40 working days of receipt of the parent’s request for an independent appeal panel to consider written and verbal representations, a detailed decision is sent setting out: the nature of the decision reached; how the review was conducted; what factors were considered; the rationale for the decision reached; and information about appealing to us.

What happened

21. While Ms X’s child was of compulsory school age, they were eligible for free home to school transport. The family accepted a direct travel payment (or personal travel allowance) in lieu of actual transport being provided.
22. The Council’s policy sets a rate per return journey for the direct travel payments. This is not based on the actual mileage, but instead distances up to 20 miles are divided into six bands with a set rate per band. Distances above 20 miles are calculated individually.
23. My understanding is that in practice the direct travel payment only allowed for one return journey per day, not four legs of the journey (to drop off and pick up). Ms X queried this in her correspondence.
24. Updated statutory guidance for pupils age 5 to 16, as well as previous Ombudsman decisions, have said that mileage allowances should cover all four legs of getting a child of compulsory school age to and from school.
25. The Council has acknowledged the updated guidance and said it will consider this when it next reviews its transport policies.
26. The Council says when a pupil is due to move to post-16 education it sends a letter to parents advising they need to reapply for transport for post-16 education and advising that a financial contribution will be payable. It told me it does not retain individual letters, but Ms X was on the mailing list.
27. The Council’s post-16 transport for pupils with EHC plans are managed not through the usual application process to the transport team, but by the Special Educational Needs (SEN) team. This means families do not always have to make an application but may be automatically assessed as eligible following which the Transport team will contact the family about the arrangements.
28. The Council says in Ms X’s case she did not make an application; it assessed eligibility when the School told the Council Ms X’s child’s placement was continuing post-16. The Council decided Ms X’s child remained eligible under its post-16 policy for transport support and it would again offer a direct travel budget.
29. Ms X only understood a financial contribution was payable when she was contacted about travel arrangements. Ms X told the Council she would not pay a financial contribution and the Council needed to ‘do more’ under the Equality Act. She challenged the lawfulness of the Councils policy and asked questions about how the Council calculated the direct travel payment bands and how it calculated the financial contribution. Ms X said she had signed a ‘contract’ with the Council in 2018 about the rate of the travel budget which did not state it ceased at age 16 and considered the Council could not resile from this and start requiring a contribution.
30. The Council withdrew the direct travel budget when Ms X refused to pay the contribution. Ms X complained and argued the Council could have continued to pay the budget, less the contribution, while her ‘appeal’ about the amount of contribution was considered.
31. Ms X also complained an officer had told a Councillor involved in her case that the Council had made an offer of a direct travel budget (less contribution) to her when this was not the case as the budget had been withdrawn.
32. Ms X did challenge the withdrawal of the budget successfully, and this was reinstated (less the financial contribution) while the SEN team considered her ‘appeal’. The outcome of the ‘appeal’ was the Council continued to require Ms X to pay the flat rate contribution and the direct travel budget remains in place at the usual banded rate.
33. The Council declined to consider a complaint about its policy. This had been approved by Councillors and was subject to consultation at the relevant times and therefore it said any challenge would need to be via judicial review of the policy.
34. Ms X was dissatisfied the Council had not answered all her questions and that it had not addressed the issue of inaccurate advice to the Councillor. The Council said its complaint response did address the officer’s advice. It said it had reviewed the documents and decided accurate advice was provided. This documentation has not been provided to me.
35. The Council told me it has no legal duty to provide free transport to learners over 16 and its policy requires all students to pay a contribution. It says where the pupil has an EHC Plan it only requires a contribution in Year 12 and 13 and any transport required beyond that point will be free.

Analysis

36. The Ombudsman’s focus is on public administration at a corporate level, not an individual error or an individual’s professional competence.
37. We investigate fault that has caused injustice and carry out proportionate investigations. We obtain enough information to establish whether fault and injustice have occurred, but it is not our role to answer every question a complainant may have.
38. We cannot question Council policies or decisions where there is no evidence of fault in the way the decision or policy was reached. (Local Government Act 1974, section 34(3), as amended)
39. The Council’s duty is to publish a transport statement for post-16 pupils explaining what support is available. There is no obligation on a Council to provide free home to school transport to those of sixth form age on the same basis as for those eligible at compulsory school age. Councils are legally permitted to request a financial contribution post-16 and has discretion to target resources at those in the most need.
40. There is no fault by the Council in having a policy that requires a financial contribution post-16. This must be affordable, but the Courts have not sought to challenge a contribution at a similar level to that in this Council’s policy.
41. The law changes when compulsory school age ends and Councils are required to reassess eligibility for transport at that point. It was not fault that the Council did so in Ms X’s case or that it requested a financial contribution given the law determining eligibility had changed and its post-16 transport policy now applied.
42. It is not for the Ombudsman to determine contract law in relation to the 2018 agreement, this would be a matter for the courts.
43. As Ms X did not need to apply for post-16 transport, because this was done at the Council’s initiative, I do not know what alternative offers of transport might be available. It is open to Ms X to explore with the Council whether alternatives to the direct travel budget may be available.
44. Ms X was not offered a stage two appeal. There are also no appeal documents other than correspondence between Ms X and the SEN team on file. Appeal decisions should be provided in writing, with reasons given, so they can be challenged if appropriate. There is no legal requirement to have a two-stage appeal, but this is what the statutory guidance recommends.
45. The Council told me in response to my draft decision that Ms X was given advice about the appeal process but chose to go direct to the SEN team. Ms X’s correspondence is more a general challenge to the policy, then Ms X making representations (or an appeal) about the nature of her particular arrangements or about why the contribution was not affordable in her individual case. If Ms X wishes to explore alternatives to a direct travel budget or wishes to make representations to the Council, with evidence, showing why the contribution is not affordable, then I would expect the Council to consider these and offer Ms X the option of a fresh appeal.
46. Due to gaps in the documentation available I have not been able to make a finding about whether an officer did or did not give inaccurate advice. However, even if this did happen, I am not persuaded it caused Ms X a significant injustice. It did not prevent Ms X successfully challenging the decision to withdraw the budget. I am not persuaded it is proportionate for me to investigate this further.

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Final decision

47. I have completed my investigation. I have not found evidence of fault causing Ms X a significant injustice. The Council is entitled to charge a financial contribution for post-16 transport and the Ombudsman has no jurisdiction to challenge a Council policy where there is no evidence of fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman