. This is because there is not enough evidence of fault by the Council for us to be able to question the merits of its decisions.
The complaint
The complainant, I shall call Mrs X, says the Council failed to gather all relevant information before refusing transport for her daughter, who has an Education, Health, and Care Plan (EHCP), to sixth form college.
She says her husband is a General Practitioner (GP) and cannot be flexible with his work commitments as the Council suggests.
The Ombudsman’s role and powers
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.’ We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended) 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, section 34(3), as amended)
How I considered this complaint
I considered information provided by Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Councils must apply their transport policy when deciding entitlement to transport assistance. But they also have the discretion to consider exceptional circumstances. They must have a review or appeal process by which to do so.
The Council’s travel assistance policy for children and young people says: “2.1. Once young people with special educational needs and disabilities (SEND), reach 16 years old, the help councils must give them with transport to school or college changes. They do not automatically get the free school transport that younger children are entitled to.”
“2.2. Statutory guidance states that if someone asks a council for transport assistance for a young person over 16 years old it must assess their situation and ensure that its decision to provide transport or other assistance is a reasonable one, taking into account all relevant matters. Councils are expected to target support at those who need it most. ESCC is committed to providing travel assistance to post 16 students with SEND, when their SEND and circumstances mean that they could not otherwise access their placement.”
“6.3. In considering the eligibility of the student to receive an offer and what offer should be made, the officer will consider the following and/or any other relevant factors: Nature of the journey for the student/family for example, the distance, likely journey time, and complexity of the journey by road, public transport or on foot; whether the journey could be reasonably made if the student is accompanied.
Parent/carer/broader network available to accompany for example, the current commitments of the parent(s)/carer(s) and broader network; whether the student’s family or broader network is reasonably able to transport or accompany them, given all other factors. Parents/carers will be expected to prioritise transporting the student over other commitments such as (but not exclusively): Taking pre school aged children to nursery Voluntary work Undertaking work commitments that can reasonably be carried out at times other than at college start and end times; Unless doing so is unreasonable in all the circumstances.
Available suitable vehicle and/or disability benefits for example, whether the family has a suitable vehicle, which may include a Motability vehicle; whether the student is receiving PIP with component intended to support travel; any current social care support.
The students needs relating to travel for example, whether the student has complex needs, and/or requires a second person on transport; if independent travel is a realistic goal and whether this has been appropriate encouraged by the family.
Mrs X asked the Council to provide her daughter Y, who has special educational needs, with free transport to sixth form college. The Council refused. It said: Mr X is self-employed three days a week and can adapt his hours around the school pick up and drop off times Mr X can drop Y off at college on the way to work on Fridays If Mr X does not wish to adapt his hours the family appeared to have resources available to make other arrangements Mrs X advised she would be funding someone to be at home when Y returns from college. Mrs X could also arrange for the person to collect Y from college.
Mrs X appealed the Council’s decision. She said: Mr X could not adapt his hours. And since the initial application he has increased his hours to work in a Friday.
The person who is at home when Y returns from college cannot drive. Y had an Education Health and Care Plan and became tired during the walk to school. She said Y’s father could not help with transport to school because of work.
Their home is in a rural area The Council sought further information from Mrs X. It asked for permission to contact Mr X’s employer to verify that his work commitments are not flexible. Or Mr X could provide a copy of his contract showing hours were not flexible. Mrs X did not provide either. The Council again refused the decision for the same reasons.
Mrs X appealed to the Council’s Discretionary Transport Appeal Panel which is the final stage in the process.
The report to the Committee included all the information provided by Mrs X, noting: The school/college is named in the Y’s ECHP Y is attending her nearest suitable educational centre Y is not an independent traveller There is no public transport where they live Mrs X lives in London during the week Mr X is GP who cannot reasonably change his work pattern; and The after-school carer cannot collect Y as she does not drive.
The minutes of the meeting state the Committee considered whether it was reasonable for the family to arrange their own travel solution for Y. They noted Mrs X lives in London during the week and Mr X’s working commitments affect his ability to provide support. However, the Committee noted that work commitments and getting children to school are not unusual issues for families. It remarked that Mr X had demonstrated flexibility by changing his working hours since the original application was made. It decided not to exercise discretion as, having considered all the information available, it was reasonable for the family to make care arrangements for Y around work commitments, including travel arrangements to college.
Mrs X disagrees with the panel’s decision. But this is not evidence of fault. The Ombudsman is not an appeal body, and we cannot criticise a properly made decision or intervene to substitute an alternative view. As I explain in paragraph 3, we can only criticise a council’s decision if there was fault in the way it was reached.
The evidence available shows the panel reached a decision it was entitled to, taking into account the information it was presented with. Based on the evidence available, it is unlikely an investigation would find enough fault with the way the Council has acted to question the decisions reached. We will not therefore investigate Mrs X’s complaint.
Final decision
We will not investigate Mrs X’s complaint because we are unlikely to find fault in the way the Council considered her application for school transport and subsequent appeal.
Investigator's decision on behalf of the Ombudsman