Essex County Council at fault for its school transport policy

Decision Date: 20th January 2020

What Happened

Mr X complained on behalf of his adult learner son Mr A, who had severe disabilities.

Mr A started at a new college in September 2017, when he was 19 years old.

Attending college five days a week was on his EHC plan. The Council provided Mr A with transport to the college for four days a week, and his parents did the fifth voluntarily (their travel costs were not funded by the council).

As Mr and Mrs X’s work commitments changed, they applied for the Council to start taking Mr A to college all five days for the next academic year. The Council considered the matter, but in September 2018 the panel decided it was a reasonable expectation for Mr A’s parents to take him to college once a week.

The Council said the decision was reached in line with the criteria outlined in the Council’s post-19 transport policy 2017. Effectively it told Mr and Mrs X that the expectation was for families to take responsibility for transport to college for someone in post-19 education.

Mr and Mrs X appealed the Council’s decision on the basis there was no duty on parents to accompany adult learners to their post-19 education placement. Mr and Mrs X also said they had no parental responsibility for Mr A and no legal obligation to ensure Mr A attended his college.

The Appeal Panel declined to supply the extra day of free transport to Mr A. They referenced a previous LGO decision, highlighted that both Mr and Mrs X had flexible working schedules, and said that it was reasonable for them to organise, or even pay for someone to take Mr A to college one day a week.

What was found

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) 7. A council has a duty to secure the specified special educational provision in the EHC plan for the young adult. (The Children and Families Act 2014, section 42) 8. 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)).

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)

The Council’s policy in place at the time of Mr X’s appeal was the August 2017 Travel assistance for post-19 young people with special educational needs and disabilities (SEND). It stated that families will be expected to provide transport, and that students will only be eligible for travel assistance in the ‘most exceptional cases’.

The LGO found the Council at fault as it appeared to fetter its discretion by reference to this policy. The LGO stated that the starting point of the SEND policy should be the ‘range of resources available to the young person to support them to travel to their educational placement’. However the Council used as the starting point that the family was expected to provide transport in almost all cases. The LGO considered this fault, because the Council ‘should be considering each case on its own merits’.

[We would have to say that it’s more than that; it’s an unlawful policy in and of itself, not just one that has firmed up into a presumption or a rule!]

The Council was also at fault, as it set out the wrong test in its policy. The law uses the word ‘necessary’, in the test to determine eligibility. However the SEND policy used the word ‘exceptional’. The LGO said that the words were extremely different, despite the law being very specific. Therefore the Council was at fault. [Well the LGO got there in the end, by this means!].

Considering this, the LGO said that any appeal would have been ‘fundamentally flawed’, as it would have been considering the incorrect policy, due to the faults in its wording.

The LGO considered that the fault did cause an injustice to Mr and Mrs X, because there was uncertainty in what the Appeal Panels decision could or would have been, if it had not been infected by incorrect correct policy. “This means any appeal against the council’s decision by parents is being looked at by a panel using that flawed policy.”

The Council implemented a new policy in January 2019. In addition to the faults the LGO highlighted above, the January 2019 policy also stated that local authorities do not have a statutory duty to provide free travel support for young people of sixth form age and over.

The LGO said that this is not accurate, because if the Council decides transport is ‘necessary’ it does have a statutory duty to provide it free of charge for learners with an EHCP aged 19 and over. This was also fault.

To remedy the injustice caused the LGO recommended the Council pay Mr and Mrs X £300, review its policy on post 16 (to 25) SEND travel (2019) and revise it properly to reflect the test set out in law. The policy should be clear that the Council has a statutory duty to provide transport to post-19 learners if it is considered ‘necessary’, not exceptional.

Previous LGO decision

The Council disagreed with the findings from this report. It said that a previous Ombudsman’s decision had endorsed its policy and stated that it was in line with the law.

The LGO stated ‘the previous decision does not set a precedent and further consideration of the policy has led us to change our view’.

Points for the public, service users, families, education officers, etc.

We have to say that this complaint reveals breathtaking arrogance and legal illiteracy on the part of the council.

The Council said it was entitled to take the view that travel support should only be provided in the most exceptional cases. Arguably, the test of ‘necessity’ can be a high threshold to pass. However given that the words ‘exceptional’ and ‘necessary’ have two clearly different meanings, it showed that the Council’s policy was not accurately reflecting the law.

The council’s stance is hopeless in relation to the statutory context, which its legal team should have been able to advise members about. We mean by this, that in welfare law, the definition of necessary – in terms of the old NHSCCA 1990, references in education law, and references in Disabled Facilities Grants law, there is no question as to the meaning – it’s necessary in the professional judgment of the individual practitioner, NOT exceptional at all. We see a similar longing for not ever having to admit of any useful discretion in the context of letting people be paid even if close relatives in the same household out of a direct payment. The word is necessary, against a background of it not normally being permitted. Necessary does not have to be exceptional. And it won’t be after a few more months of coronavirus, to our minds.

The LGO even went on to find fault in the Council’s 2019 policy, despite it not being applicable in this case.

The LGO went into extensive detail as to why it had changed its views. It had a problem with the wording of the 2019 policy, it stated; ‘our view remains that the wording of the policy can leave the reader with the impression the family will provide transport in practically all cases.’

This is encouraging to see, as it demonstrates that the LGO is taking into account how accessible and understandable its policy is to everyday people. It is crucial that council policy be accessible and understandable, and this report supports that aim.

The Council said there were five appeals for the academic year 2018/2019 and seven appeals for 2019/2020. The Council said all but one of the young adults are still attending their college. The Council said the fact they were still attending clearly demonstrates that school transport is not necessary to facilitate their attendance. The Council said there was therefore no point in inviting them to reapply for travel assistance.

One sees the same sort of thing in adult social care: we won’t give people stuff that they used to have, and when they survive, we will say “There you go, it wasn’t needed in the first place.” That’s not the duty, however. It’s about reducing the impact to something below ‘signifcant’ under the Care Act…

The LGO said this to that: “At this stage, we do not know how each young adult has been affected. For example, they may be missing certain days, arriving late or having to leave early, or incurring considerable expenses. Therefore, they may be suffering an injustice as a result of the Council’s decision to refuse transport support. For this reason, our recommendation remains unchanged.”

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The full Local Government Ombudsman report of Essex County Council’s actions can be found here