Ombudsman and council at loggerheads over whether transport policy for adult learners with special educational needs is in line with the law

A row has broken out between the Local Government and Social Care Ombudsman and East Sussex County Council over whether the local authority's policy for providing home to college transport for young adults with special educational needs and disabilities (SEND) reflects what the law says.

The Ombudsman said an investigation had found problems with the council’s policy on home to school transport, “as it does not accurately reflect what the law says”.

However, a spokesperson for East Sussex said it was "extremely surprised" at the LGO's ruling because it was "the opposite of their previous finding that the wording of our policy is ‘in line with the law’. In 2018 the LGO considered another case and found no fault with our policy."

The Ombudsman's call for East Sussex to review the policy came following an investigation into its refusal to provide the complainants’ adult son with the full five days of travel to get to the college named in his Education, Health and Care (EHC) Plan.

The man, who has a moderate to severe learning disability, was 19 when he started his college placement.

According to the LGO, the council told the family it would only offer the man four days a week transport, and his parents could take him on the fifth, as they had been doing until their work patterns changed.

The family appealed the decision, but East Sussex’s position remained the same.

Concluding that the council's policy on home to school transport "does not accurately reflect what the law says", the LGO said this meant any appeal against its decision by parents was being looked at by a panel using that flawed policy.

The Ombudsman has recommended that East Sussex:

• apologise to the parents;
• pay them £300 for the uncertainty caused;
• review the cases of young adults (aged between 19 and 25) who have an EHC Plan naming a setting, and who were refused transport at appeal in 2018 and 2019. It should consider if these people have been similarly affected;
• revise its policy on post-16 SEND travel “and ensure it properly reflects the test set out in law, and the difference between the approaches it should be taking for young people aged between 16-18, and those over 19”.

Michael King, Local Government and Social Care Ombudsman, said: “Parents cannot be expected to ensure their adult children attend education, in the same way they have a legal obligation for younger children, so councils cannot insist they drive their young adults to college.

“The law gives councils a duty to provide free transport to people aged 19 or over, where they decide it is necessary. But in this case, the policy’s starting point suggested it is the family who are expected to provide transport.

“This meant the council may not have been looking at the family’s case on its own merits when making a decision about whether or not to provide full transport."

An East Sussex County Council spokesman said: “We are extremely surprised at this ruling by the Local Government and Social Care Ombudsman because it is the opposite of their previous finding that the wording of our policy is ‘in line with the law’. In 2018 the LGO considered another case and found no fault with our policy.

“It is concerning that we are being criticised for following a policy that the Ombudsman had previously confirmed as being lawful. The public and local authorities should be able to expect decisions of the LGO to be consistent.

“We don’t intend to comment on the individual circumstances of the case except to say that the family are receiving the transport that they applied for. The report will be now be considered by the  Governance Committee and Lead Member.”