Post-16 students and free school / college travel assistance

A further ombudsman’s report concerning the duty to provide free travel assistance to school / colleges etc has just been published.[1]

A March 2019 ombudsman’s report[2] concerning the same Council held that its post-16 transport policy was unlawful – not least because it suggested that support of this kind was only ‘discretionary’.

The Council’s criteria stated that a person ‘may be eligible’ for free education transport if they satisfied seven criteria, namely:

  1. The young person is under 25 years of age and they reside or are Looked After by the council;
  2. They have a special educational need or disability, which may be identified in an Education Health and Care Plan (EHCP), or other exceptional circumstances which impacts on their ability to use those public transport arrangements;
  3. The young person lives more than 3 miles away from their learning venue (by the shortest safe walking route), or they live less than 3 miles away;
  4. They have exhausted all available sources of support … ;[3]
  5. Their learning venue is the nearest that can meet the majority of their needs;
  6. Their study programme is full-time – equivalent to a minimum of 18 hours per week;
  7. If the young person is aged 19 or over, they have been in continuous education or training since before their 19 birthday. Unless they have an EHC plan issued.

As with many such policies (it appears) Councils seem to suggest that the provision of transport for post-16 students is simply a ‘discretion’.  This is wrong.  There is a duty to provide support from some students and even for students who don’t have a ‘right to support’ the Council’s discretion is one it that has to be taken seriously (ie it must take into account all relevant facts, not ‘fetter’ this discretion, reach a reasoned decision etc[4]).

Commenting on the Council’s policy the ombudsman stated that:

It was ‘poorly written and does not reflect the law that applies to school and college transport for young people, including young people with special educational needs, in post-compulsory education’.

It failed to ‘take account of the different legal powers and duties the Council owes to different groups of young people. Different duties apply to:

  • young people of sixth form age;
  • adult learners; and
  • adult learners with an Education, Health and Care (EHC) Plan’.

Criteria 2), which restricts transport to those young people for whom exceptional circumstances impact on their ability to use public transport, does not reflect the law. The law requires the Council to consider whether it is necessary to make transport arrangements to facilitate a young person’s attendance at college, not whether there are exceptional circumstances.

Criteria 3), does not make sense.

Criteria 5), the requirement a young person attends the nearest establishment that can meet ‘the majority of their needs’ would be unlawful if applied to a young person with an EHC Plan. The Council has a duty to arrange provision to meet all the assessed needs of a young person with an EHC Plan, not ‘the majority’. The Council also has a duty to promote choice for adults with EHC Plans. Requiring a student to attend the nearest college does not promote choice.

Criteria 6), which requires a young person to follow a full-time programme of study, has no legal basis.

The ombudsman held that the travel assistance policy for post-16 students (and the Council’s use of it) was maladministration and recommended (and the Council agreed) that the policy be re-written.

For an earlier ‘post’ that considers an ombudsman’s report concerning post-19 education transport costs – click here.

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[1] Complaint no 18 015 84 against Bexley LBC 30 May 2019.
[2] Complaint no 18 012 904 against Bexley LBC 12 March 2019.
[3] A separate document listed travel assistance offered by external organisations.
[4] See generally L Clements Accessing Public Services Toolkit (Cerebra 2017 pages 24 and 28) and Staffordshire County Council v JM [2016] UKUT 246 (AAC) para 35 – 36.