In a recent and important report, the ombudsman has held that the transport needs of an adult in education are relevant considerations when assessing his (and his carer’s) social care needs. Citing the Statutory Guidance to the Care Act 2014 (para 16.22) he noted that local authorities should consider the importance of full-time programmes for young people aged 16 and over to ‘allow parents to remain in employment full time’.
The ombudsman also held that the council’s transport policy for adults was unlawful. The report is impressive in setting out with considerable clarity the relevant education and social care law, namely:
- 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.
- When a council finds it is “necessary” to provide transport for the young adult under section 508F, then the transport must be free of charge.
- If a local authority does not consider it “necessary” to provide transport under section 508F it may still choose to pay some or all of the reasonable travel costs under section 508F(8) or as social care provision under the Care Act.
As the report makes clear, from the outset, the Council made it difficult for the parent to apply for transport funding for her adult son. All manner of devices to were deployed to deflect the claim – for example: by not providing an application form; by stating that her request for help was not a ‘formal application for funding’; by not admitting to any appeals process; by misstating what the law required; and by asking her for details of her income (which was irrelevant as her son was an adult).
The council’s policy was that ‘save for exceptional circumstances’ it would not provide post-19 transport funding – and that it was the parent’s responsibility to arrange transport for her son. As the ombudsman’s report noted (at para 104):
The law says that if the Council considers it is necessary for an adult who is over 19 to have transport provision then this must be provided. It does not say that it will only do so if there are exceptional or special circumstances, which is what the Council’s policy currently says. The language the Council uses in its policy gives the impression a person’s circumstances must be such that he/she not only ‘needs’ assistance, but their circumstances are exceptional, which indicates they must be different to other people who have similar needs. That is not what the law says. This is fault.