Summary: Mr B complains that the Council has failed to make suitable school transport arrangements for his son, who has ASD. The Ombudsman has discontinued the investigation into Mr B’s complaint because he intends to exercise a legal remedy by filing a claim of disability discrimination in court, and we consider that it would be reasonable for him to use that remedy.

The complaint

1. Mr B complains that the Council failed to make suitable school transport arrangements for his son C, who has autism spectrum disorder (ASD) and epilepsy.
2. He says the Council’s errors have resulted in the loss of the team that best met C’s needs. As a result, C is being transported to school without any special provision for his complex needs. This has affected C during his journeys to and from school, and has also caused Mr B considerable stress and anxiety and contributed to his own ill health.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

6. I have considered Mr B’s written complaint. I have made enquiries of the Council and considered its written response and supporting papers. I have taken into account Government Guidance and the relevant Council policies. I have also sent Mr B and the Council a draft decision and invited their comments.

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What I found

7. Mrs and Mrs B’s son, C, has ASD. He requires transport to the school he attends for children with learning disabilities (the School). Mr and Mrs B previously took C to school but, from 2012, the Council arranged transport to help C with his independence.
8. Mr B says there were problems with C’s transport arrangements, which were handled by a private taxi company until July 2015. In September 2015, another taxi company with a new driver and escort took over C’s transport, after which there was a clear reduction in incidents.
9. In September 2016, the transport team did not arrive on C’s first day back at school. The Council found another operator to provide transport. Mr B later complained that they were unable to get C to travel in the taxi. He felt that this was because new driver and escort were not sufficiently fluent in English to communicate with his son, taking into consideration his specific needs. Mr B was also concerned that the team was not properly trained to deal with C’s needs.
10. The Council arranged a further new driver and escort team which continued to the summer. Mr B remained concerned about the suitability of the current team and their training. He felt that those providing transport for C were not adhering to the recommendations in C’s Education, Health and Care Plan (EHCP).
11. This was discussed at an interim Annual Review for C in March 2017, but not followed up Mr B raised this with the Council in July. The Council apologised for the delay in following up. The Council then explained that it would not include any reference to transport in the EHCP as this was not an educational need.
12. Mr B declined to use the current transport team from September 2017 as he felt that they needed additional training. The Council found another operator to take over the transport, met the family at the end of October and agreed several measures in respect of C’s transport provision. In the event, the Council found some complications in relation to the proposed restraint training. It apologised for not keeping Mr B informed of developments and explained that it was looking to see if there was any suitable alternative training available.
13. Mr B now intends to take legal action against the Council because he does not consider that the Council has made reasonable adjustments for his son under the Equality Act 2010.
14. Mr B’s claim for disability discrimination and his complaint to the Ombudsman concern the same underlying issue - the suitability of the school transport arrangements. As the underlying issue is the same, it does not appear to me that the Ombudsman could consider Mr B’s complaints without touching on matters on which the judge will, directly or indirectly, adjudicate. The court action therefore would therefore constitute the exercise of an alternative remedy, which I consider it would be reasonable for him to use. So the Ombudsman has no jurisdiction to consider Mr B’s complaint further.

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Final decision

15. I have discontinued my investigation into Mr B’s complaint because he proposes to use an alternative remedy in court.

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Investigator's decision on behalf of the Ombudsman