The Ombudsman's final decision:
Summary: Mrs B complains the Council’s failure to provide suitable transport to school for her son, who has special educational needs, meant he was out of education for an extended period in 2018. The Ombudsman finds there was fault by the Council in this matter, leading to injustice for which a remedy has been agreed.
- The complainant, whom I shall call Mrs B, complains the Council stopped providing suitable school transport for her son, who has special educational needs, in February 2018, and he was out of education until November 2018.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I considered all the information provided by Mrs B about her complaint. I made written enquiries of the council and took account of the information it provided in response. I provided Mrs B and the Council with a draft of this decision and gave them the opportunity to comment on it. All comments received were considered.
What I found
- Local authorities are required to arrange free, suitable, home to school transport for children of compulsory school age who are ‘eligible’, to their nearest suitable qualifying school (section 508B of the Education Act (“EA”) 1996).
- Eligible children fall within four categories, set out in Schedule 35 EA 1996. These include children with special educational needs (SEN). If a child has SEN, a disability or mobility problems which means they cannot reasonably be expected to walk to school, then they are an 'eligible child' and are entitled to home to school transport, provided that the local authority has made no suitable arrangements for attendance at a nearer school or boarding accommodation.
- The government guidance, ‘Home to School Travel for Pupils Requiring Special Arrangements’ (2004), advises on particular issues affecting pupils with severe learning difficulties.
- To be suitable, travel arrangements must be safe and reasonably stress-free, to enable the child to arrive at school ready for a day of study.
- Councils can pay parents and carers of pupils with SEN to act as an escort or use the family car to transport them. The guidance says councils should set out in their policy when they will do this, and the amounts parents or carers are entitled to.
- The Council’s policy on home to school travel for children with SEN and disabilities says the following:
- In respect of accompaniment of pupils, the general expectation is that a child will be accompanied by a parent where necessary, unless there is an exceptional reason why it is not reasonable to expect the parent to do so.
- In respect of funding, when mileage or direct payments are made a funding plan will be agreed between the parent and the authority.
- The policy acknowledges that many parents find getting their children to and from school inconvenient and sometimes extremely difficult due to competing demands on time and domestic circumstances. It says that the policy does not seek to address these situations.
- The application of a transport policy in relation to a disabled young person engages the Equality Act 2010. Councils are required to have regard to the need to advance equality of opportunity to access education between persons with a disability and those without.
- Mrs B’s son, D, now aged 13, has autism and severe learning disabilities and is non-verbal. He displays behaviour including scratching, bolting, biting, kicking, spitting, and throwing objects. He has an Education, Health and Care (EHC) plan which names School X. He was attending this school in a taxi with an escort arranged by the Council. The journey time is around an hour and a half each way.
Problems with the transport
- On 15 November 2017 the school had to send a member of staff in the taxi with D as support due to concerns about getting D into the taxi and concerns about personnel in the taxi. On 23 November the school advised the Special Educational Needs (SEN) travel assistance coordinator at the Council by email of problems transporting D that morning. D had got out of his seat belt; bitten and scratched the escort; got into the front of the car where he hit and bit the driver and grabbed the steering wheel; and vomited covering himself, the seat and the windows with vomit. He has been settled for only about 5 mins of the journey and attempts to distract him had been unsuccessful. As an interim measure the Council agreed to a member of its staff travelling in the car as an extra escort. There were further reported problems on 5 and 6 December. At this time another child was sharing the transport with D.
- It seems that despite ongoing issues for D with the transport, he was able to continue attending school until half term in February 2018, when the firm providing the escort service gave notice that it would not be supporting D when school opened again after the break on 19 February 2018. It said it would no longer support D because of his challenging behaviour but also because escorts were unwilling to continue as their travelling time was too long.
- The Council’s brokerage department sent an email to the SEN travel assistance contract lead saying a few other providers could be considered at the present cost rate or D’s profile could be put out to tender that week and with a view to getting something in place at more reasonable rate by week beginning 19 February 2018. But in an internal email on 18 January the SEN travel assistance contract lead said escort support was ‘suspended until at least Tuesday next week’, with an update to follow in due course.
- On 19 January, D’s father Mr B asked the Council for information about travel arrangements for his son going forward. The Council confirmed D had been travelling in a safe and secure vehicle the size of which did not seem to be an issue, but given his behaviour over the past couple of weeks a decision had been made to suspend transport. A meeting was due to be held to discuss this and feedback would then be given.
- The Council says there were several meetings between it and D’s parents and that his parents agreed to travel with him for a limited period. The Council says it offered the family direct payments to cover the cost of them supporting him to and from school, plus funding for a breakfast and after school club for the family’s younger child, and that it also offered to support Mr B financially during days he was not working as a result of accompanying his son. The Council says the family was verbally offered £1,500 per month but that this was declined as they did not want to provide transport support long term. With regard to the family’s younger child, it is noted from other correspondence on file there was no after-school provision available for that child at his school, and the breakfast club only began at 8am when Mrs B would need it from 7.15am if she was going to get D to school herself, as she would have to leave the house at 7.20am. The Council has no documentary evidence to show an offer of direct payments was made or of any detail of such a proposal being discussed with D’s parents. The lack of records is fault.
- On 25 January 2018 Mrs B’s MP wrote to the Council. The MP noted that until recently D had shared a car with another pupil, but the confined space led D to lash out because he could not move his legs. A separate car was then provided, so he was not sharing with another pupil, and D’s family had been escorting him to school, but they could not continue to do so. On 7 February 2018 the MP wrote again, referring to an agreement that had been made for two escorts to attend to help D in getting to school from 5 February, although the car being provided was still small. Then in a further letter on 28 February the MP said Mrs B felt D needed a larger vehicle and daily travel with the same escorts, because he finds changes in escorting personnel upsetting.
- Replying to the MP the Council said the transport was a seven-seater vehicle and that escorts had changed several times due to D’s very challenging behaviours and had then been suspended for the same reason. It said D exhibited physically aggressive behaviour and on several occasions this had resulted in injuries to staff. It said it was not safe to transport him, and that the next size vehicle would be a ten-seater which would not be a cost-effective use of resources for one student and support staff. The Council said D’s father and brother supported his travel for a period and during this time no incidents were reported. It said that from 19 February 2018 it would continue to provide transport but not an escort.
- On 16 February the Council sent an email to another school, School Y, saying D’s place at School X would have to be terminated if his parents refused to act as escort, and asking if it could offer D a place. School Y said it had no capacity to accommodate D. But in any event, D has an EHC plan naming School X.
- On 20 February 2018 Mr B sent an email to the Council asking why transport was being sent for D without an escort and why the Council had put his name down as D’s escort without having communicated this to him. On 24 February the Council replied to Mr B saying it would keep him updated on progress. There was an exchange of emails between Mr B and the Council during February, but these do not evidence that the Council told the family beforehand that transport would be provided but without an escort. The Council says there would have been regular updates to the family by email and telephone, but this is not in evidence and it is clear from the family’s emails that they wanted information about what was happening. Further, even if the family had verbally offered to help for a very short term while matters were sorted, this should have been formalised and noted. The failure to document these matters was fault.
- In March 2018 D’s school wrote to the Council expressing concerns about the escort service having been suspended and saying that having D’s family members to escort him instead was not sustainable due to their other commitments. The school noted that D needs daily and consistent educational input to ensure he maintains developmental progress. Despite meetings from December 2017 no solutions had been forthcoming. A larger vehicle was felt by Beyond Autism and the family to be the most appropriate solution, to alleviate some of the sensory seeking behaviours D exhibited as he would not be confined to the small area at the back of the car. It was also noted Mrs B had sacrificed her own further education to look after D, a point the MP had also made.
- On 27 March, the SEN travel assistance contract lead asked the brokerage department to send a profile to providers for escorting support as a matter of urgency. The Council has failed to provide evidence of when this was done, but on 20 April one provider said it could meet the need for escorts at a cost. The Council then sought a risk assessment from the provider on 4 May, but this was not forthcoming. No progress was made towards securing escorted transport.
- On 1 August 2018, D’s case was discussed at a meeting at which the Council says it was decided outreach education needed to be considered. No minutes of that meeting have been provided. The Council wrote to Mrs B on 13 August offering outreach education at home to start in September 2018. Mrs B declined this. She explained that her son had been out of school for an extended period previously while efforts were made to secure him a suitable school place, and an outreach assessment then established his levels of need were too great for him to be taught at home, he needed to be in a school setting. He now had an appropriate school place, as set out in his EHC plan, and needed to attend that school.
- The Council also says that it made an offer of near full-time alternative provision at a centre led by Resources for Autism. It has provided conflicting information about when this happened. It has said that it was first offered at a meeting on 10 May, but there is no evidence to support this and elsewhere in its response to my enquiries the Council said the offer was made in September. On balance this is more likely, as there is a file note dated 17 September 2018 referring to a telephone call between the Council and Mrs B which noted her reluctance to take up the offer because she considered her son needed to be at his allocated school place and the alternative provision would be disruptive to his routine affecting his future education and well-being. There is no detail in the records about what information Mrs B was given about the placement: where it would be, the hours on offer, or how D would be expected to get there. Mrs B says she did not know which centre was being offered. The Council says that although the centre was closer to home than School X, D would still have had to have been supported in getting there by his parents and staff at the project who were prepared to assist.
- On 26 September 2018 D returned to school for one day. On 1 November the Council asked the school about providing support workers to travel with D for ‘a term or two’: the school agreed to support for a maximum of two weeks. The Council was then able to put satisfactory arrangements in place and D was able to resume full-time attendance from 5 November 2018.
- Because of the lack of suitable transport, D missed all school days between 19 February 2018 and the end of that school year on 25 July 2018. Except for 26 September 2018, he also missed all school days from the start of the new school year on 5 September to 2 November 2018.
- As set out at paragraph 8, statutory guidance says that travel arrangements must be reasonably stress-free if they are to be deemed suitable. It is clear that D was experiencing considerable difficulties coping with the long journey to and from school in the transport which was provided, and this was demonstrated by his behaviour and on occasion by physical sickness.
- It is clear that it is possible for D to cope with the journey if suitable transport is provided, and his successful attendance at school since November 2018 after the Council arranged what was necessary is evidence of this. However, between February 2018 and November 2018 although the Council has said it was continually looking at alternative support for D, this is not borne out by the evidence. It does not show that the Council was making every effort to resolve the transport issue without undue delay, and the failure to more promptly progress matters relating to D’s travel arrangements was fault.
- Further, the records do not evidence clear communications with D’s parents during this time about what was expected of them, about what support could be provided, about what efforts were being made to address the issue of D’s school transport, or about possible alternative provision at a specialist centre. That lack of clear communications, and lack of adequate record keeping, was fault.
- As a result of the lack of suitable travel arrangements, D missed some 27 weeks of school. In addition to the impact of this on D’s education, the faults identified above also meant that D’s family were also caused some avoidable distress, uncertainty and inconvenience.
- In recognition of the injustice described above, I recommended that within four weeks of the date of the decision on this complaint the Council:
- Issues Mrs B with a formal written apology;
- Pays £2,700 to be used for C’s benefit in the way Mrs C deems most appropriate;
- Pays Mrs C £500; and
- Takes action to consider any claim submitted by Mr D in respect of costs or losses he incurred in taking D to school.
- In addition, I recommended that within three months of the date of the decision on this complaint the Council:
- Undertakes a review of lessons learned from this complaint, then forms and applies an action plan to address the identified issues.
- I recommended that the Council should provide the Ombudsman with evidence to show these steps have been taken.
- The Council has agreed to all my recommendations.
- I have completed my investigation on the basis set out above.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we are sharing this decision with Ofsted.
Investigator's decision on behalf of the Ombudsman