Summary: The Ombudsman upholds Mr X’s complaint about the changes the Council made to his daughter’s transport to school. The Council did not properly assess the suitability of the vehicle. It also failed to respond to Mr X’s concerns about the passenger assistant. To remedy the injustice caused, the Council will carry out a thorough risk assessment and make a payment to Mr X and his daughter. It will also train its staff on the use of wheelchair restraint systems and carry out risk assessments for other children who travel to and from school in their wheelchair.

The complaint

1. Mr X complains the Council changed the arrangements for his daughter’s transport to school without assessing her needs, consulting with the family or giving any notice. Mr X says his daughter was transported in an unsuitable vehicle which did not keep her wheelchair secure. Mr X is also unhappy about the seating arrangement in the replacement vehicle. He says the passenger assistant cannot reach his daughter and therefore cannot help her when needed.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I have considered the complaint made by Mr X and the documents he provided.
5. I considered the Council’s comments about the complaint and the documents it provided in response to my enquiries.
6. I gave Mr X and the Council an opportunity to comment on my draft decision and I considered their responses.
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children's Services and Skills (Ofsted).

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What I found

Background

School transport

8. Section 508B of the Education Act 1996 sets out councils’ responsibilities for home to school transport. The Department for Education’s ‘Home-to-school travel and transport statutory guidance’ says councils must “make such travel arrangements as they consider necessary to facilitate attendance at school for eligible children.”
9. The guidance sets out which children are eligible for free transport. This includes children who live further away than statutory walking distance (two miles for children under eight; three miles for children between eight and 16). It also includes children who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem.
10. For travel arrangements to be suitable, journeys must be “safe and reasonably stress free, to enable the child to arrive to school ready for a day of study.”
11. The Council’s ‘Code of Conduct SEN Transport’ says it will provide eligible pupils with transport which best meets their needs. The Council says it will “take such steps as we consider necessary to satisfy ourselves of the suitability of both the provision and the provider staff.”
12. The code of conduct also says the Council will always tell parents when it makes changes to transport arrangements.

Transporting wheelchairs

13. The Council’s taxi licensing policy says taxis must have a wheelchair tie down and occupational restraint system (WTORS) fitted to secure the wheelchair and ensure the safety of the passenger.
14. The Medicines and Healthcare products Regulatory Agency (MHRA) published guidance on the safe use of occupied wheelchairs in road vehicles in March 2016. It suggests completing a comprehensive risk assessment considering the needs of the wheelchair user, including the type of transport they plan to use.
15. The MHRA recommends consulting the wheelchair’s instructions for use to confirm the safest way to use it occupied in a vehicle. This should clarify how to secure the wheelchair and passenger, and the correct anchorage points. It says if the instructions cannot be followed exactly, the risk assessment should show that risks have been identified and reduced as far as possible.

School transport appeals

16. The guidance sets out a recommended appeals procedure for councils to follow. It says, “The intention is to ensure a consistent approach across all local authorities, and to provide an impartial second stage, for those cases that are not resolved at the first stage.” Parents may challenge decisions about the transport arrangements offered, their child’s eligibility, the distance measurement from home to school and the safety of the route.
17. The Council’s ‘Home to School Travel Exceptions and Appeals Panel Terms of Reference’ say a parent can appeal to the panel when they believe the way transport is being provided is inappropriate for their child’s needs. Panels take place fortnightly. Parents can present information from third parties to support their case.
18. A head of service chairs the panel and senior officers from education access, special educational needs and finance also attend.

What happened

19. Mr X’s daughter, Z, attends a special school. The school is named in her Education, Health and Care Plan and is almost 20 miles away from her home. The journey there takes around 50 minutes.
20. Z has cerebral palsy. She uses a powered wheelchair. Mr X says Z’s disability causes difficulties with moving her arms and legs. She can sit upright for short periods but has poor balance and lacks core strength. She cannot adjust her seating position if she feels uncomfortable. She has limited strength in her arms and dexterity in her hands. She sometimes experiences difficulties with swallowing. Mr X says if Z feels uncomfortable or unwell, she needs to have access to somebody who can help her.
21. Z receives free transport to school. She previously travelled in a vehicle with another young person. Mr X says the passenger assistant who travelled with the children could sit alongside them.
22. The Council wrote to Mr and Mrs X at the beginning of August 2018 to say there would be a change to Z’s transport arrangements. It said the new provider would contact Mr and Mrs X to organise a smooth transition.
23. The Council said it held internal meetings to talk about changes to transport arrangements. It said its special educational needs and disabilities team said it had no concerns about Z travelling alone. The Council has not provided any written evidence of this meeting taking place.
24. There is no evidence of the Council assessing the suitability of the new vehicle to transport Z. In response to my enquiries, the Council said it is the responsibility of the transport provider to ensure the vehicle is suitable to transport children safely.
25. The Council has not provided any evidence of contact between the transport provider and Mr X to discuss the new arrangements for taking Z to school.
26. Mr X does not recall receiving the letter but says the previous driver told them there would be a change of provider. He says the new provider made contact shortly before the start of the new school term.
27. The new transport provider arrived to collect Z on the first day of the new school year. Mr X says Mrs X had to remind the driver to secure the front straps of the restraint system. Mr X says Z reported her chair was moving in the back of the car and she told the passenger assistant and her school. Mr X said there was limited space around Z’s wheelchair once she was in the taxi. The rear passenger seats had to be folded upright to accommodate the wheelchair.
28. Mr X said on each following morning he was present while Z boarded the taxi. He said the chair’s position was critical to enable the access ramp and rear door to close. When the restraint straps were slack, the ramp and door would close but the wheelchair would move. However, when the straps were tightened, the ramp and door would not close properly. Mr X also told the Council there were problems with the straps retracting.
29. Z told Mr X she felt isolated in the back of the taxi as the passenger assistant was sitting in front with the driver. Mr X said the transport provider did adjust the seating slightly so the assistant was closer to Z. However, this reduced the space around the wheelchair further making it more difficult to tighten the straps on the restraint system.
30. On 26 September, two Council officers attended Mr X’s home to watch Z getting in and out of the taxi. Mr X provided CCTV footage of this visit. There is no sound and the video does not give a complete view of the inside of the taxi. The video does show difficulties in securing the access ramp at the back of the taxi when Z’s wheelchair is in a certain position. It is not possible to see which restraints are attached to the wheelchair and how tight these are.
31. The next day, the same taxi arrived to take Z to school but one of the front anchoring belts failed again. The driver asked Mr X to take Z to school. Mr X says he reported this to one of the Council officers who visited the previous day. He says the officer told him the faulty belt was a cosmetic problem and the hooks on the belts were in the eyelets of the chair and this was acceptable. In response to my enquiries, the Council said the officer had a different recollection of this conversation but did not provide any further details.
32. The Council emailed Mr X to say its compliance officers had no concerns about Z’s transport. It did not say how they had reached this decision.
33. The transport provider offered an alternative vehicle which allowed Z’s wheelchair to be secured correctly. Mr X understood this to be at the transport provider’s discretion and was concerned it would revert to using the previous vehicle.
34. The Council asked a health professional from Z’s school consider if the new vehicle was more suitable. He said although the vehicles were very similar in size, the internal layout of the second vehicle gave more room for Z’s feet and either side of her wheelchair. He said he had watched Z being secured into the second vehicle and the driver had ensured the straps were tight. He felt the second vehicle was a more appropriate one for Z’s wheelchair.
35. In mid-October, after Mr X had made a formal complaint, the Council agreed to fund the second vehicle permanently. It did not communicate this decision to Mr X until the end of November. Z has travelled to and from school in this vehicle since the end of September.
36. Mr X remains concerned the passenger assistant sits in front of Z, in a different row of seats. As a result, he says the passenger assistant cannot help Z on the journey. The Council has been aware of this concern since the Ombudsman contacted it about this complaint at the end of February 2019. In response to my enquiries, the Council said the passenger assistant has sat in front of Z since the start of the school year in September 2018. It did not explain how it decided this met Z’s needs on the journey to school.

Analysis

Changes to school transport

37. The Council did write to Mr and Mrs X to say that Z’s transport provider would change but it did not provide specific information about changes to the vehicle. There is no evidence of a transition meeting between the provider and the family before the transport arrangements changed. The Council says it has now recognised this was an issue and has introduced a new process to ensure these meetings take place.
38. The Council failed to carry out a risk assessment of the new provider’s vehicle to ensure it could safely transport Z in her wheelchair. The Council is mistaken to say responsibility for the safety of the vehicle is with the transport provider. The duty is on the Council to make the arrangements and ensure their safety and its failure to do so was fault.
39. The Council did act in response to the concerns Mr X raised, by agreeing to provide an alternative vehicle. It sought advice from a health professional involved with Z about the suitability of the replacement vehicle to accommodate Z’s wheelchair. However, it delayed in confirming to Mr X that this was a permanent change.
40. The Council has failed to address the concerns raised by Mr X about where the passenger assistant sits. Mr X cannot be sure how Z would receive any help she needs on the journey to and from school. The Council has failed to properly assess this risk to ensure the transport is safe and suitable for Z and this was fault.

School transport appeals

41. The Council said a formal complaint overrides the transport exception and appeals process. However, the decision not to consider Mr X’s representations as an appeal meant he missed having his concerns considered by an independent panel. This is contrary to the guidance and the Council’s terms of reference. Based on the evidence available, this was fault.

Agreed action

42. Within one month of the Ombudsman’s final decision the Council will carry out a thorough risk assessment of Z’s transport to school. This will include input from Mr and Mrs X, the transport provider, the passenger assistant, and any other professionals with relevant expertise about Z’s needs. This assessment will consider whether the current vehicle is suitable and enables Z to reach school safely, with the necessary support from the passenger assistant. It will set out what steps will be taken to minimise any risks to Z. The Council will send a written record of the risk assessment to Mr and Mrs X.
43. If Mr and Mrs X consider the steps taken to minimise the risk to Z are not enough, the Council will offer them a right of appeal through the transport exceptions and appeals panel. The panel will be made up of officers who have had no previous involvement at any stage of this complaint. Mr and Mrs X retain the right to approach the Ombudsman at the end of the appeal process if they dispute the outcome.
44. Within one month of our final decision, to remedy the injustice caused, the Council will also:
• Apologise to Mr X and Z for the faults identified in this investigation.
• Pay £75 to Z for the three weeks she was travelling on transport which did not properly secure her wheelchair.
• Pay Z an additional £10 per week, calculated from 1 March 2019 onwards (excluding school holidays). This is to recognise the uncertainty caused by its failure to assess the risk of the passenger assistant not being able to reach her. Payments will continue until the risk assessment has been completed to Mr and Mrs X’s satisfaction, or the appeals process has ended.
• Pay £250 to Mr X for his time and trouble pursuing the complaint.
45. Within eight weeks of our final decision, the Council will:
• Provide training to its compliance officers on the correct use of wheelchair tie down and occupational restraint systems (WTORS).
• Ensure it is carrying out thorough risk assessments of journeys for children and young people who travel seated in their wheelchair. These assessments should be carried out before the transport begins and should include information about how often they will be reviewed.
• Ensure all children and young people who already receive home to school transport seated in their wheelchair have an up-to-date risk assessment in place which is shared with their parent or carer.

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Final decision

46. I uphold this complaint. Mr X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman