London Borough of Southwark (18 016 991)

Category : Education > School transport

Decision : Upheld

Decision date : 04 Sep 2019

The Ombudsman's final decision:

Summary: Ms X complained the Council delayed reviewing the suitability of the school transport it provided for her child who has special educational needs. The Ombudsman finds the Council at fault for not addressing soon enough the full extent of the reported problems with the school transport. The fault led to avoidable uncertainty, distress and expense for Ms X and both of her children. The Council has made a further offer to reimburse Ms X for expenses she incurred taking her child to school. The Council has also agreed to pay Ms X £300 to acknowledge the uncertainty and distress caused by the Council’s fault.

The complaint

  1. Ms X has two children with special educational needs. She complained the Council delayed reviewing the suitability of the school transport it provided one of her children, B, who attends a special school. She said the Council then delayed changing the provision. She said as a result:
    • B was caused distress using the transport and ended up missing school;
    • Ms X was caused stress and financial difficulty when B missed school and when she took B to school herself; and
    • Her other child, C, was caused distress when having to go with Ms X and B when Ms X took B to school.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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)

Back to top

How I considered this complaint

  1. I have considered information from:
    • Ms X’s complaint and from a telephone conversation with her; and
    • The Council’s response to my enquiries.
  2. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I have considered their comments before making this final decision.

Back to top

What I found

  1. Section 508B of the Education Act 1996 says a local authority must make suitable and free travel arrangements for an eligible child in their area to facilitate the child’s attendance at school.

B’s transfer to a special school

  1. B has severe and complex autism and challenging behaviour. In February 2018 the Council transferred B from a local mainstream primary school to a special school over seven miles from B’s home. B started part time and moved to full time by mid-June 2018. The Council funded B’s transport. To start with, Ms X took B. This arrangement was changed in phases so that, by the time B was full time, B travelled to and from school on a shared school bus.

Events September – December 2018

  1. The Council’s transport contractor reported B would not use the seat belt on the bus. In September 2018 the contractor asked Ms X to agree to B using a harness instead. She signed her agreement to this.
  2. B’s school emailed the Council on 10 October with concerns about B’s transport. The school asked that B have a 1:1 vehicle with escort. The school said the combination of pupils on B’s bus meant the journey was not safe for the pupils or the passenger assistants. It said B had been aggressive towards pupils and staff and had refused to wear the harness. The time spent on getting the harness on for either journey, to or from school, was distressing and challenging for all concerned. B was upset when starting school and upset in the afternoon anticipating the journey home. The school had paid for a taxi home on 9 October because of an incident on the way in.
  3. The Council asked for incident reports from the driver and passenger assistants about what happened on 9 October. The reports referred to a history of B’s challenging behaviour towards the other pupils on the bus. They referred to the bus having to stop several times on journeys when B took off the seatbelt and/or refused to wear the harness. There were delays caused by B’s reluctance to get on the bus. On 9 October the bus had had to return to B’s home for Ms X to calm B down after struggling to get out of the harness. The bus was late to school.
  4. The Council responded by asking its contractor to carry out a risk assessment which was done on 12 October. I have not seen this assessment. The Council says its contractor destroyed it because it had been superseded by a newer one. The Council says the assessment’s only finding was that, for B’s own safety and the safety of other passengers, B needed to travel wearing a harness. The Council says it did not consider B needed to be transported separately and a harness could not be used in a taxi. It did not report the result to the school or to Ms X.
  5. At the end of the month the school chased up its request. It said the previous day the bus had had to stop five times on the way home as B took off the seatbelt and refused to wear the harness. The school stressed B found it difficult to build rapport with other pupils and staff. It said a change of bus and driver may have contributed to the problems. The Council told the school it would arrange a second risk assessment.
  6. On 8 November the contractor carried out an assessment of B’s bus journey to school. The assessment showed B used the harness on the way to school. Other pupils had some problems during the journey but B had none. The Council did not report the result to the school or to Ms X.
  7. On 22 November the school emailed the Council to follow up on the second assessment. The school said the day before there had been the third incident when B had been aggressive with the passenger assistants. The school said the bus had been alternating between use of seatbelt and harness, depending on which B was prepared to use. It said a member of school staff had witnessed the passenger assistants finding it difficult to talk to B in a supportive way. That day the school had sent B home in a taxi with two members of school staff. The school anticipated B would refuse to use the harness again and school staff would not be able to physically support B into it.
  8. Ms X says she and C took B into school on two days in late November.
  9. In late November the Council discussed the situation with Ms X and agreed to try not using the harness. B travelled successfully for two days but on 28 November B refused to get up for school or get on the bus. B refused to travel on the bus for several days. On 4 December 2018 the contractor’s staff reported incidents of B being aggressive while going to school in a taxi and on the return journey B made on the school bus.
  10. On 5 December the contractor carried out a third risk assessment of B’s bus journey to school. The assessor’s report referred to a history of verbal and physical abuse by B on the bus. It said on this journey B verbally and physically abused another pupil and the two passenger assistants. The bus had to stop three times when B took off the seat belt. The report concluded the hazards of B travelling on the bus were “considerable,” involving risks to both B and the other passengers. It said the parties concerned were to discuss, assess and identify alternative travel arrangements for B.
  11. On 5 December the Council arranged for B to travel home by taxi. B did not use the bus again. B did not go to school again until 19 December.
  12. On 10 December the Council asked B’s school to organise and pay for a taxi so Ms X could take Y to school. The Council intended this to be while it began to arrange a direct payment so Ms X could arrange the taxi herself. The Council discussed this with Ms X but Ms X would not agree. Ms X told me this was because she would have to have taken C as well and C could not handle four long car journeys a day. She told the Council she would not accept this offer because the Council was failing to meet its legal obligations. The Council says it offered to meet Ms X to discuss what could be done but Ms X refused to deal with the Council any more. Ms X sought advice from a solicitor who wrote to the Council on 13 December 2018.
  13. The Council also asked the school to extend B’s behaviour plan to include consideration of Y’s transport. The school said it would not do this but on
    14 December it did agree to pay for a taxi and invoice the Council. Ms X did not make use of this.
  14. On 19 December Ms X says she and C took B into school again. The same day Ms X and her solicitor met officers of the Council to agree a way forward. The Council agreed to work with an alternative transport contractor to provide a car and passenger assistant for B for the next term. For the last two days of the old term the Council arranged for the alternative contractor to take B, Ms X and C to school and back.
  15. B missed 13 days of school at the end of November and in December when he could not travel on the bus and Ms X was unable to take him herself.
  16. The Council stressed with the new contractor the need for the new passenger assistant to build up a rapport with B. That has happened and Ms X and B have been happy with the new arrangements from January 2019 onwards.

The Council’s views

  1. In its complaints procedure the Council accepted it took no immediate action to change B’s school transport. It said an immediate change would not necessarily have been the right thing to do for a young person with B’s needs for routine and for changes to be well prepared for. It said it was reasonable for the Council to allow a period of observation and consideration of what actions of lesser impact might be available.
  2. The Council says early in 2019 it offered to reimburse Ms X with out of pocket expenses she incurred taking B to school herself if she provided evidence of such expenses. Ms X did not provide any evidence. In response to my enquiries the Council said it will consider whatever evidence or explanation Ms X can provide to substantiate the costs and would check with the school’s records to validate
    Ms X’s request. After receiving the draft of this decision the Council wrote to Ms X to explain this.

Findings

  1. B had difficulties using the school bus although the difficulties did not necessarily cause problems on every journey. But the scale of difficulties when they did occur were significant and put B and the other passengers on the bus at risk of harm and distress.
  2. The Council’s transport contractor acts on behalf of the Council. In carrying out its contract, any fault by the contractor is fault by the Council. Before B’s school contacted the Council on 10 October 2018 the Council’s contractor tried to transport B safely and tried to address problems by using a harness for B. I do not find fault with the contractor’s initial approach.
  3. On 10 October the school requested alternative transport for B and was clear there was already a history of problems which affected B, other pupils and the passenger assistants. The Council was at fault for not addressing soon enough the full extent of the problems the school reported.
  4. There is no evidence of the first risk assessment the Council required its contractor to undertake. That is fault by the contractor and therefore by the Council. The contractor should have kept that assessment to build up a picture of what had been reported as a serious situation.
  5. The Council accepted the outcome of two risk assessments, a month apart, which it says, together, only came up with the view that B needed to wear a harness. That finding was not enough given the problems the school reported were about the difficulties B had using either seat belt or harness, plus B’s difficulties interacting with the other people on the bus. No monitoring was put in place to check how the use of the harness was going or how use of this bus transport was affecting B’s wellbeing and that of the other people on the bus.
  6. The Council was at fault to let the situation drift and further serious incidents take place before a third risk assessment confirmed the behaviour and disruption the school had reported in October and November. Had the Council considered fully each part of the school’s description of B’s problems on the bus, and put monitoring in place, the full picture would have been clearer earlier. That should have led to an earlier meeting with Ms X to discuss what was needed before B started to miss much school and before Ms X felt she needed to get legal help to sort out the transport problems. Earlier discussion with Ms X would also have avoided the Council offering an alternative which involved Ms X having to take C to B’s school and back twice a day.
  7. Had the Council had acted properly earlier I cannot be sure that the current successful alternative would have been in place any earlier. But a successful interim arrangement may have been achieved. Overall the Council’s fault caused Ms X, B and C some avoidable uncertainty, distress and expense.

Agreed action

  1. The Council has agreed the following:
    • Within two weeks of this decision it will write again to Ms X asking her to request reimbursement for her travel expenses for taking B to school in November and December 2018, providing whatever evidence or explanation she can to substantiate the costs. The Council will decide on the expenses it will reimburse within a month of receiving a request from Ms X.
    • Within a month of this decision the Council will pay Ms X £300 to acknowledge the avoidable uncertainty and distress caused to her, B and C by its faults.

Back to top

Final decision

  1. I have now completed my investigation because the Council’s actions will remedy the injustice caused by its fault.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings