The Ombudsman's final decision:
Summary: the Council did not take action to ensure that transport provided to Mr F’s disabled child in June and July 2018 met his identified special needs. This amounts to fault. The Council will take action to recognise the avoidable distress this caused to Mr F and his son by making a payment of £800.
- The complainant, whom I shall refer to as Mr F, complains that the Council has failed to take appropriate action to recognise and prevent future recurrence of inadequate and inappropriate home to school transport provided for his disabled son, Y. In particular he complains that:
- whilst the Council accepts a number of shortcomings in the service, it failed to offer adequate payment to recognise the impact of the accepted fault including the extreme distress this caused Y at the time and which continues to have an impact on him now, or to recognise the upset, distress and frustration the failings caused Y’s parents in having to try to resolve the matter and in caring for Y during such an upsetting time;
- it failed to take action to prevent such poor service being provided in future both to Y and other disabled children;
- it failed to apologise adequately; and
- it failed to properly commit to providing suitable transport that is fully appropriate to Y in future.
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 discussed the complaint with Mr and Mrs F and considered the written information provided with the complaint. I made written enquiries of the Council and considered all the information before reaching a draft decision on the complaint.
- I gave the Council and Mr F the opportunity to comment on my draft decision and took account of their responses before reaching a final decision on the complaint.
- 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 will share this decision with Ofsted.
What I found
- Councils have a duty to provide free home to school transport for pupils of compulsory school age in certain circumstances including where they cannot be expected to walk to school because of their special educational needs, disability or mobility problems.
- The relevant Council transport policy says that a passenger assistant is normally provided where there are more than five children with EHC plans travelling in one vehicle.
- A child with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s needs and what arrangements should be made to meet them.
- Councils are required to have a Local Authority Designated Officer (LADO) who must be contacted where there is an allegation that someone who works with children has harmed them in some way.
- Safeguarding is the term used to describe action taken by a council to promote the welfare of children and protect them from harm. Councils have a duty to make enquiries where it becomes aware a child is suspected of suffering harm.
- The Council has a transport section which takes responsibility for arranging transport for those children for whom the Council agrees to provide transport. It negotiates and agrees contracts with transport providers.
- Y is now around 10 years old. He has a diagnosed autistic spectrum disorder (ASD) and a Sensory Processing Disorder (SPD). The SPD was not diagnosed until 2017 according to the Council’s records. He has an Education, Health and Social Care Plan. The most recent final plan is dated June 2018.
- One of the effects of the SPD on Y is that he is highly sensitive and distressed by the sensations caused by having windows open on transport.
- Y attends a special needs school and the Council has provided free home to school transport for him for several years.
- The Council says that Y’s original transport order form from 2011/2012 stated the reason Y needed assistance was for “care and supervision”. There was no detailed information about his needs that was provided to the transport section at that time.
- In mid-June 2018 Y’s social worker emailed the passenger transport section of the Council to emphasise the impact of his SPD on him and to say that the sensations caused by having a window open in the transport caused Y extreme distress as a result of his SPD. She stated she was aware that Mr and Mrs F and staff at Y’s school had expressed concerns about the open window on the transport several times but that it was still being opened. Mr and Mrs F have stated (and this was investigated as part of a complaint they made to the Council) that the transport provider was told of Y’s SPD and the open windows in late Summer of 2017 and that the social worker contacted the transport section at the Council about it in June 2018.
- In early July 2018 Mrs F told the Council that she had put a recording device in Y’s bag and had recorded very concerning verbally abusive and bullying behaviour directed towards him and other children using the transport by the transport driver and the passenger assistant. The complaint investigation also noted that Mr and Mrs F stated that the recording they obtained of Y’s treatment by the driver and the escort confirmed they were aware that Y did not like having the window open on the transport so it was clear they were aware of this but did not act on it. As a result of these concerns a safeguarding referral was made and a referral to the Local Authority Designated Officer (LADO). The driver and the escort were suspended form their positions due to the concerns and were later issued with a police caution.
- The transport provider was suspended following the concerns and alternative providers found for Y. By this time the Council’s transport team was clearly aware of Y’s SPD and of his consequent need for transport that had air conditioning and therefore no open windows.
- Immediately following the suspension of the transport provider a new company provided Y with emergency temporary transport for two days and was then replaced by a longer term third cab company after that. Mr and Mrs F said that the driver used by the emergency two-day cover told them he was unaware of Y’s need for not having windows open in the cab. Mrs F said that the driver for the longer term cab company then given the contract was also unaware of Y’s need not to have windows open and the Council’s later investigation of the complaint concluded that the Council had not required the cars being used by this company to have air conditioning (thus no need to open windows). A senior officer in the transport team told the officer who investigated the complaint to the Council that it was only when he spoke directly to Mrs F in July 2018 that he properly understood Y’s needs.
- The third company provided a further vehicle which still did not have functioning air conditioning and a jammed open window which was also unsuitable to Y’s needs. At this point the Council instructed a further cab company to provide Y’s transport. The Council upheld the complaint about the provision of a further cab without proper air conditioning.
- Mr and Mrs F were very happy with the fourth cab company that was put in place to provide Y’s transport. This was an individual cab unlike shared transport provided before this. Mr and Mrs F asked for this company to be used from the beginning of the new term in September 2018 but were told that the contract was out for tender again and that they would have to appeal if they wanted to retain that company as it was providing individual transport. They did appeal and individual transport was approved for Y from September 2018.
- In March 2019 the Council arranged a meeting to discuss Y’s transport and his needs around this. It was attended by Mr and Mrs F as well as Y’s social worker, officers from the transport team and the driver and taxi escort. The notes indicate the discussion provided detailed information about Y’s needs.
- At Mrs F’s request a fifth company was engaged to provide Y’s transport from April 2019. The Council has a contract with this company to provide Y’s transport. The contract clearly specifies that a vehicle with air conditioning is required due to Y’s particular needs as he cannot travel with a car window open. The contract with this fifth company notes the contract runs until 2024 at the latest.
Council’s consideration of Mr and Mrs F’s complaint
- Mr F initially complained to the leader of the Council about Y’s transport arrangements in July 2018. The Council provided a response in August 2018.
- Mr and Mrs F were dissatisfied with the response and pursued the matter to the second stage of the Council’s corporate complaints procedure which involved investigation by an independent investigator.
- The Council accepted that the original transport order form had contained little information about Y’s needs but also recognised that Y’s social worker and also staff at his school had raised the concerns about the open window and the effect of this on Y due to his SPD.
- The investigation by the Council concluded that whilst Mr and Mrs F had told the cab company the Council contracted to provide transport for Y about his SPD and the open windows the Council’s transport team did not know this until June 2018 when the social worker advised them.
- The Council’s investigation of the complaint about the failure to pass on information about Y’s needs to the replacement cab providers in July 2018 was upheld. It partially upheld a complaint that on the first day the third longer term company started providing transport in July 2018 it provided a vehicle that did not have air conditioning and the driver ended up opening windows as it was a very hot day and the vehicle with the children in it got stuck in heavy traffic so Y was in the cab for a long time. The reason for the lack of air conditioning was that the usual vehicle was being repaired and the contract had been arranged with little notice and so the usual vehicle was not ready for the start of the contract. The Council partially upheld the complaint about this.
- Adjudication of the complaint findings at stage 2 of the complaints process was undertaken by a senior council officer following the stage 2 investigation and report resulted in the Council offering Mr and Mrs F £50 to recognise the time and trouble they were caused by pursuing their complaint and a further £75 to recognise the distress caused.
- In its comments to me the Council has confirmed it does not provide the transport team with a copy of a child’s Education, Health and Social Care Plan for reasons of confidentiality. It also states that in June 2018 it introduced a new transport form for children with special needs. This is for parents to complete once transport provision has been agreed and enables parents to highlight their child’s travel needs so that these may either be included in the tender process if appropriate or passed on to the provider by email later on if that is more appropriate. The Council says it is also happy to arrange meetings involving the provider and parents if needed such as that it arranged regarding Y in March 2019.
Was the Council at fault and did this cause injustice?
- The Council accepted some fault as a result of its stage 2 investigation of the complaint. Essentially it accepted that:
- it was partially at fault in having poor systems in place for providing transport providers with information about children’s needs but stated this had been reviewed in June 2018 and has therefore improved;
- the vetting procedure used by the transport section for drivers and passenger assistants was not inadequate and had been completed in relation to the driver and passenger assistant who went on to verbally abuse Y and other children on the transport;
- transport providers in Summer 2018 were not provided with adequate information about Y’s needs. The adjudicating officer apologised for this in his letter to Mr and Mrs F;
- it partially upheld the complaint about the provision of an unacceptable vehicle on a hot day when the usual provider’s vehicle was being repaired;
- provision of a further vehicle that did not have air conditioning and had a widow jammed open. The adjudicating officer apologised for this; and
- it offered a total of £125 to Mr and Mrs F to recognise the time and trouble they were caused in making a complaint and the distress caused.
- I consider the Council was at fault in failing to ensure transport provision that met Y’s needs from the time that the transport team was clearly advised that Y could not travel in a car/bus that had an open window. Even after being fully aware of this and the removal of the transport as a result of the evidence provided by Mrs F in July 2018, the Council failed to properly ensure that two replacement providers provided transport that had air conditioning and so windows were opened again. Mr and Mrs F say that Y was caused extreme distress by the failure to keep windows closed in the transport at the time and say it continues to have an impact on him now. They also say this situation caused them upset, distress and frustration both in having to try to resolve the matter and in caring for Y during such an upsetting time. There does not seem to be any dispute from Council officials that having the windows open did cause Y extreme distress. From the time that they reported their concerns to the Council in June regarding the open windows until the time that the matter was apparently resolved when the fourth taxi company was appointed in July, I consider that the distress caused to Y was entirely avoidable. I also accept that the knowledge of this and having to repeatedly reiterate their concerns to the Council before they were resolved also caused Mr and Mrs F avoidable distress.
- I recognise that Mr and Mrs F say that they told the transport provider about the SPD in 2017 and therefore that windows could not be opened in the transport, but I have no evidence that the Council was made aware of this until June 2018. As I am considering fault by the Council I do not therefore have grounds to consider the Council could be held to be at fault until June 2018.
- I recognise that the evidence Mrs F obtained on the recording in Y’s backpack was distressing but it appears the Council dealt with this promptly and appropriately once it received this evidence and the investigation at stage 2 by the Council confirmed the vetting process for the driver and the passenger assistant had been properly executed.
- I consider the Council has taken action to deal with the poor service identified. It has now provided information to the taxi firm about Y’s needs and this is detailed in the contract document agreed with the new provider. In relation to the service provided to other disabled children, the Council says it reviewed its practice in June 2018 as described and that it will also arrange meetings such as that it arranged regarding Y in March 2019.
- The Council apologised for those complaints it fully upheld and for those parts that were partially upheld. I consider these apologies are sufficient to acknowledge the parts of the complaint that were upheld.
- Mr and Mrs F do not consider the Council has made a proper commitment to providing suitable transport that is fully appropriate to Y’s needs in future. I consider the changes it has made to the process which includes parents bringing particular issues to the attention of the transport team so that these may be included in the tendering and contract is evidence of a commitment to providing appropriate transport in the future for Y and for others. I have seen evidence that demonstrates it has done this in relation to Y. The Council has negotiated contracts with companies and providers that the family had identified and the current contract quotes the period of the contract lasting until 2024 which is a reasonably long period. The Council cannot prevent the contractor from withdrawing from the contract where there is provision for it to do so and it may, for other reasons, need to renegotiate or alter arrangements but I am satisfied the Council has taken appropriate action to arrange long term settled transport provision for Y.
- I considered our guidance in relation to distress payments to recognise both the distress caused to Y and to his parents by the fault accepted by the Council. The Council will pay Mr and Mrs F £500 to recognise the avoidable distress caused to Y in June and July 2018. To recognise their own frustration, outrage and upset the Council will pay Mr and Mrs F an additional £300.
- The Council will complete the agreed action within one month of the date of this final decision statement.
- The Council did not take action to ensure that transport provided to Y in June and July 2018 met his identified special needs and this amounts to fault. The Council will take the agreed detailed above to recognise the avoidable injustice this caused.
Investigator's decision on behalf of the Ombudsman