Summary: The Ombudsman finds fault with the way the Council handled Miss B’s appeal about changes to child C’s travel assistance. The agreed actions remedy the injustice caused to Miss B.

The complaint

1. Miss B complains about the way the Council made changes to travel assistance for her son, Child C. She says:
• the Council failed to properly consider and consult on the proposed changes;
• the changes were financially motivated and not in the best interests of C;
• the new travel plan did not meet C’s needs; and
• the Council failed to notify her of the appeal procedure and handle her complaint correctly.
2. Miss B says the Council’s actions caused her unnecessary distress and meant C’s travel plan did not meet his needs.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)

Summary of relevant guidance

Statutory guidance post 16 transport to education and training

6. The Council should satisfy itself that it has made the transport arrangements or arrangements for financial support necessary to facilitate young people’s participation in education or training. The needs of young people with special educational needs and disabilities should be specifically considered and the arrangements in place for each group must be documented in the transport policy statement.

Hammersmith and Fulham transport assistance policy

7. The decision on whether to provide travel assistance is made by the Council EHC (Education Health Care) decision making panel, which has independent representation from education, health and social care officers and will be confirmed in writing.
8. Consideration will then be given as to what assistance will be offered from the range of options available. The option will be determined by the needs of the child, the distance from home to school, public transport route, whether there is already transport going to the school and the most cost-effective mode of travel assistance.
9. Where the Council decides to provide travel assistance, it is agreed for a limited period of time and will be reviewed at least annually or if the child’s or parents’ circumstances change.
10. If parents/carers disagree with the Council’s assessment of the travel assistance that it deems is necessary for their child, including a decision that the child does not qualify for any travel assistance, they may request an appeal of the decision.
11. Appeals are considered by the SEN (Special Educational Needs) Resource Panel, which will be chaired by a different officer to the Local Authority EHC decision making panel but also contains representatives from Education, Health, Social Care and Schools.

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How I considered this complaint

12. I spoke to Miss B and considered the information she provided with her complaint. I made enquires with the Council and considered all the information it provided and the law and guidance referred to above.
13. Miss B and the Council had the opportunity to comment on my draft decision and I carefully considered all the comments I received.

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What I found

Background

14. C has travel assistance due to his needs/ disabilities. This is funded by the Council. He had two Passenger Assistants (PA) who support him during his journey to/ from school. PA D is a qualified teaching assistant and has been C’s main PA since he started School A in 2015. PA E has worked with C since 2018, his role was a second/ support PA. In 2019 the Council reviewed the travel support plan and proposed to reduce the support to one PA, which would be PA E because of the cost saving, due to PA E not being a teaching assistant.

What happened

15. In May 2019, the Council reviewed C’s transport plan. The occupational therapist (OT) recommended a transition from 2:1 support to 1:1 support to be planned with Miss B, C’s teacher and PA’s.
16. The Council sent Miss B a copy of the new travel plan. She replied to ask for clarification about:
• when the new plan would start;
• who the PA would be;
• how the transition would be managed; and
• details about how the ‘back up’ PA would be trained and upskilled.
17. The Council said it could not say who the PA would be. It updated the plan to include the requirements for the ‘back up’ PA.
18. An officer from the education health planning service submitted a management decision form requesting the proposed changes could be made outside of the EHC panel.
19. The form says Miss B agreed but wanted PA D to continue because she was not confident in the PA E’s skills to manage C.
20. The manager agreed to implement 1:1 support with a gradual transition because the recent OT assessment indicated a 1:1 escort was appropriate.
21. Miss B appealed the decision, she said:
• the proposed PA was not the right person to be PA for 1:1 support;
• she would like a meeting to discuss the decision further;
• the Council should put C’s safety before cost;
• the decision was based on views of others not her or C; and
• C could listen and understand and his voice should be heard. She felt there was no effort to engage with C in the decision making.
22. The EHC Panel heard Miss B’s appeal in July 2019. It did not come to a decision and requested further information. The panel minutes say:

“PA D has built up a strong relationship with Child C over the last four years. It may be in Child C’s best interests to continue with the current arrangement if it is cost effective for the Council and there remains questions around PA E’s ability to perform the PA function”.

23. Further information was submitted on a second management decision form. The case did not go back to EHC Panel and the decision was made by an education health planning service manager. The manager agreed support would be reduced to 1:1 and PA E would become the main PA:

“…Council appreciates that C’s mother would like PA D to remain as the primary PA. However, the Council has an obligation to consider the efficient use of resources’.

24. Miss B remained unhappy with the decision and complained to the Council. At the end of July 2019 the Council responded at the final stage of its complaints procedure. It did not uphold Miss B’s complaint.
25. Miss B was not satisfied with the Council’s response and complained to the Ombudsman.
26. In response to my enquiries the Council said:
• The review of C’s travel care plan was coordinated by the travel care team in consultation with Miss B, School and the EHC planning team.
• The Council sent Miss B a copy of C’s travel care plan and she confirmed her agreement in May 2019.
• PA E had been travelling with C since 2018, therefore had already developed a positive relationship. PA E was not a new member of staff working with C.
• Regular monitoring of C’s travel arrangements is in place with the school and his PA. A meeting was conducted with the PA in September 2019 to review progress. A further review meeting was completed at the school with the PA, class teacher and OT.
• The matter in dispute was whether C required teaching staff to support his travel to school. There appears to be a shared understanding with Miss B on the move from 2:1 to 1:1 PA support. It accepts the rationale behind the historic arrangement to use teaching staff with an established relationship with C to support his transition to School A.
• With no evidence to support the need for teaching staff, the continuation of a teaching assistant to support C’s travel to school at a cost of £33,150 per year would not constitute an efficient use of public resources. PA E had an established relationship with C, had already assumed primary PA responsibility and there was an established transition plan. The Council decided that support from a PA was both appropriate and constituted a suitable use of public resources at an annual cost of £18,353.
27. The Council provided a copy of its EHC planning service decision making terms of reference. It says the decisions about this case were made in line with this document. It says the issue in this case was a change in the delivery of a service already place, which would usually be a management decision. But because Miss B was unhappy the request for a review was considered at panel. The panel chair could not reach a decision at panel and requested additional information to finalise the decision. The chair made the decision once he received the additional information.

My findings

The review and decision making

28. The Council says it consulted with the School during the review. It provided a brief record of a conversation with C’s classroom teacher which took place in April 2019. The teacher did not raise any concerns about the proposed changes.
29. It sent Miss B a copy of the proposed travel plan and took her response as confirmation she agreed. This followed a similar process to the previous annual review.
30. Miss B says the changes were financially motivated and not in the best interests of C. The Council is entitled to consider the best use of its resources but should balance this with meeting the needs of C. The Council did explain this to Miss B.
31. The Council did consider C’s needs in the decision-making process. His needs were assessed and considered in the OT assessment. These needs were balanced against the use of Council resources and the requirements for a suitable PA.
32. I do not find fault with the Council for the way it conducted its review and made its decisions to change the travel assistance offered to C. The communication from the Council shows it did seek Miss B’s views about the proposed changes and considered these in reaching its final decision.
33. Miss B also complained about the suitability of PA E. I do not find fault with the Council for the way it made its decision about PA E. PA E was already one of the two PA’s supporting C. The Council provided evidence of training to upskill PA E to take the lead role and evidence of monitoring.

The appeal and complaint handling

34. Miss B appealed the Council’s decision and the case went to the EHC panel. The panel were not able to come to decision and requested further information. The case did not return to the panel and the decision was made by a manger from the EHC planning team. The Council says this is in line with its terms of reference.
35. The Council told Miss B the decision had been made by the panel. This was misleading. The panel did not make the final decision. Although this is in line with the Councils terms of reference I have not seen any evidence this was explained to Miss B.
36. The EHC planning team manager making the final decision and the panel chair were the same person. The Council says this is in line with its terms of reference for decision making. However, this is not what its published policy says. The Council says the policy applies to appeals about eligibility for transport assistance rather than a change of service provision. The policy does not make this clear and appears to apply to all transport appeals.
37. The Council explained the separate terms of reference document however if it is operating a terms of reference outside of its published policy that is neither transparent nor good administrative practice. If someone is appealing a decision it should be clear to that person what the process is and how the decision is made.
38. When Miss B received the panel decision she was directed to the corporate complaints procedure if she remained dissatisfied. The Council handled her response to the panel decision as a complaint and provided a final response, which signposted her to the Ombudsman. This is not the process published in its policy. The Council travel assistance policy says:

“If parents/carers disagree with the Council’s assessment of the travel assistance that it deems is necessary for their child, including a decision that the child does not qualify for any travel assistance, they may request an appeal of the decision. This must be made in writing, explaining why they feel that the policy has not been applied correctly. Appeals are considered by the SEN (Special Educational Needs) Resource Panel, which will be chaired by a different officer to the Council’s EHC Decision Making Panel but also contains representatives from Education, Health, Social Care and Schools”.

39. I find fault with the way the Council handled Miss B’s appeal and complaint. This means Miss B was not properly informed how her appeal was being considered and she cannot be reassured her appeal was considered independently.

Other matters

40. Miss B also complained about the content of the travel plan, particularly the emergency protocol.
41. I do not find fault with the way the Council produced C’s travel plan. Where there is no fault in the way the decision is made I cannot question the professional judgment of those involved in the decision. The appeal and complaint were about the changes to the PA ratio and the proposed PA.

Remedy

42. Where we find fault causing injustice we look to remedy any injustice caused.
43. I carefully considered whether to ask the Council to take the case back to panel so Miss B can be satisfied the decision is made fairly and in line with the Councils policy. However, I am of the view the decision would not be any different if the correct process is followed because the Council considered C’s needs and balanced this against the resource issues and PA suitability.

Agreed action

44. Within a month of my final decision the Council agrees to:
• Pay Miss B £150 in recognition of the additional time and trouble in pursuing her complaint.
45. Within three months of my final decision the Council agrees to:
46. Review its travel assistance policy to ensure it contains the correct information about the appeals process for both eligibility and changes to provision. This should be a transparent process and consistent with any other documents, such as the terms of reference.
47. The Council should provide the Ombudsman with evidence it has completed these actions.

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Final decision

48. I find fault with the way Council handled Miss B’s appeal about travel assistance provision. The Council agrees actions to remedy the injustice caused to Miss B.

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Investigator's decision on behalf of the Ombudsman