Summary: Mrs X complained the Council failed to transport her son, Y, to school safely, delayed Y’s assessment, which was flawed, and failed to repay her costs. The Ombudsman found fault causing injustice when the Council delayed carrying out an assessment and allowed unsuitable transport to continue, putting Y's safety at risk.

The complaint

1. Mrs X complained the Council failed to transport her son, Y, to school safely. She said the Council delayed carrying out Y’s assessment and the assessment was flawed. She also complained the Council failed to repay her for the period she transported her son to school while the Council carried out its assessment.
2. This caused Mrs X distress, loss of earnings, and time and trouble.

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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. 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

5. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• Home to School Travel and Transport Guidance 2014.
6. Mrs X and the Council now have an opportunity to comment on my draft decision.

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What I found

Relevant guidance and legislation

7. Councils must make transport arrangements for all children who cannot reasonably be expected to walk to school because of their mobility problems or because of associated health and safety issues related to their special educational needs or disability (SEND).
8. Eligibility for such children should be assessed on an individual basis to identify their particular transport requirements. The Government has issued statutory guidance ‘Home to School Travel and Transport Guidance 2014’. This explains how councils should deal with school transport requests. In discussing the suitability of transport arrangements, the Guidance says:
• Best practice suggests the maximum each way length of journey for a child of secondary school age is 75 minutes.
• For children with SEN and/or disabilities, journeys may be more complex and a shorter journey time, although desirable, may not always be possible.
• For arrangements to be suitable, they must also be safe and reasonably stress free, to enable the child to arrive at school ready for a day of study.

Council policy

9. Where a medical needs assessment is required, it is the responsibility of parents to provide transport until the assessment is completed. The independent travel allowance will be made available to support parents in these circumstances.
10. If a further assessment is needed (i.e. due to a deteriorating condition) it will be the parent’s responsibility to provide transport until recommendations are available.
11. The Council recognises the needs of children change. In these circumstances, the Council will work jointly to review the level of help needed. This may result in a different level of travel help. It can take up to ten working days to carry out changes. The Council will try to adapt arrangements sooner.
12. The independent travel allowance is designed to support parents meet the costs of transporting their children. The scheme offers a flexible allowance to make transport arrangements. The allowance is based on a flexible, banded model where the amount depends on distance travelled.
13. The Council’s policy does not state a timescale for carrying out school transport assessments, but it does aim to carry out assessments for children in need within 45 days.

What happened

14. The Council has provided school transport to Y for several years. Y has a rare and complex genetic disorder, as well as autism, and severe learning disability. He is non-verbal. He also suffers from severe and complex epilepsy, with daily seizures. Some life threatening. He needs specialist care for autism and his medical needs.
15. In January 2018, Y had a life-threatening seizure resulting in acute respiratory failure. He began having regular, complex seizures and had another serious seizure in April 2018. Mrs X spoke to the Council’s transport team in and asked it to carry out a risk assessment. A caseworker from the Council emailed Mrs X on 24 April asking her to update Y’s personal travel plan.
16. Y’s updated travel plan, dated 25 April 2018, states he has a history of seizures. He needs an escort to have specific training in seizures and be able to recognise them. They must be able to give rectal diazepam and cardiopulmonary resuscitation (CPR).
17. Mrs X received an email from the Council on 3 May 2018 to say it did not think current arrangements were suitable and an assessment by an NHS assessor was needed. The Council said it could not ask for a medically trained passenger assistant assessment and Mrs X should contact her SEN caseworker.
18. Mrs X was not aware of the Council’s transport policy, or the travel allowance, at this point.
19. The Council made a referral to the NHS for Y’s assessment on 9 May 2018. It chased this on 30 May, but the NHS had taken no action and the referral was resent.
20. The NHS contacted Mrs X on 5 June and asked her and the school to fill in a questionnaire. Mrs X returned this on 8 June.
21. Y had a health assessment on 12 June 2018. Mrs X told me this was done on paper and not in person. The assessor said Y needed a one to one escort trained in seizure management. Y needs rectal diazepam to treat his seizures. It would not be usual practice for the escort to give diazepam but to call an ambulance.
22. The NHS community nursing service (CNS) made recommendations to the Council on 9 July 2018. It said Y’s escort would need first aid training, including seizures, but would not give rectal diazepam. It highlighted issues around manual handling, dignity, and privacy. It said an ambulance should be called instead. The CNS said a second escort should be added to Y’s travel route, he did not need solo transport.
23. The Council told Mrs X on 10 July that it considered Y needed an escort with basic first aid training, including seizures, but he did not need solo transport with a one to one escort. It said it would add a second to the route.
24. Mrs X was concerned the Council did not mention anything about an escort giving rectal diazepam. When Y had another life-threatening seizure on 20 July 2018, Mrs X decided to take him to school herself as the Council could not ensure his safety. Y had another seizure in August 2018.
25. Y’s school wrote to the Council on 2 August 2018. It recommended solo transport with an assigned assistant trained to give Y’s emergency medication. It also said Y needed a seizure protocol.
26. The Council agreed to provide solo transport following Y’s seizures in July and August.
27. Mrs X asked the Council to repay her costs on 16 September 2018. The Council offered to pay £18.06 per day for the 69 miles Mrs X travelled.
28. The Council received updated advice from the CNS on 13 September 2018. Y needed an escort trained in basic life support, management of epilepsy, and giving of rectal diazepam. The Council confirmed this to Mrs X on 17 September 2018.
29. The Council said it put new arrangements in place for Y on 30 October 2018. However, Mrs X said new arrangements were not in place until early November.
30. Mrs X complained to the Council in October 2018 about delays, lack of communication, and failure to repay the costs she incurred transporting Y to school.
31. The Council sent its final complaint response on 13 November 2018. It said:
• It was correct, and in line with procedure, to follow CNS recommendations. It agreed to revisit the recommendations after Y’s seizures in July and August 2018.
• The process was not as timely as it would have hoped, and it could have been more consistent in its communication with Mrs X. It apologised for this.
• While the Council waited for new recommendations it was Mrs X’s responsibility to take Y to school. She was entitled to mileage repayment of £18.06 per day, but the Council would not pay for her time.
32. Mrs X complained to the Ombudsman on 28 October 2019. She said the Council failed to provide a satisfactory service to Y and did not repay the full costs she incurred or pay her compensation.

Response to my enquiries

33. The Council told me its independent travel allowance (ITA) scheme is for families who can make the regular commitment to take their child to school, not to cover interim periods. The ITA supports parents to meet the cost of transporting children to school where other more cost-effective solutions are not available or suitable.
34. The Council said delays in the process were likely a result of arranging Y’s medical assessment. It said it met with Mrs X to discuss the delays, as well as the recommendations, and apologised to her.
35. Since Mrs X’s complaint, the Council has formed a SEND travel assistance team which has meant a streamlining of processes and consistency in decision making. The team works closely with the transport coordination centre, which handles the operational side of transport.
36. The Council has published a new transport policy which provides clear guidance on how to ask for exceptional transport. The policy combines mainstream and SEND transport into one policy.

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Analysis

37. The Council agreed in May 2018 that Y’s travel arrangements were not suitable – yet it did not stop his transport or ask Mrs X to arrange transport while it carried out an assessment. It let Y’s transport continue despite recognising it was not suitable. That was fault.
38. Mrs X decided to take Y to school herself in July 2018. The Council’s policy is for parents to take their children to school while a re-assessment takes place. While this is eventually what happened, it did not occur through the decision or advice of the Council. The Council did not explain this to Mrs X or offer her any form of support meanwhile. That was fault.
39. The ITA is not an interim measure. I therefore do not consider the Council was at fault in not offering this to Mrs X. It calculated a mileage allowance was more cost-effective. That decision was in line with its policy.
40. The Council’s policy recognises it should adapt to the needs of children as they develop. It tried to adapt to Y’s needs, though not quickly enough. It accepted there were delays.
41. I do not criticise the Council for following the recommendations of the CNS. It was entitled to do so. When new information became available, it reviewed its decision and made changes. However, again, this did not happen quickly enough.

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Injustice

42. When the Council did not tell Mrs X she was responsible for transporting Y to school in April 2018, he was left with unsuitable transport for about three months. He was at risk of serious harm if he had another seizure. This caused significant avoidable distress to Mrs X.
43. After the Council agreed to review its decision in August 2018, it did not put new transport arrangements in place until late October 2018. This caused Mrs X further avoidable distress, frustration, and time and trouble.
44. Mrs X would like the Council to pay her lost earnings for the period she took Y to school. I cannot calculate Mrs X’s exact lost earnings, but I do consider the loss caused Mrs X further avoidable distress which the Council should remedy.

Agreed action

45. Within eight weeks of my final decision, the Council will repeat its apology and pay Mrs X the sum of £1,500 to recognise the distress, frustration, and time and trouble its faults caused. This consists of:
• £200 for Mrs X’s time and trouble throughout the process (in pursuing suitable travel arrangements and in transporting Y to school).
• £300 for the distress of Mrs X’s lost income (£100 for each of the three months she transported Y to school).
• £1,000 for the distress caused by the Council’s delays (particularly during the first three-month period where Y was receiving unsuitable transport which risked his personal safety).
46. The Council will also pay Mrs X the mileage allowance it previously offered.

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Investigator's decision on behalf of the Ombudsman