Summary: Mrs X complained that the Council failed to plan properly for support on home to school transport for her daughter when it changed its policy on passenger assistants for pupils with complex medical needs. She says this meant she did not know how her daughter would get home from school on the first day of term. The Council was not responsible for the breakdown of travel arrangements at the beginning of term. But there were failings in communications with Mrs X about what would happen following the policy change which caused her anxiety. The Council has agreed a suitable remedy.

The complaint

1. Mrs X complained that the Council failed to put in place a plan for her daughter to receive suitable home to school transport from September 2019 after changing its policy on allowing travel assistants to administer emergency medication during the journey. As a result she says she and her family suffered distress and anxiety not knowing what the travel arrangements would be, and she had to put unnecessary time and effort into pursuing the issue with the Council.

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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 discussed the complaint with Mrs X and considered the information she provided. I considered the information the Council provided in response to my enquiries. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
5. Mrs X also made a complaint to the NHS Clinical Commissioning Group (CCG) about its part in the changes to the transport arrangements. This investigation concerns the complaint against the Council only.

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What I found

NHS Continuing Health Care

6. Some people with complex health needs, including children and young people, may qualify for NHS Continuing Health Care (CHC). This is free social care arranged and funded by the NHS. A multi-disciplinary team of professionals assesses whether the person is eligible for support with their care needs following an initial checklist which may be completed by a social worker. The NHS may share funding for a care package with the local authority.

Councils’ transport duties to young people of sixth form age

7. Councils must publish a transport policy statement every year setting out the transport arrangements it considers necessary to enable young people of sixth form age to attend education or training. This includes pupils aged 16. The statement must include arrangements for students with special educational needs and disabilities. The council must make the arrangements set out in the statement. (Education Act 1996, sections 509AA and 509AB)

The Council’s education transport policy

8. The Council has an ‘All Age Travel Assistance Policy’ which sets out the Council’s arrangements for help with transport for children and young people to and from their education placements. Under this policy sixth form age students are eligible for help with transport if the Council considers there are:

“medical or social reasons (including both physical and mental conditions affecting the capacity for independent travel), supported by professional evidence, why travel assistance is necessary to facilitate that young person’s participation in education and training.”

Changes to the Council’s policy

9. The Council reviews its All Age Travel Assistance Policy every year. It carried out a public consultation from 20 November 2018 to 12 January 2019 on proposed changes to the policy for the school year 2019-2020.
10. One of the changes proposed was to the way support would be provided to children and young people with complex medical needs. The Council employs Passenger Assistants to escort pupils on transport. These are non-medical staff who do not have any supervision from nurses or medical staff. A few of them had previously volunteered to receive basic training to deliver medical interventions for children on transport. The Council’s proposal was to withdraw this provision and replace it with an ‘Epilepsy Care Pathway’ and an ‘Emergency Care Pathway’. These are guidelines for action to take in the event of a medical emergency on home to school transport. The Council says it expected that under the proposed new policy, a small number of children would continue to be escorted by medically trained staff. The difference would be that the Council would not employ the staff directly. Instead it would commission appropriate support from outside providers, in consultation with the Trafford Clinical Commissioning Group (CCG). This support could be a school staff member or a health professional funded by the CCG, for example under NHS CHC arrangements or a personal health budget.
11. As part of the consultation the Council wrote to parents to seek their views. It also considered feedback from Passenger Assistants and schools. The Council worked with the CCG to develop the parts of the policy on support for pupils with complex medical needs. It carried out an Equality Impact Assessment.
12. Following the consultation the Council decided to approve the new policy for the school year 2019-2020, starting in September 2019. It published the policy on its website on 31 May 2019.
13. The relevant parts of the amended policy said:
• Children and young people with complex physical or medical needs include those with stable epilepsy where rescue medication might be needed for unpredictable, prolonged seizures.
• Where specialist travel arrangements are necessary and the young person is eligible for NHS CHC, “NHS funding may be applied for, for a medically trained member of staff to accompany the young person on the home to school transport”.
• Passenger Assistants and/or drivers are not trained to provide healthcare interventions during the journey to or from home to school.
• The parents of a child with complex physical or medical needs may be best placed to provide transport for the child. The Council would encourage the parent to take the child to school themselves and the Council would pay mileage expenses. But if the parents are unable or unwilling to provide transport, the Council will offer suitable transport with the option for the parent, or a carer chosen by the parent, to accompany the child to provide any medical help where needed.
14. The policy set out the ‘Emergency Care Pathway’ and ‘Epilepsy Care Pathway’ in case of medical emergencies. Under these guidelines, where a child had a seizure on the transport, the PA should make sure the child was safe, dial 999, and inform the Council’s Trafford Travel Co-ordination Unit (the TTCU) who would then contact the parents and the school.

What happened

15. Mrs X has a daughter, D, who turned 16 in July 2019. D has severe learning difficulties, epilepsy and mobility problems. D qualifies for help with transport to and from school under the Council’s policy. Until the end of the summer term in July 2019 the Council provided a Passenger Assistant (PA) who had received the voluntary training to enable her to give D rescue medication if she had a seizure on the transport. Mrs X also receives a social care personal budget to pay for carers for D from an agency (the ‘Care Agency’).
16. In November 2018 Mrs X received a letter inviting her comments as part of the consultation exercise on the proposed changes to the transport policy. This was from the Lead Member of the Council responsible for the consultation, Councillor G. The letter said the Council believed:

“it is no longer in the best interests of children for non-medical staff to administer medical interventions for children on transport. Currently Passenger Assistants receive basic training to administer medical interventions; however this is on a voluntary basis and Passenger Assistants are not supervised by nurses or medical staff. The Council proposes to withdraw this voluntary Passenger Assistant provision and instead replace it with an acute care pathway plan.”

17. Mrs X received another letter from the Council in December 2018 with further information about the proposed changes based on questions put to the TTCU. It included the following information:
• The Council was not proposing to withdraw PAs from travelling with children with complex medical needs. It was proposing to end the practice of PAs providing medical interventions.
• It explained what the acute care pathway was.
• If approved the policy would start on 1 September 2019. The TTCU would be “working with health colleagues and parents to identify if children and young people with the most complex needs, currently on Trafford Commissioned transport supported by Passenger Assistants, need a different level of medical support.”
18. Mrs X replied to Councillor G in late December 2018 outlining her concerns about the risks to D if there was no-one to give her rescue medication on the school transport if she needed it. Mrs X said if the change to the policy went ahead she would like extra funding in D’s social care budget so D’s carer who helped her in the mornings could also accompany her to school. Mrs X said she looked forward to hearing about the future direction of the proposals so she had time to put other arrangements in place.
19. Councillor G replied in early February 2019 explaining that under the new arrangements if approved, if D had a seizure the PA would follow the epilepsy care pathway. He said the Council was advising parents they should provide information to the TTCU about signs to watch out for and it would pass this on to the PAs. The letter said “if you feel there is a requirement for additional medical support you can speak to your GP, nurse or other practitioner about this and request a referral for a full assessment for NHS continuing healthcare”.
20. Mrs X responded saying she had spoken to D’s paediatric consultant who was “horrified” by the proposed changes to the transport arrangements. Mrs X provided a copy of a letter from the consultant confirming that if D were to have a prolonged tonic/clonic seizure, whoever was accompanying her would need to call an ambulance. But in the meantime D would need rescue medication which would have to be “administered by the trained person who will be accompanying her at all times”. Mrs X said D’s epilepsy was not well managed at the moment and she was having frequent seizures. She said from 1 June she would be using Ds social care budget to ensure her daughter had help on the school bus from her carers who would give her medication if necessary.
21. Councillor G replied to Mrs X at the end of February saying the TTCU had advised it had not been aware D’s epilepsy was not well managed. However he said it was not appropriate for PAs to give rescue medication. He recommended that the CCG and Children’s Social Care help her commission the support. He noted that Mrs X would be using her social care budget to ensure support on the bus. He said the TTCU would liaise with the social worker.
22. In the meantime, starting on 19 February, the Council contacted D’s school and several health professionals involved with D asking to discuss the current state of D’s epilepsy and what sort of support she would need on school transport. The Council contacted the Nurse Manager and Paediatric Epilepsy Lead Nurse in the Community Nursing Team, and Trafford CCG. The CCG decided there should be a meeting between health, Children’s Social Care and the TTCU to discuss how support could be provided on the transport.
23. During February and early March 2019 there was an exchange of emails between Mrs X and the Epilepsy Nurse about possible dates for a meeting. Mrs X pointed out that D did not have NHS CHC funding.
24. The Council asked for an update from the Community Nursing Team at the end of March about the current situation with D’s epilepsy, whether there had been a referral for a CHC assessment and whether funding was available to provide a trained escort. In April the CCG confirmed that D’s social worker had completed a CHC checklist and was in contact with the CCG about funding. However it said the CCG could not do the assessment as it did not have a paediatric nurse in post.
25. Mrs X emailed the Council in early May saying she was still waiting to hear back from the CCG about funding for September. She said no-one from the CCG or Children’s Social Care had been in touch with her about the transport arrangements.
26. Mrs X then received an email from the Director of Education saying the TTCU had confirmed a plan to ensure safe travel for D in the future. It said the CCG should be her point of contact. But the Council had escalated her concerns to the CCG and asked for a formal response as soon as possible.
27. At the end of May 2019 the Council wrote to parents and carers to confirm it had approved the proposed policy changes. It said the TTCU had been working closely with health colleagues and parent carers to plan for those children and young people with the most complex needs who needed a different level of support on the transport the Council provided. It said it was enclosing a proposed ‘care card’ for the child or young person and invited the parent/carer to contact the TTCU if they wanted to make any changes to the information on the card.
28. The care card Mrs X received for D noted that until funding was agreed for the parents to put a care plan in place, D would have a ‘general escort’ on the transport who should follow the Epilepsy Care Pathway if D had a seizure on the vehicle. It noted the TTCU was “waiting for parent/carer feedback on this”.
29. On 22 July 2019 the Deputy Chief Nurse for the CCG and the Council’s Director of Education visited Mrs X at home to discuss the way forward for transport and the outstanding assessment for health funding. After the meeting Mrs X sent an email to the CCG about the discussion she had had with the Care Agency about the possibility of D’s current carers supporting her on the transport funded through her personal social care budget. Mrs X said if this was going to happen it needed to be decided quickly so the Care Agency could allocate staff. The Deputy Chief Nurse then arranged for the CCG Complex Care Consultant to visit the family to explore a solution.
30. Mrs X made a formal complaint to the Council on 24 July. She complained that since she had raised concerns about the need for a medically trained PA to be with D on her transport, no-one had come up with a solution. She said there appeared to have been no communication between the CCG and the Council and no resolution in sight. She wanted to know what the arrangements would be for her daughter from September.
31. The Council did not receive the complaint as Mrs X sent the email to an officer who had left the Council and his email account was no longer active.
32. The Complex Care Consultant, Mr Y, visited the family at the beginning of August. The Deputy Chief Nurse reported back to the Council by email the following day on the outcome of the discussion and the proposed way forward, as follows.
• The Consultant had explained to Mrs X that there was a delay with the continuing care assessment.
• He had offered an interim package of care funded by the CCG until the full assessment could take place. He recommended adding to the existing care hours provided by the Care Agency so the carer could take D to school in the mornings and collect her in the afternoons. The Care Agency had confirmed its care staff were trained to administer the rescue medication if needed.
• Any arrangement where an escort would need to call 999 if D had a seizure represented “a huge risk in terms of health” for D.
• He asked the Council to agree a funding arrangement where the Council and the CCG would share the costs of the transport assistant.
• He expected to have the matter resolved by the end of August.
33. The email ended by saying:

“this means that the pressure regarding transporting [D] to and from school is now resolved for the family, putting the child and her family at the centre and working back from there. [Mr Y] has spoken to [Mrs X] who, although still frustrated by the delays to [D’s] care plan, is glad that the issue of transporting [D] safely to and from school in September is resolved.”

34. In early August there was correspondence between Mr Y at the CCG, Mrs X and the Care Agency confirming the arrangements for the Agency to provide carers trained in giving rescue medication to accompany D to and from school. The arrangement was to start on the first day of term, 4 September 2019.
35. However after further correspondence between the CCG, the Care Agency and Mrs X, the Care Agency wrote to Mrs X on 20 August saying it had not been able to arrange transport support in the afternoon “due to staffing”. It said it “may be able to offer this service in the future”.
36. The same day Mrs X chased the Council for a response to her complaint. The Council replied explaining why she had not received a response and said it would escalate the complaint.
37. There were further email exchanges between Mrs X and the Care Agency about the rota for morning and afternoon transport in late August.
38. On 3 September 2019, the day before term started, Mrs X copied the Council into an email exchange with the Care Agency saying the arrangements for a transport escort were in place for the mornings but not the afternoons. Mrs X asked someone to contact her to say how D was going to get home from school as neither Mrs X nor D’s father could collect her. She said she had raised the issue in December 2018 and the Council had taken little action.
39. The Council contacted the Care Agency to find out what the problem was and was told it was lack of staffing. The Agency said it was recruiting and hoped to be able to provide the support on some afternoons, if not all in future. The Council also says it told Mrs X there was still a space for D plus a carer on a Council commissioned vehicle.
40. The following morning the Council contacted D’s school and the CCG by telephone about the urgent need for transport arrangements that afternoon. It secured an arrangement whereby the Care Agency would provide an escort for the afternoon journey on 4 September, and another care agency would provide an assistant for D on a transport route serving the school after that. Staff from both agencies were trained to administer epilepsy rescue medication.
41. Mrs X was in email contact with the CCG and the Care Agency during the course of the day on 4 September. The CCG told Mrs X it was trying to find a solution to get D home from school that afternoon. Shortly before school pick-up time the Care Agency sent an email to Mrs X confirming it would collect D from school that day but it did not have a solution for transport home in the afternoons.
42. The Care Agency collected D from school on 5 September. The alternative arrangement for the afternoon transport that the Council agreed started formally on 6 September but Mrs X did not take it up until a few days later after obtaining details of the health care plan sent to the other agency.
43. The Council issued D’s final Education Health and Care Plan on 9 September. In the section on health provision it sets out the travel arrangement to be funded by the CCG and paid to Mrs X through a personal budget. It said “when travelling [D] should be accompanied by a suitably trained and qualified person who is able to administer rescue medication should it be needed”.
44. The Council replied to Mrs X’s complaint in mid-September 2019. It referred to the history of the consultation on the Council’s new policy. It said there had also been direct communication between her and Councillor G. He had highlighted that if D might need rescue medication there would need to be alternative arrangements for supporting D through the CCG or Children’s Social Care. The Council said it understood D was waiting for a CHC assessment by the CCG. But the CCG had offered to fund an interim package of care in the meantime which would include medically trained escorts on the transport. It said the TTCU was in contact with the CCG about the arrangements.
45. Mrs X not happy with the response and complained to the Ombudsman. She said the Council had failed to plan for alternative support arrangements on the transport for D. She said this meant she was left not knowing how D would get home on first day of term.

Analysis - was there fault causing injustice?

46. Looking at the above history I do not agree with Mrs X that there was no communication between her, the Council and the CCG about the new transport arrangements. Nor could I say that the Council failed to take any action to put new arrangements in place. However in my view the message to Mrs X was unclear in the early stages about how the existing support D had on the transport would be replaced and what it would entail.
47. In December 2018 the Council told Mrs X it would be working with parents and health services to look into extra support for pupils with complex medical needs. Then, when she responded with her concerns, the Council told her in early February 2019 it was for her to enquire about a CHC assessment for health funding. In correspondence after that Mrs X said she would like extra funding through her social care budget to pay for a carer to accompany D on the transport. But although the Council said the TTCU would be liaising with D’s social worker, it did not explain what would happen, advise her how to go about seeking extra funding or update her on any action taken.
48. In fact the Council did start contacting health professionals about possible alternative arrangements in February 2019, but I have not seen evidence that it told Mrs X about these discussions. By early May Mrs X was still in the dark about what would happen in September. Then when she received the letter and care card at the end of May, this confirmed that unless and until she received CHC funding, the only support D would have was a general escort who would have to follow the standard emergency procedures if she had a seizure. The Council says it would normally send a letter with details of the transport arrangements on the care card before the start of term. In its response to the Ombudsman it has apologised for failing to do so on this occasion, but says it was waiting to hear about CHC funding.
49. The Council accepts it was its responsibility to ensure D had suitable transport arrangements in place. Yet it initially appeared to put the onus on Mrs X to look into funding for replacing the PA support, and then failed to update her on the action it was taking.
50. However by early August when the Complex Case Consultant visited Mrs X at home, she was aware of the proposed interim arrangement, funded by the CCG. Records show she was pleased the matter had been resolved.
51. I consider the lack of clear communication up to this point was fault. It caused Mrs X unnecessary anxiety and uncertainty for at least seven months about how D would be supported from September.
52. Mrs X complains that on the day before the start of term in September 2019 she still did not know what the transport arrangements would be for D for the return journey from school in the afternoons. I do not doubt this caused her a great deal of anxiety and distress. However I have not seen evidence that this was due to fault by the Council. There was correspondence between Mrs X, the Care Agency and the CCG in late August about the lack of support for the afternoon journey. But the Council says it was not aware of the problem until Mrs X sent it copies of correspondence with the Care Agency on 3 September. I have not seen any evidence that the Council was informed before this date. The last record the Council has shows that the CCG said the matter was resolved. The Care Agency would provide support on the transport both morning and afternoon, as part of a care package funded by the CCG. I have not seen any evidence that the CCG, Mrs X or the Care Agency told the Council before 3 September that anything had changed.
53. Once the Council was aware of the problem it took prompt steps to ensure there was arrangement in place, first on an urgent basis and then longer term.

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Agreed action

54. The Council has agreed that within one month of the decision on this complaint it will:
• write to Mrs X to apologise for the poor communication I have identified; and
• offer her a payment of £150 for the anxiety this caused.
55. It has also agreed that within three months it will review its communications with parents of pupils eligible for help with transport. It should identify steps it can take to ensure it makes it clear how the Council is going to ensure suitable transport arrangements are in place in the event of any future policy changes.

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Final decision

56. I have found fault by the Council in its communications with Mrs X which resulted in uncertainty and anxiety for her. But the Council was not responsible for the breakdown in the arrangement at the start of term in September 2019. I am satisfied with the action the Council has agreed to take to remedy the injustice caused and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman