Summary: Mr X complained about the Council’s failure to promptly reinstate school transport for his disabled child and poor complaint handling. We have found the Council was at fault because it did not carry out a proper assessment of risk and did not respond to his complaint properly. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Mr X to acknowledge the distress caused and review its practices.

The complaint

1. Mr X complains the Council failed to provide suitable home to school transport for his son in for three weeks. He says this was discriminatory and caused significant distress and inconvenience.
2. Mr X is also dissatisfied with how the Council failed to properly respond to his complaint about this matter.

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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. I spoke with Mr X and reviewed the information provided.
6. I made enquiries with the Council and reviewed the relevant law.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The Council’s school transport policy on passenger assistants

8. A passenger assistant will only be provided following the outcome of an assessment of the child’s special education and/or medical needs. This will take into account:

• A child’s medical needs.
• Where a child’s needs create a clear danger or health and safety risk to themselves or other passengers on the vehicle.
• Where an assessment of the children on the vehicle and the journey to be undertaken highlight a clear danger or health and safety risk to all passengers on the vehicle.

9. The Council’s decision will be based on evidence received from all relevant parties.

What happened

10. Mr X’s son (Child Y) is disabled and has special educational needs. The Council provided home to school transport, including a passenger assistant.
11. In early March 2021, the Council told Mr X it had to suspend Child Y’s existing transport arrangements following an incident on the vehicle. The Council’s initial response was to offer transport to Child Y’s brother instead, so enabling their parents to take Child Y to school. Another suggestion was for Child Y to wear absorbent gloves and ear defenders. Mr X strongly objected to this proposal because it would have been ineffective, caused significant distress to Child Y. He said this demonstrated the Council’s lack of understanding about Child Y’s disability.
12. Soon afterwards, the Council said it would be providing transport on a minibus with one other child, but this would be without a passenger assistant.
13. Mr X told the Council this was unacceptable. He reminded the Council that Child Y requires a high level of supervision, and it would be unsafe for both Child Y and others to travel unaccompanied.
14. The Council reconsidered its position and agreed to provide a passenger assistant.

Mr X’s complaint

15. Mr X had to take Child Y to school himself for three weeks while the matter was resolved causing significant inconvenience. He was also unhappy about the Council’s complaint handling which added to his frustration. He had to wait approximately two months for a reply from a councillor which did not properly address all of his complaint. He had raised concerns about what he believed to be the Council’s discriminatory practices. This aspect of his complaint was not dealt with even after the Council confirmed to the Ombudsman this would happen.
16. Mr X was concerned that the Council’s earlier proposal was unsafe, ill-informed and failed to take account of Child Y’s needs and potential risk.

Analysis

17. There are two areas of complaint that I shall address below:

Poor handing of transport replacement service

18. It is understandable that when Child Y’s existing transport arrangements abruptly came to an end in early March 2021, that it may not be possible to find an alternative straight away. And this reality was accepted by Mr X. The records show the Council promptly allocated a responsible case officer and the matter was referred to an appropriate decision-making forum.
19. The Council then made several suggestions that Mr X found unacceptable, and in his mind demonstrated a lack of understanding and insight into both the health and safety issues involved, as well as Child Y’s circumstances. I agree. The records show the proposal for Child Y to sit at the back of a bus unaccompanied was informed by a member of school staff who said that Child Y would be able to travel with one other passenger if they sat at the front of the vehicle. However, the school has told the Ombudsman that this was a misunderstanding and that at no time did it say Child Y could travel without a passenger assistant, nor was it consulted by the Council as part of a risk assessment. In fact, it had specifically told the Council that none of its learners should travel independently. The suggestion of gloves and ear defenders was made by a member of the Council’s transport forum.
20. The Council has accepted it did not carry out a risk assessment but has said this was not necessary because enough information was obtained from the school and previous operator. The Council’s policy states information should be gathered from “all relevant parties”. There is no evidence this happened.
21. In this type of situation, involving a severely disabled child whose previous arrangements had ended suddenly because of health and safety concerns, I would expect to see a risk assessment, particularly as the Council’s own policy expects one.
22. Instead, in making its decision, the Council relied on an inaccurate misunderstanding of what the school had said without any consideration about what, for example would happen if there was a breakdown or incident with the other passenger or the driver, particularly as Child Y is non-verbal.
23. The decision to provide a passenger assistant did eventually consider this, but only when this was highlighted by Mr X when objecting to the previous suggestions.
24. In my view the Council’s failure to carry out an adequate risk assessment, prevented the Council from dealing with this matter properly and led to avoidable delay, frustration and inconvenience. While I understand the Council’s need to explore possible options, the Council should have taken account of all relevant information and from the evidence I have seen, this did not happen.
25. For this reason, I have found the Council to be at fault. I cannot say the Council acted in a discriminatory way as alleged by Mr X, rather it failed to follow the correct process in its consideration of the matter

Poor complaint handling

26. Understandably, Mr X wanted Child Y’s home to school transport reinstated as quickly as possible. As weeks went by without a resolution, he sent several letters of complaint to both councillors and officers. There was a delay him receiving a response from a councillor due to a misunderstanding as to who was responding. The councillor apologised for this.
27. While this was understandably frustrating to Mr X, had already been informed that the passenger assistant had been agreed and so the councillor’s apology for the delay is a sufficient remedy for this error.
28. However, the Council did not respond to Mr X’s wider complaint about possible systemic failure, even when it confirmed it would do so to the Ombudsman. This is fault.

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Agreed action

29. To remedy the injustice caused by the faults identified in this report, the Council has agreed to take the following action within four weeks from the date of my final decision:
1. Apologise to Mr X.
2. Pay Mr X £100 to acknowledge the avoidable delay, frustration and inconvenience caused by not carrying out a risk assessment and its poor complaint handling.
3. Remind relevant officers of the need to carry out a risk assessment in respect of travel arrangements that involve health and safety issues.
30. 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.

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Final decision

31. I have completed my investigation. I have found the Council to be at fault and the Council has agreed to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman