Summary: Miss X complains the Council have failed to use a collaborative approach to agree safe school transport terms for her son Y, as detailed in Section F of his Education, Health and Care Plan. She says the Council failed to complete the school transport travel plan properly. We do not find fault with the Council.

The complaint

1. Miss X complains the Council have failed to use a collaborative approach with her and the school to agree a safe school transport provision for her son Y. This was detailed in Section F in Y’s Education, Health and Care Plan at Tribunal.
2. Miss X says the Council did not complete the school transport travel plan properly, leaving her to make the 130-mile round trip journey with her son every day.
3. Miss X would like the Council to work with the school and NHS to provide a medically trained passenger assistant to travel with Y to and from school.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with an organisation’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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What I have and have not investigated

6. I have investigated from September 2023 until the date of the complaint response in March 2024.

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How I considered this complaint

7. I spoke with Miss X and considered the information she provided.
8. I made enquiries with the Council and considered the information it provided.
9. I considered relevant law and guidance, as set out below and our guidance on remedies, published on our website.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Education, Health and Care Plan

11. A child with special educational needs may have an Education, Health, and Care Plan (EHC Plan), following an assessment of their needs. The plan sets out the child’s needs and what arrangements should be made to meet them.
12. The EHC plan is set out in sections which include:
• Section B: The child or young person’s special educational needs.
• Section F: The special educational provision needed by the child or the young person.
• Section I: The name and/or type of school.

School Transport

13. Local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have. ‘Eligible children’ include:

• children living outside ‘statutory walking distance’ from the school (two miles for children under eight, three miles for children aged eight and above);
• children living within walking distance of the school but who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problem;
• children living within walking distance of the school but who cannot walk to school because the route is unsafe; and
• children entitled on low-income grounds. (Education Act 1996, 508B(1) and Schedule 35B)

14. A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability, or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied.

The Council’s SEND home to school travel policy

15. The Council’s home to school travel policy sets out that children with an Education, Health and Care (EHC) Plan do not have an automatic entitlement to free school travel support. The eligibility of a child for free school travel support is set out in statute and depends on the ability of the child to walk to school. Where transport provision has been agreed, the arrangements in place will be reviewed periodically in line with Council policy.

What happened

16. Miss X has a son Y who has an EHC Plan agreed after a Tribunal hearing in October 2023. Y has a diagnosis of Autism, ADHD and other mental health conditions.
17. Section F provision in Y’s EHC Plan said the home to school transport will include:
• Lone transport;
• Passenger Assistant;
• Child locks engaged;
• Tinted rear windows or blinds;
• Passenger Assistant to redirect the conversation to reassure Y and establish good conduct;
• Crew to support Y according to parent and school advice;
• Driver to report all incidents and near misses to the Council school and parent;
• The provider will work collaboratively with the school and parents to ensure transport is suitable.
18. Y moved from a mainstream primary school to a specialist school in September 2023. Miss X had asked for the same transport team to continue with Y but the Council said this was not possible as the transport was shared, so the contract went out to tender.
19. As there was a delay with the tender the Council agreed a Personal Travel Budget at the start of term with Miss X.
20. A taxi company got the contract and attended Y’s address in mid-September 2023. Miss X says they were supposed to arrange a meet and greet before the school commute started but this was all done on the same morning.
21. When the taxi company arrived Miss X says the taxi drivers wife was the Passenger Assistant (PA) for Y. She said the PA could not speak or understand English very well so she could not discuss Y’s needs and details. The PA said she had completed basic training but no training in ADHD.
22. The taxi company said the Council had not requested this specific training.
23. Miss X said she did not feel Y would be safe so she took him to school herself and has done since then. This is a round trip of 130 miles every day.
24. Miss X emailed the Council on the same day and asked for details of another provider.
25. The Tribunal hearing completed in October, and at this point Y’s teacher had noted his tics at school. Y also had seizures and from November Miss X says these have now evolved to Y having blackouts which the school have witnessed.
26. Miss X requested a medically trained PA to travel with Y on his school commute. The Council liaised with the NHS to see if it could provide this.
27. The NHS nurse training team said it would need further medical clarity as Y did not have any formal diagnosis. Any recommendation for a formally medically trained PA from a Consultant would be met.
28. The Council got advice from a paediatric specialist who gave a thorough review. However the specialist could not give a diagnosis, so the NHS training team said Y did not meet the criteria for a medically trained PA.
29. The Council agreed a Personal travel Budget so Miss X could continue to drive Y to school.
30. In February 2024 Miss X complained to the Council. She outlined the challenges she had before September 2023 and that she only got the travel plan and provider details the day before Y started his new school. The EHC Plan said the Council had to work with the school and parents, but the Transport Services Group has never had a meeting with the school.
31. The Council’s response in March explained Y did not meet the criteria for a medically trained PA as there was no physical disability or medical need. It said it created the safe travel plan in collaboration with Miss X and the EHC Plan and there was no evidence the Council did not deliver what was required.
32. In response to our enquiries the Council said it arranged a meeting with the school in March but the school cancelled it. However the Council did engage with the school and parent to develop the school travel transport plan. It said the school transport plan was created based on Y’s needs however for students without a medical treatment plan it asks the school and parent to provide awareness training for the specific child. It is unable to authorise medical administration in a taxi by a PA without an NHS treatment plan and official training.
33. Miss X brought her complaint to the Ombudsman. She says the travel plan should be created with regards to how Y presents, rather than waiting for a formal diagnosis. He is having seizures and blackouts and she says the school agree with her. Y’s teacher says there is a risk of putting Y in a taxi if the PA does not understand the presentation of his seizures. They can look like a behavioural meltdown but are a medical condition.
34. Y has to travel for two hours a day and stay at school for six hours a day with undiagnosed neurological issues. Miss X says the stress of the situation has had a serious impact on her well being. She has to spend two hours a day on the motor way to take Y to school. She us unable to work and has no support.

Analysis

35. Although the Council did not have a meeting with the school, it did engage with the school and Miss X in development of the school travel transport plan.
36. When the tender was delayed the Council agreed a Personal Travel Budget for Miss X.
37. The Council consulted with the NHS for advice about a trained PA for Y, but could only do as advised. When Miss X refused the taxi service it continued to pay her a Personal Travel Budget.
38. Although I know Miss X will be disappointed, I cannot find fault with the Council on this complaint.

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Final Decision

39. I do not find fault with the Council as it collaborated with the school and Miss X, and I find no fault with the school transport travel plan.

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Investigator's decision on behalf of the Ombudsman