London Borough of Lewisham (16 012 609)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 04 Jul 2018


A mother and carer (Ms X) complains about the way the Council assessed her son’s (Mr Y's) eligibility for special educational provision, social care and transport when he transferred from school to
college. She also complains about the Council’s failure to offer a personal education budget or to mediate disagreements.


The Ombudsman upheld the complaint and found fault causing injustice.


To remedy the injustice, the Council has agreed to:

  • Apologise to Ms X and Mr Y for the faults identified
  • Retake its decision whether it owes a transport duty to Mr Y under s.508F(1) Education Act 1996 or is willing to make provision under s.508F(8). It will share a copy of this decision with Ms X and us.
  • Review Ms X and Mr Y’s care assessment to:
    • set out Mr Y’s total eligible needs including consideration of: (i) transport to college (if this is not to be met by the Council under s.508F) (ii) transport to leisure activities (iii) holidays;
    • include an assessment of Mr Y’s mental capacity;
    • detail which needs a carer is ‘able and willing’ to meet;
    • detail unmet eligible needs the Council will meet;
    • detail Ms X’s needs as a carer; and
    • consider whether a personal budget or direct payments are suitable for any further provision identified.

It will share a copy of the updated assessments and care plan with Ms X and us.

  • Make a financial payment to Ms X of £100 a week (calculated from September 2016) to recognise her time and expenses (and those of friends) providing unpaid care to transport Mr Y. This payment also recognises Ms X was not able to seek employment and later, when she became unwell, was caused additional stress finding alternative drivers. Payments will continue until new  arrangements are in place so that Ms X is no longer responsible for driving Mr Y to college.
  • Pay Ms X £1,500 in recognition of:
    • the seven months delay in providing social care support between September 2016 and March 2017 during which time Ms X had to support Mr Y at activities; and 
    • the uncertainty whether a more thorough social care assessment may have led to a higher level of support being provided, including for Ms X’s own needs.
  • Pay Mr Y £300 for the loss of one term’s additional therapist input due to the delayed EHC assessment and subsequent appeal.
  • Pay Ms X £300 for her time and trouble pursuing the complaint.

Within three months:

  • Update its Local Offer to show how it currently assesses eligibility for transport for post-19 learners. Once a formal policy on post-19 transport is approved this should be made available via the Local Offer and on the Council’s website. The Council has agreed to consider complaint, mediation and appeal mechanisms when drafting the new policy.
  • Consider whether, as a result of our findings, it needs to change policies, review guidance or provide refresher training to ensure:
    • EHC assessments are carried out in a timely way and always include consideration of social care needs; 
    • officers across relevant departments are clear about transport duties for learners aged 0-25;
    • it has the correct mediation arrangements in place and the correct information about mediation is available to all relevant officers and families; and
    • transitioning planning is in place that considers the care needs of young people before they reach 18 and the changing needs of their carers.

The Council will prepare a report of its findings and share it with us.

Within six weeks the Council will review the cases of young people (19-25) who have an EHC plan naming an educational setting, but who are not currently receiving free transport, and report its findings to us. The review will consider if others have been similarly affected by errors in the application of s.508F Education Act or the way the Council has considered DLA and mobility cars.

We welcome the fact that the Council has now accepted our recommendations, but regret the time it has taken for the Council to reach this position, which has necessitated the issue of this report and led to Ms X and Mr Y having to wait longer for the Council to review its previous decisions.

Ombudsman satisfied with council's reponse: 26 April 2019.


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