Hertfordshire County Council (17 013 361)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 16 Apr 2018

The Ombudsman's final decision:

Summary: The Ombudsman finds that the Council is at fault for failing to properly consider a young person’s transport needs. The Council has agreed to hear the transport appeal again. The Ombudsman finds that the Council is at fault for delay in implementing special educational provision and not considering a request for direct payments. The Council has agreed to review its procedures and apologise.

The complaint

  1. A woman I will call Ms Y complains that:
      1. School transport for her elder daughter, who I will call C, has stopped, when C’s needs have not changed and according to the relevant law she should still receive it;
      2. The Council has not complied with a tribunal’s direction to put cognitive behavioural therapy (CBT) in place for her younger daughter, who I will call D.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered information provided by Ms Y, the Council and C. I took account of relevant law, policy and guidance.
  2. I shared a draft of this decision with Ms Y and the Council and considered their comments.

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What I found

  1. Children who have special educational needs may have an Education Health and Care Plan (EHC Plan). This sets out the child’s special educational needs and the provision needed to meet them. Local authorities have a duty to secure the special educational provision set out in an EHC Plan, unless the parent or young person has made suitable alternative arrangements. (Children and Families Act 2014 section 42)
  2. Statutory guidance about transport for young people of sixth form age says they should be able to reach their place of education without such difficulty that they are prevented from benefitting from it. They should not have to make several changes of transport if this would cause an unreasonably long journey. Best practice is that they may be expected to travel up to 75 minutes each way. The guidance says the transport needs of young people with special educational needs and disabilities should be reassessed when they move to post-16 education. There is no entitlement to transport to and from the school named in an EHC Plan. Support with transport is down to the council’s policy. (Post-16 transport to education and training, Department for Education, 2014)
  3. The Council’s policy on 16-18 transport says it will assess the travel needs of young people with learning difficulties or disabilities on an individual basis. It will consider transport by taxi only in exceptional circumstances connected to the young person’s learning difficulties or disabilities, where there is no alternative way of travelling.
  4. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Chamber of the First Tier Tribunal (‘SEND’))
  5. A parent or young person can ask for a personal budget, including direct payments, when either a draft EHC Plan is being prepared or it is being reviewed or reassessed. When someone asks for direct payments, with which the family can spend the personal budget themselves, the council must consider this. (Special Educational Needs (Personal Budgets) Regulations 2014)
  6. When a council makes a direct payment for special educational provision, this is treated as the council having secured the provision. (Children and Families Act 2014 section 49)
  7. CBT is a talking therapy which teaches people ways of coping with different problems, including anxiety disorders. It is usually a short term treatment, delivered by healthcare professionals in the NHS, or privately. There is a register of accredited CBT therapists.

What happened with C

  1. C was born in the year 2000. The Council provided her with taxis to college from September 2016 while the Council was producing her EHC Plan.
  2. In November, after the Council had produced C’s EHC Plan, it wrote to Ms Y to say C’s taxis would stop from December. However, due to an error, the taxi company continued to transport her to college until April 2017.
  3. In June 2017, a panel considered Ms Y’s appeal against C’s transport being stopped. The panel said the Council had not assessed C’s transport needs, had not taken account of her ability to travel independently, had not considered the complexity of C’s journey, and thought she went to a different campus of the college than she did. It said since the taxi was withdrawn C had to leave home to catch the 7:13am bus and did not get home until around 7pm. C said she had to take three buses, and the journey took 90 minutes. She found the travelling difficult since she sometimes urgently needed the toilet due to her medical condition, and she was finding it harder to keep up with her work. She found it painful to walk sometimes because of a problem with her hip.
  4. The panel wrote to Ms Y on 21 June to say the taxi should be reinstated until the end of the school year, and C’s travel needs should be assessed in her July EHC Plan review, for the following school year.
  5. Also in June, Ms Y applied for transport for C from September. The Council asked her for medical evidence that C could not travel to college independently.
  6. In July Ms Y’s advocate emailed the Council to say C’s GP wanted a fee to provide a letter about C’s needs, and asked whether the Council would pay it. The Council refused.
  7. C’s EHC Plan of 16 August does not refer to her transport needs or ability to travel independently.
  8. On 17 August, the Council emailed Ms Y to say if she could not provide evidence from a medical or professional about why C needed transport it would provide a bus pass, or if she explained why C could not travel independently she could appeal again.
  9. The Council also asked C’s college whether she could travel independently, and whether using public transport had affected the quality of her work or punctuality. The college replied that it felt she could travel independently. It said it had no evidence for this except that she was on a level 3 course (A level equivalent), did not have a physical disability and used public transport for social purposes. It said C appeared capable and happy, however her journey was very long which would have an impact on any student and could make them late. It said it did not see a substantial change in her attendance or punctuality when she started using public transport in April.
  10. The Council wrote to Ms Y on 30 August. It said C could not have a taxi because she could travel independently by public transport and there was no evidence she could not. It said it could not provide taxis if she could travel independently, but she could have a bus pass.
  11. Ms Y appealed again. She said C found the journey difficult, she had difficulties with her hip and with needing the toilet, and she would find it difficult to transfer to another college because she struggled with social situations and meeting new people. She provided a letter from the hospital treating C, which says that C has IBS with constipation and a history of reflux.
  12. The college emailed the Council again on 21 September. It said it had seen C walking to the shops and using public transport without issues. She had changed her mind about leaving the college after one year, and the only reason it could see that she should not go to a nearer college was her friends. It said its students with transport were those who had significant issues moving around the campus independently and could not safely travel alone.
  13. In a letter dated 17 October the Council told Ms Y that her appeal was not upheld. It said it had taken into account that C had to get three buses to college, that it could take her up to two hours, that her health needs and difficulties could make travelling more difficult, and that travelling by bus could affect her attendance and punctuality. It said the college had provided evidence that C could travel independently and was succeeding in her course. It noted that Ms Y had said she could not afford the cost of medical evidence about whether C’s needs meant she needed taxis.
  14. In response to my enquiries, the Council said it will only consider providing a taxi if pupils cannot travel to and from college independently. It said when it is not clear in an EHC Plan whether they can travel independently then it needs written evidence from a medical professional familiar with the child explaining why they cannot travel independently. It said it told Ms Y several times that it needed this medical evidence but she had not supplied it. It said C could have a free bus pass because the family met the low income criteria, but Ms Y had been offered this and not accepted it. The Council said it would not cover the cost of getting medical evidence because “it is important to maintain a consistent approach for all families”.

Analysis of what happened with C

  1. The appeal panel of June said C’s travel needs should be considered when her EHC Plan was reviewed, but the Council did not do this, as it should have.
  2. While the Council asked the college for evidence of whether C could travel independently, much of its response was based on the fact it saw that she did travel independently. I have seen no evidence that the college or the Council discussed the matter with C, to find out how she experienced it and how it affected her. I have seen no evidence that the Council took account of what C told the June panel about how the journey affected her when it considered the new application. Therefore, there was no proper consideration of whether the journey caused her undue difficulty or stress.
  3. Ms Y says C should have taxis because her medical conditions make it difficult for her to travel by bus. The Council was entitled to ask for evidence of this. The Council told me Ms Y did not provide evidence or explanation of why she could not afford to pay for medical evidence. But Ms Y provided the Council with evidence that she receives benefits. The Council accepts that the family has a low income. £32 is a significant proportion of Ms Y’s weekly income. Therefore, I do not accept that Ms Y did not provide evidence of why she could not afford to pay for the medical evidence.
  4. I consider that if the Council felt it needed evidence from a medical professional, it should either have properly considered paying for the medical evidence itself, or it should have looked at other ways of getting medical evidence, such as getting C’s consent to have a telephone conversation with the GP. Not ensuring medical evidence could be provided for the appeal prevented the appeal from being properly considered. The Council should not have a blanket approach that it will never pay for medical evidence, regardless of the circumstances.
  5. For these reasons, I find that the Council was at fault for failing to assess C’s travel needs in her EHC Plan review, and for failing to properly consider the appeal. Because of this, C lost the opportunity to have her appeal properly heard. However, I cannot say what the outcome of the appeal would have been if not for the fault.

What happened with D

  1. D, born in 2001, has difficulties with social anxiety and a history of not attending school. Ms Y got a private educational psychologist’s report in December 2014 which said D needed CBT. The Council’s educational psychologist said in July 2016 that D may find an approach “rooted in cognitive behavioural thinking” helpful.
  2. Ms Y appealed to the SEND tribunal about the content of D’s EHC Plans. In February 2017, the Council told the tribunal it was looking for an alternative provider than CAMHS (child and adolescent mental health services) to provide D with CBT, since D had not engaged with CAMHS. Ms Y asked the Council for a specialist school to be named on D’s EHC Plan so she could get CBT there.
  3. In April, Ms Y emailed the Council with details of a private CBT therapist she had found who could provide D with therapy. Ms Y said she understood that D should be able to have a personal budget, and asked for one to pay for the CBT. Ms Y also asked the tribunal for a Direct Payment to commission CBT for D herself, and the tribunal said this was a matter for the Council and Ms Y.
  4. The tribunal decided in August that CBT should be named in D’s EHC Plan as special educational provision, provided by “an appropriately qualified specialist psychologist”.
  5. The Council issued an amended EHC Plan for D on 15 September. It named the specialist school, and included that D should have CBT as special educational provision. The document says a personal budget had been discussed with Ms Y but had not been requested.
  6. On 20 September, the Council emailed Ms Y to say the specialist school could provide D’s CBT. The school emailed the Council on 25 September to say D was uncomfortable with having CBT provided by her school.
  7. Internal emails provided by the Council show that during October the Council tried to find one of its internal educational psychologists who was qualified to provide CBT. It was unsuccessful.
  8. On 8 November, Ms Y asked for an update on D’s CBT, and again requested a personal budget. The Council noted on 15 November that it had exhausted options for finding a psychologist internally who could provide the therapy, and it would try to commission one. On 21 November the Council emailed the local Clinical Commissioning Group for advice. It told Ms Y the next day that it was continuing to look for CBT and liaising with the British Psychological Society.
  9. Internal emails of early December 2017 show that the Council liaised with a neighbouring local authority and with the CAMHS psychologist for advice about finding a CBT therapist.
  10. On 24 January 2018, the Council emailed Ms Y with details of a therapist it had found. D started to receive the therapy in February.

Analysis of what happened with D

  1. It was possible for D to have CBT at her school from soon after the tribunal’s decision. It was her choice not to accept it at school, and I understand her reasons for this. However, the Council was willing and able to comply with the tribunal’s direction at the time.
  2. That said, I have some concern about the delay from September onwards, after D said she did not want the therapy at school. Registers of accredited psychologists and CBT therapists are available, and can easily be found through an online search. I find it difficult to see why the Council spent several weeks establishing that its own educational psychologists were unable to deliver the CBT, when they are not from the specialism usually responsible for delivering CBT.
  3. Ms Y is unhappy that the Council would not provide her with a personal budget to pay for CBT for D herself. The Council told me that special educational provision is the Council’s responsibility to provide, and that a direct payment was not an option. This is incorrect. The Council could have provided a direct payment, and it was required to consider doing so. I cannot say what the outcome would have been, had the Council considered Ms Y’s request as it should have. However, there was a missed opportunity which may have resulted in CBT being available for D sooner.

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Agreed action

  1. Within one month, the Council should re-hear C’s transport appeal. It should document its assessment of C’s travel needs. It should document its consideration of whether it needs medical evidence for the appeal. If it considers that it does, it should document its consideration of whether it is reasonable to expect someone on a low income to pay for it in the particular circumstances of the case, and of any alternative ways of getting the evidence it requires.
  2. Within one month, the Council should apologise to Ms Y and C for failing to properly consider her travel needs and transport appeal.
  3. By the same date, the Council should explain to Ms Y the steps it has taken to prevent similar faults with school transport and requests for direct payments from happening again, either to her family or to other families in the Council’s area.
  4. Within one month, the Council should apologise to Ms Y and to D for failing to source a CBT therapist faster and for failing to consider the request for direct payments. D is now receiving CBT, so I make no further recommendation about her provision.
  5. The Council should provide evidence to the Ombudsman that it has done this.

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Decision

  1. I find that:
      1. The Council is at fault for not considering C’s travel needs when her EHC Plan was reviewed in August and for not properly considering her transport appeal. Losing the opportunity to have her travel needs and transport appeal properly considered is an injustice to C.
      2. The Council is at fault for causing some delay in D’s CBT provision and for failing to consider Ms Y’s request for direct payments to source the CBT herself. Losing the opportunity for CBT sooner is an injustice to D, albeit she refused the opportunity to have CBT sooner at school.
  2. I consider that the actions the Council has agreed to take will adequately remedy the injustice. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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