Newcastle upon Tyne City Council (18 007 248)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 14 Jan 2019

The Ombudsman's final decision:

Summary: There was fault in the Council’s handling of an Education, Health and Care plan review for a disabled child, and in particular its decision about the administration of her emergency medicine on school transport. The Council will now ensure she is accompanied by an adult who can administer her medicine, and has also agreed to apologise for its poor handling of the complaint.

The complaint

  1. The complainant, to whom I will refer to as Ms H, says that the Council has failed to provide her daughter, T, with safe transport arrangements for her journey to and from school. She also complains that the Council has failed to engage properly with her during the Education, Health and Care (EHC) plan review process.

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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)

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How I considered this complaint

  1. I reviewed L’s EHC plan and medical information, Ms H’s representations to the Council, and a chronology provided by the Council. I also asked the Council for its comments on several issues.
  2. I sent a draft copy of this decision to both parties for their comments.

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What I found

  1. T suffers from a rare genetic disorder, and attends a special school maintained by the Council.
  2. One of the symptoms of T’s condition is frequent epileptic seizures. She has been prescribed an emergency ‘rescue medicine’, which is to be administered orally when a seizure lasts longer than five minutes. The medicine is a liquid, which comes in a pre-measured dose in a syringe.
  3. T started school in September 2016. There is a school bus, which T used on her first day. However, Ms H was then told that the adult supervisors on the bus would not be able to administer the emergency medicine, and would only be able to call an ambulance if T were to have a seizure of more than five minutes. Ms H decided to withdraw T from the bus service.
  4. As an alternative, the Council agreed to provide a personal travel budget, to pay for Ms H’s parents to drive T to and from school instead. However, Ms H’s father has his own health problems, and is no longer able to do this.
  5. The first review of T’s EHC plan took place between March and May 2017.
  6. On 10 September, Ms H wrote to the Council complaining about the transport arrangements.
  7. The Council responded on 20 February 2018. It explained it could not provide medically-trained escorts for school transport. This was because it contracted the service out and so had no direct control over the drivers or escorts.
  8. The Council said T’s school had a number of pupils with similar emergency medicine for seizures. In case of a seizure lasting longer than five minutes, the school staff would administer the medicine. However, where no trained adult was available, the children’s plans said that staff would instead call an ambulance.
  9. The second review of T’s EHC plan began in March 2018. On 23 July, the Council issued a draft amended plan. On 6 August, Ms H made representations, including a letter from T’s consultant neurologist explaining the importance of rapid administration of the medicine.
  10. Ms H then complained to the Ombudsman on 7 August. She explained that the Council had consistently failed to engage with since T’s original EHC plan was issued.
  11. The Ombudsman made preliminary enquiries with the Council in September and October. The Council said it had not received a response from Ms H to the draft amended EHC plan.
  12. On 23 November, the Council confirmed that it had, in fact, received Ms H’s representations of 6 August. It said it had now issued a final amended EHC plan. However, the plan still did not provide for a medically-trained escort for T.

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Statutory guidance

  1. The ‘Home-to-school travel and transport guidance’ of July 2014 provides statutory guidance to local authorities for administering its school transport scheme. At paragraph 44, it says:

All local authorities should ensure that all drivers and escorts taking pupils to and from school and related services have undertaken appropriate training, and that this is kept up to date. It is also considered good practice for those responsible for planning and managing school transport to have undertaken appropriate equality training. This training could consist of (but is not restricted to):

  • an awareness of different types of disability including hidden disabilities;
  • an awareness of what constitutes discrimination;
  • training in the necessary skills to recognise, support and manage pupils with different types of disabilities, including hidden disabilities and certain

behaviour that may be associated with such disabilities;

  • training in the skills necessary to communicate appropriately with pupils with all types of different disabilities, including the hidden disabilities; and
  • training in the implementation of health care protocols to cover emergency

procedures.

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Analysis

  1. Ms H considers that the Council should provide an escort trained to administer T’s emergency medicine during the journey to and from school. This could either be on the school bus, or in a taxi.
  2. The Council says that it cannot do this. It has instead been paying a personal travel budget, which Ms H has been using to allow her parents to drive T to and from school, and to administer her medicine if needed. However, Ms H says that this is not likely to remain a viable option in the long term.
  3. I have asked the Council to explain why its escorts are unable to administer T’s emergency medicine.
  4. The Council says that its Special Educational Need and Disability (SEND) transport is contracted out. It does not directly control whom the contractors employ, and that there can be frequent change in the staff members involved.
  5. For those children in its area who do need medical support during transport, it provides the transport, but expects the medical element to be provided either by healthcare, the school or the parent(s) / guardian(s). The Council considers that it is “unsafe and placing an excessive burden of responsibility on the contractor and their staff to expect them to administer emergency medication”. The Council also says that there is no requirement in its contract for transport staff to have First Aid training.
  6. However, I find significant fault in how the Council has considered this matter.
  7. In its letter to me, the Council said “the medical advice for [T’s plan] did not state that she would need a trained person with her at all times”.
  8. This is demonstrably wrong. In her representations to the Council in August, Ms H included a letter from T’s consultant neurologist of March 2018. This letter says:

In a child with [T’s] seizure frequency and severity, I would strongly recommend that she has access to emergency medication and an appropriate adult who can administer the medication, at all times. [emphasis mine]

  1. The letter explains that a seizure which lasts longer than five minutes can continue until the person enters ‘status epilepticus’ – which carries a significant risk of brain damage or death.
  2. The Council says that, in the event of an emergency during the journey, transport staff will call 999 and wait for an ambulance.
  3. But T’s emergency plan, compiled by a specialist nurse in September 2017, gives instructions on how to administer her medicine. One instruction is to “keep the empty syringe to show paramedics”, demonstrating that summoning an ambulance is part of the emergency procedure, whether the medicine is given or not.
  4. I consider the evidence to be clear that calling 999 is not simply an alternative to giving the medicine. There is no guarantee that paramedics would be able to reach T in time to prevent the extremely serious consequences outlined in the consultant neurologist’s letter.
  5. The Council says that the children in its area who do have medical support on transport are subject to continuing healthcare (CHC) funding. It is not the Council which provides the medical support itself.
  6. While I accept that T does not have CHC funding, I cannot accept that this is a genuine obstacle to training escorts to administer the medicine.
  7. The emergency plan explains how to do this. There is nothing technical about it – the liquid is simply to be squirted into T’s mouth. Nothing in the emergency plan suggests that a person needs to be specially qualified. The fact that staff at the school can give the medicine is clear evidence of this.
  8. I also note the neurologist’s letter explains that training in the administration of the medicine can be provided by contacting relevant nursing team at the local children’s hospital.
  9. The statutory guidance creates a general requirement for school transport arrangements to be safe. More specifically, however, it says that local authorities should ensure that drivers and escorts have undertaken “appropriate training”.
  10. ‘Appropriate training’ is not formally defined in the statutory guidance, but it provides a list of suggested training. This includes training in the ‘implementation of health care protocols to cover emergency procedures’.
  11. I accept that, realistically, this could not be intended to cover all medical procedures. Many are highly technical, and would require specialist qualification and equipment. But I do not consider that the administration of T’s emergency medicine could reasonably be said to fall into this category.
  12. And so, I find the Council’s argument – that a lack of CHC funding presents an obstacle – is unsupported by the evidence. This is fault.
  13. Nor do I understand why the Council considers that it would be an unreasonable burden on the escorts to ask them to administer the medicine. There does not appear to be any risk to the process, it is not invasive and there is no possibility of overdose. The worst possible scenario I can imagine is that the medicine would simply not work.
  14. The Council has accepted a duty to provide T with school transport. It has also accepted that school staff should be ready to administer her medicine.
  15. This being the case, I find it significant fault that the Council does not consider it necessary for the transport escorts to be able to administer the medicine as well. Failing to do so could have drastic consequences for T, and calling an ambulance would not, in isolation, mitigate this risk.
  16. This fault has created a situation where T cannot safely use the school transport for which she is eligible, which is a very serious injustice.
  17. Ms H has also complained about poor communications by the Council, and a lack of engagement with her about the medication issue.
  18. She says that, since the Council became involved with T, she has made numerous calls to the SEND team, but has never been able to have a substantive conservation with staff there. The only correspondence she has received from the Council has been copies of the draft and final amended EHC plans, with the single exception of the Council’s letter of 20 February 2018.
  19. I cannot comprehensively investigate Ms H’s contact with the Council and its responses, and so I cannot draw conclusions on whether it has, for example, returned her phone calls in a timely manner. However, the evidence I have highlights two specific points.
  20. First, the letter of 20 February 2018 says that it is a response to Ms H’s letter of 10 September 2017. It is a relatively short letter, and does not suggest that there has been any in-depth investigation of her complaint; so I cannot see why it should have taken more than five months for the Council to send this to Ms H.
  21. In response to my draft decision, the Council accepted that its response was unduly delayed. It said it had sent a partial response within its corporate timescales, but due to the absence of key staff member, Ms H was not informed there would be a delay in the full response. When the complaint was eventually picked up by a manager, the absence of another key staff member also created a further delay in the response.
  22. I appreciate that Council staff absences can disrupt the normal flow of work. However, either way I must find fault in the failure to respond in a timely manner is fault, and I consider it caused Ms H an injustice by leaving her in a position of uncertainty. The Council accepts this and has agreed to provide her with a formal apology.
  23. I also note the issues surrounding the most recent review of T’s EHC plan. The Council sent the draft plan to Ms H on 23 July. She responded with her representations in a letter dated 6 August.
  24. But during our initial enquiries on this case, the Council told the Ombudsman that it had not received any response from Ms H. It then belatedly confirmed, on 23 November, that it had received this.
  25. More significantly, however, the Council also confirmed at this point that it had not previously issued the final EHC plan.
  26. The Special Educational Needs and Disability Regulations 2014 set out the timescales to which authorities must adhere during the EHC plan review process. If it intends to amend a plan, it must send a draft copy to the child’s parent or guardian, and give them at least fifteen days to make representations.
  27. Whether or not the Council decides to proceed with the amendments, it then has a further eight weeks to issue a final plan.
  28. Ms H made representations on the draft plan on 6 August. The Council now says it received these on 8 August. Taking into account the August Bank Holiday, it then had until 4 October to issue the final plan.
  29. The Council has explained that its procedure for recording incoming correspondence was not followed when it received Ms H’s representations, and this is why it believed she had not responded. This is fault, although I accept that administrative errors of this type will happen from time to time. The Council says managers will conduct additional quality checks in future to avoid a recurrence.
  30. However, even if Ms H had not made representations, the Council still had a duty to issue a final plan on time. It appears to me that Ms H’s deadline for making representations was 10 August. The next working day after this deadline was 13 August, and so the Council should rightfully have issued the final plan by 9 October.
  31. So, in either case, the Council missed this deadline by a substantial margin.
  32. EHC plans carry a right of appeal to the SEND Tribunal. The Tribunal has the power to give binding directions to local authorities on the education elements of the plan; on health and social care elements, it has the power to make non-binding recommendations.
  33. However, this appeal right is not triggered until the local authority has issued a final plan.
  34. As I understand it, Ms H has not sought to appeal T’s plan with the Tribunal, either in its current iteration or a previous one. There is also no suggestion that the lack of a final plan led to any loss of provision for T. For this reason, I cannot see that the Council’s delay in issuing the final plan has, in itself, created a separate injustice.
  35. However, I do still consider this to be an additional point of fault.

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Summary

  1. I have found significant fault and injustice in the Council’s decision that the SEND transport escorts will not administer T’s emergency medicine.
  2. I have found fault causing injustice in the Council’s delayed response to Ms H’s letter of 10 September 2017.
  3. I have also found fault, but not causing a separate injustice, in the Council’s poor handing of the most recent review.

Agreed action

  1. The Council has agreed, within one month of the date of this decision, to ensure T is accompanied on school transport by an adult trained to administer the rescue medicine. It has already arranged a preliminary meeting with Ms H and other interested parties, but should advise the Ombudsman once suitable arrangements are in place.
  2. The Council has also agreed to write a formal apology letter to Ms H for the poor handling of her complaint letter.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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