Summary: Mrs X complains about the way the Council considered her requests for school transport for her son, Y. She also complains it has failed to arrange adequate physiotherapy provision or respite care for him, despite this being stipulated in his Education, Health and Care Plan. The Ombudsman has found the Council was at fault for taking too long to consider Mrs X’s request for home-to-school transport. It was also at fault for not considering the part of her complaint about respite care under the children’s statutory complaints procedure. Furthermore, it was at fault for not informing her that it would not amend her son’s plan, following the annual review in October 2018. Consequently, we have made several recommendations to remedy the injustice caused by these faults. The Council has agreed to carry out these recommendations.

The complaint

1. The complainant, who I shall refer to as Mrs X, complains about the way the Council considered her requests for school transport for her son, Y. She also complains it has failed to arrange adequate physiotherapy provision or respite care for him, despite this being stipulated in his Education, Health and Care Plan (EHCP) and him having a diagnosis of hypermobility.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
7. 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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How I considered this complaint

8. I have:
• Read Mrs X’s complaint and considered the documents she provided in support of it.
• Considered the Council’s comments about the complaint and the supporting documents it provided.
• Provided both parties with an opportunity to comment on the draft decision, then considered the comments that were made and issued a second, revised draft decision.

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What I found

9. Y lives at home with his parents and siblings. He has been diagnosed with various conditions, including autism, and requires constant supervision to ensure his complex needs are met. In July 2017 he was aged 11.
10. In August 2017, the Council issued Y a final EHCP after the Special Educational Needs and Disability (SEND) Tribunal had decided an appeal submitted by Mrs X and her husband. They wanted their son to attend a 52-week residential placement instead of the day placement he was attending at the time. The Tribunal decided there was no educational need for the latter and Y was well placed in his day provision. However, it instructed that an amended EHCP be issued after the parties had agreed changes to Section B of the plan.
11. The new EHCP stated a physiotherapist would provide strategies to help Y meet his educational outcomes. Under social care provision, it said he was entitled to six nights of overnight respite per month at one of the Council’s residential placements. However, it noted Mrs X and her husband did not want their son to use this provision and the matter was in the process of being reviewed.
12. In November 2017, the Council initiated a child and family assessment after Y had been diagnosed with epilepsy and diabetes. It also initiated a Section 47 safeguarding enquiry to ascertain whether he was at risk of significant harm after an incident at home involving Mrs X caused him to be hospitalised.
13. In the middle of December 2017, the Council concluded its safeguarding enquiry and found Mrs X was acting in her son’s best interest. Consequently, it decided no further action was required.
14. At the end of the month, the Council completed the child and family assessment. It noted that Y had received respite care six nights per month from one of its residential placements between December 2015 and November 2016, but Mrs X ended this arrangement as she was concerned about bruises he had sustained whilst receiving this provision. It said Mrs X’s concerns had been investigated but not substantiated. It also said no overnight respite provision was being attended by Y, despite there being a need and recommended that this be sought. However, it highlighted there was a lack of provision in the area which could meet Y’s needs.
15. At the beginning of January 2018, Mrs X emailed the Council and requested an urgent review of her son’s EHCP following his diagnosis of epilepsy and diabetes. Within her request, she asked that the provision of home-to-school transport be included in an amended plan.
16. Shortly after this, the Council contacted the trust in charge of Y’s school and another provider to check whether they could offer him any overnight respite care. At the end of the month, the trust notified the Council it did not have any space available to offer Y this provision.
17. At the beginning of February 2018, the Council reviewed Y’s Child-in-Need (CiN) plan. Whilst conducting the review, it noted the search for overnight respite care was continuing and it had contacted the trust several times about this matter.
18. In the middle of the month, a meeting was held so the urgent review of Y’s EHCP could take place.
19. In mid-May 2018, the Council issued Y a new EHCP. There was no change to his physiotherapy provision, however the new plan removed the requirement for six nights of overnight respite care per month at one of the Council’s residential placements. Instead, it stated the search for overnight provision was ongoing and yet to be sourced. Nevertheless, it did state Y would receive five hours of support from a private care provider every Sunday, plus an additional 10 hours during the school holidays.
20. At the beginning of October 2018, the annual review meeting to discuss Y’s EHCP took place at his school. It was noted Mrs X and her husband felt their son’s independence would be increased if he were to start receiving home-to-school transport. They also said Y’s GP had suggested that he receive physiotherapy following an incident where he had dislocated his knee. The school’s physiotherapist suggested that 15 minutes of provision per week over 38 weeks would work better than a single block of six hours. She also said the school could provide support both at home and in school.
21. In conclusion, Mrs X and her husband agreed to obtain a letter from their son’s GP about his physiotherapy needs and send this to his school. Regarding the plan, the school felt the current provision was not appropriate and the sections relating to mental health and physiotherapy needed to be amended.
22. Around the same time, the Council reviewed the CiN plan. It noted Mrs X had requested overnight respite care from the trust and it had agreed to assess him for a place.
23. A few days later, Mrs X submitted an application to the Council requesting home-to-school transport. On the form, she stated the school Y was attending had been chosen by the Council as it was able to meet his needs and was not parental preference.
24. In the middle of the month, the Council initiated another child and family assessment.
25. At the end of the month, the Council wrote to Mrs X to inform her it had decided to award home-to-school transport to Y.
26. At the beginning of November 2018, the Council wrote to Mrs X again to inform her it had changed its decision and Y was no longer eligible. It said this was because the decision to place him at his current school was hers, but this was not the nearest school available and she did not state this on the application form.
27. In the middle of the month, the Council noted it had emailed Mr X to request a meeting to discuss the ongoing assessment. It stated this was its third request but Mrs X was contesting the EHCP and was reluctant to meet.
28. At the end of the month, the Council completed the child and family assessment. It noted it was yet to find a provider which could offer the overnight respite care that Y needed and again highlighted there was a lack of provision in the area. It said Mrs X and her husband wanted the trust to deliver this provision, adding efforts to arrange this were ongoing. Regarding physiotherapy provision, it said this was in place and was working well in school.
29. The assessment also discussed the home-to-school transport arrangements that had briefly been put in place. It said Y was anxious about using this transport and discussed how he could be supported to manage this change. In addition, it noted completion of the EHCP was ongoing and indicated that disagreements about the content of the plan were slowing down this process.
30. At the beginning of December 2018, the Council sent a copy of its assessment to Mrs X. A few days later, she emailed it in response and said she could not find any outcomes relating to the three areas that she and her husband requested be included in the EHCP. These areas related to physiotherapy, school transport, and overnight respite care. She noted the first issue had been resolved but the other two had not.
31. In the middle of the month, Mrs X submitted a complaint to the Council about these matters. Regarding transport, she said this had been verbally agreed but was not in place. She also stated respite cover had not been arranged during the school holidays, despite this being in the EHCP.
32. The Council responded shortly after and said it had contacted the trust about the overnight respite provision, but no one was available to discuss the matter because of the forthcoming holidays. It said it would contact the trust again in the new year to address the matter. It noted physiotherapy was in place and the school had agreed to provide “additional therapeutic interventions with immediate effect”, integrated into Y’s existing physio plan. However, it accepted there had been a misunderstanding about the transport and apologised for this. It said it would reconsider Mrs X’s request and noted a meeting would be setup in the new year to try and resolve her outstanding concerns.
33. At the beginning of January 2019, Mrs X contacted the Council to hasten a response to the concerns she had raised the previous month. In response, it started to address these and in the middle of the month it emailed her to provide an update on what was happening. It said it would arrange interim transport whilst Y’s application was being reassessed and noted it was awaiting a response from the trust about whether it could provide respite care. Regarding the physiotherapy, it confirmed Mrs X’s concerns related to provision out with school and it was liaising with their physiotherapist about the matter.
34. A few days later, the Council’s Assistant Director for Education wrote to Mrs X and referred to a telephone conversation they had earlier that week. He confirmed that transport would be provided to Y whilst the reassessment was taking place and apologised for the confusion caused by this matter. In relation to physiotherapy provision, he said he understood Mrs X was happy with the provision in school and stated any provision of respite care would take Y’s physiotherapy needs into account. Finally, he noted Y was entitled to respite care and highlighted the residential placement which he previously attended was still available to him, regardless of Mrs X’s concerns. He added the Council had searched for an alternative placement but her preferred option was unable to offer any provision.
35. Toward the end of the month, the Council’s Statutory Reviewing Panel sat and decided the school that Y was attending was now the nearest one which could meet his needs. It reached this conclusion after it consulted the school considered the nearest at the time and was told his needs could not be met there. Consequently, it confirmed that Y would receive home-to-school transport.
36. On the same day, Mrs X submitted another complaint to the Council stating she was not content with the response that had been provided by the Assistant Director for Education. The next day, the Complaints Team responded and said it had forwarded her initial complaint to Pupil Support Services for a response. It accepted it should have notified her it had done this and noted she had since received a response from the Assistant Director. It confirmed she had now exhausted the Council’s complaint procedure and stated she should complain to the Ombudsman if she was unhappy with the outcome.
37. In mid-February 2019, the trust confirmed it was still not able to offer him any respite care.
38. At the beginning of March 2019, Mrs X complained to the Ombudsman. In addition to the points already raised, she says she expended a lot of time and effort trying to secure home-to-school transport and had to submit a complaint to do so. She also states she incurred expenses when transport was not in place and had to take Y to school. Furthermore, she says its failure to arrange suitable physiotherapy and respite provision has had a negative impact on her son’s health.
39. To remedy the situation, she wants the Council to reimburse her the costs she incurred when transporting Y to and from school, from the date his first annual review was held there. She also wants it to make a financial payment to Y in recognition of the provision he has lost. Moreover, she wants it to provide him with access to a 52-week therapeutic programme to meet his physiotherapy needs, and offer more options for his respite care other than the providers it has already quoted.

Analysis

40. There are three parts to Mrs X’s complaint; the first concerns the request for home-to-school transport, the second the overnight and holiday respite care, and the third the physiotherapy provision. I will address each part in turn.

Request for home-to-school transport

41. The Council first considered Mrs X’s request for transport after she submitted an application in October 2018. I have not seen any evidence that it considered the request she made in January 2018 when she asked for an urgent review of Y’s EHCP. The Council’s Home-to-School Transport Policy says the provision of transport will be reviewed when the annual review of an EHCP takes place. I would expect this to also include urgent reviews, especially when a child’s needs have changed significantly. However, there is no evidence which shows the matter was considered at the urgent review meeting which took place in mid-February 2018.
42. The Council asserts this part of its Home-to-School Transport Policy only applies when transport arrangements are already in place. For reference, its Policy states:

“If children have a statement of special educational needs/Education, Health and Care Plan, their transport provision will be reviewed during the annual review”

43. I accept the wording of the Policy is open to interpretation. However, in this case Mrs X had made an explicit request for transport alongside her request for an urgent review. At the very least, the Council should have advised her to submit a school transport application at the time. Similarly, it could have considered her transport request within the review process and facilitated an application, given the difficulties that Mrs X and her family were facing at the time. However, I have not seen any evidence that it did either.
44. In addition, the SEN Code of Practice implies that Mrs X’s transport request and any subsequent assessment should not have been delayed, even if if the intention was to deal with it under the review process. The guidance states:

“Where particular services are assessed as being needed, such as those resulting from statutory social care assessments under the Children Act 1989 or adult social care legislation, their provision should be delivered in line with the relevant statutory guidance and should not be delayed until the EHC plan is complete.”

45. When the Council considered her request in October 2018 it granted transport but decided to retract its offer shortly after making this decision. This was because the school Y was attending was not classified as the school nearest to his home which could meet his needs. However, Y’s needs had changed significantly since this decision was first made as he had been diagnosed with epilepsy and diabetes. Consequently, in January 2019 the Council contacted the school it considered the nearest to Y’s home and discovered it could not meet his needs. It therefore decided the school he was attending was now the nearest which could meet his needs, meaning he was now eligible for home-to-school transport.
46. Consequently, I have found the Council was at fault for taking too long to consider Mrs X’s request for home-to-school transport. It should have considered the request when it was initially made in January 2018, but it failed to do this. Likewise, it did not properly consider the request she made in October 2018 and only rectified this issue when Mrs had complained about the matter.
47. I cannot say with any certainty that the Council would have granted transport in January 2018 if it had considered Mrs X’s request. This is because it would have assessed Y’s needs and considered various factors before deciding whether transport was required. These factors would have included Y’s age, his development, whether his needs had changed, his stage of education, and whether the school nearest to his home could meet his needs. These factors were subject to change over the course of a year therefore I cannot say for certain that the decision to grant transport in January 2019 would have been made in January 2018, had the Council considered Mrs X’s request.
48. However, given that Y’s needs had changed significantly it is likely that he would have been eligible to receive transport at some point in 2018. The Council has offered to reimburse Mrs X the cost of transport from the date the amended EHCP was issued in May 2018. Given that I cannot say for certain that transport would have been awarded in January 2018, I have decided this offer adequately remedies the injustice caused by the Council’s fault and have recommended it conveys this offer to Mrs X.
49. The Council’s failure to consider Mrs X’s application caused her undue stress and frustration, as she felt she was not getting the support she needed. The fault also caused Y distress as its decision to grant transport, then stop it, then start it again made it harder for him to adapt to the change. Considering this injustice, I have also recommended the Council makes a payment to Mrs X and Y for the distress it caused.

Overnight and holiday respite care

50. Although Mrs X complains the Council has not arranged the respite care detailed in Y’s EHCP, this is a complaint about the provision of social care, not educational provision. The need was identified in a child and family assessment carried out under Section 17 of the Children Act 1989 and is documented in Y’s CiN plan. It is also detailed in Section H of his EHCP, which lists social care provision.
51. The children’s statutory complaints procedure states that all functions of a local authority which fall under Part 3 of the Children Act 1989 should be dealt with under that procedure. This includes Section 17 of the Act and the provision of social care services. In this case, it is clear the Council did not deal with this part of Mrs X’s complaint under the children’s statutory complaints procedure. Consequently, I have found it was at fault for not doing so.
52. Despite this fault, I have considered whether to investigate Mrs X’s concerns rather than refer the matter back to the Council. However, I do not think this is justified. Firstly, the Council is under a statutory duty to follow this process and should do so. Secondly, the events complained about stretch back several years and there is a disagreement over whether the provision the Council has offered is suitable. This warrants further investigation which would be better conducted through the statutory process, so interviews of the relevant parties can take place. Thirdly, I see Mrs X has previously requested some form of independent oversight of her case. A statutory complaint investigation will be able to provide this. Consequently, I have recommended the Council initiates a stage two investigation into this part of Mrs X’s complaint under the children’s statutory complaints procedure.

Physiotherapy provision

53. The EHCP the Council issued in May 2018 stated a physiotherapist would provide strategies to help Y meet his educational outcomes. The evidence that I have seen indicates this level of provision was met, therefore I cannot find the Council was at fault here.
54. I note Mrs X made a request for out-of-school physiotherapy provision in the October 2018 annual review meeting and stated she would provide a GP letter evidencing this need. The school recommended that the EHCP be amended and it is clear this is what Mrs X wanted.
55. The SEN Code of Practice states local authorities must decide, within four weeks of a review meeting, whether they propose to amend a plan. If they decide not to do this, they must notify the child’s parents and make them aware of their right to appeal the decision to the SEND Tribunal.
56. In this case, the Council decided not to amend the plan. However, I have not seen any evidence that it notified Mrs X of its decision or her right to appeal to the SEND Tribunal. Therefore, it was at fault for not doing so. This deprived her of her right to appeal therefore I have recommended that it writes to her now to confirm it will not amend the plan. However, I have not made any further recommendations as the injustice caused is minimal. It is clear the school physiotherapist implemented a plan in response to Mrs X’s request and she did not present any medical evidence to the Council which justified a 52-week therapeutic programme. I understand Mrs X and her family have since moved to a new area, therefore she should approach her new local authority if she still feels the physiotherapy provision detailed in the EHCP should be amended.
57. On a related matter, I noted the child and family assessment that was completed by the Council at the end of December 2018 stated Mrs X should not fixate on “set times or dates” being included in the EHCP. It also stated plans were designed to be “flexible and changed along with need”. This statement is somewhat erroneous. The SEN Code of Practice states, “Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support”. This matter does not warrant a formal finding of fault, but the Council should reflect on it and ensure those officers who write EHCPs are aware of the need to follow the guidance in the SEN Code of Practice.

Agreed action

58. Within one month of the date of this final decision, the Council has agreed to:
• Pay Mrs X mileage at the rate specified in its Home-to-School Transport Policy at 45p per mile, for the period between mid-May 2018 and mid-January 2019. This should total approximately 127 school days, minus the days on which transport was briefly provided in the November/December 2018 period. Mrs X should be paid for the 36-mile journey she made each day (18 miles each way).
• Pay Mrs X £500 for the distress it caused her.
• Pay Y £300 for the distress it caused him.
• Initiate a stage two statutory investigation into the part of Mrs X’s complaint about respite care. This should be conducted in accordance with the children’s statutory complaints procedure, which is detailed in the document “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”. Moreover, if the Council is found to be at fault and this caused Mrs X or Y an injustice, it should use the Ombudsman’s Guidance on Remedies to consider what action it should take to remedy this injustice.
• Write to Mrs X and confirm it will not be amending Y’s EHCP following the annual review meeting conducted in October 2018.
59. It is important the Council takes steps to ensure the faults that have been identified do not reoccur. Therefore, within one month of the date of this final decision it has also agreed to:
• Send a copy of the final decision statement to all the officers involved in this complaint so they can read it and learn from it.
• Direct its complaint officers to familiarise themselves with the children’s statutory complaints procedure by reading the document “Getting the Best from Complaints: Social Care Complaints and Representations for Children, Young People and Others”.

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Final decision

60. The Council was at fault for taking too long to consider Mrs X’s request for home-to-school transport. It was also at fault for not considering the part of her complaint about respite care under the children’s statutory complaints procedure. Furthermore, it was at fault for not informing her that it would not amend her son’s EHCP, following the annual review in October 2018.

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Parts of the complaint that I did not investigate

61. I have not investigated whether the Council failed to arrange transport before the middle of December 2017. This is because Mrs X did not submit her complaint to the Council about this matter until mid-December 2018. Generally, I can only investigate those events which happened within 12 months of a complaint being made. Therefore, I have not investigated whether the Council might have been at fault in relation to this matter prior to mid-December 2017.

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Investigator's decision on behalf of the Ombudsman