Summary: Mrs M complained on behalf of herself and her adult daughter, Miss D. She complained about faults by City of Bradford Metropolitan District Council and NHS West Yorkshire Integrated Care Board leading to Miss D being unable to go to college and missing out on special educational provision. She also complained about poor communication by the organisations. We have upheld the complaint and found the faults caused significant injustice to Miss D and Mrs M. This includes Miss D missing all her education and essential special educational needs support for about 12 months. Mrs M could not take her usual breaks from her caring role, leaving her exhausted. The organisations’ faults also caused Mrs M avoidable distress and time and trouble. The organisations accepted our recommendations, so we have completed our investigation.

The complaint

1. Mrs M complained to the Ombudsmen on behalf of herself and her adult daughter, Miss D. Mrs M complained that:
• City of Bradford Metropolitan District Council (the Council) and NHS West Yorkshire Integrated Care Board (the ICB) failed to work together to ensure Miss D received appropriate transport to college with medically trained escorts between 1 July 2023 and 31 August 2024;
• the Council failed to ensure Miss D received the special educational provision named in Section F of her Education, Health and Care (EHC) Plan between 1 July 2023 and 31 August 2024;
• this has happened despite the Local Government and Social Care Ombudsman (LGSCO) upholding a related complaint against the Council in 2023 about the same issues. LGSCO’s decision concluded Miss D had missed six terms of education between 2021 and 2023; and
• the Council’s and ICB’s communication with Mrs M about this issue, including complaint handling, has been poor.
2. Mrs M told us this caused the following injustice to her and Miss D:
• Miss D could not attend college since 2023;
• Miss D missed a significant amount of the education named in section F of her EHC Plans valid between July 2023 and August 2024;
• this has had a severe negative impact on Miss D’s health, wellbeing and human rights as she has missed out on social and educational activities;
• Mrs M has experienced avoidable frustration and distress in following the issues up with professionals and chasing up information;
• the situation is all the more distressing for Mrs M since nothing seems to have improved since LGSCO upheld her previous complaint; and
• Mrs M had to step in to provide support to her daughter that the organisations should have provided as part of Miss D’s EHC Plan. This means Mrs M has not had the breaks from caring she should have had, if Miss D had been attending college. Mrs M says this means that she has yet again had to bear the financial, social and emotional burden of trying to bridge the gap in support for her daughter. She told us she feels “exhausted to an unimaginable level” and is suffering financial hardship.
3. Mrs M would like the following outcomes:
• the organisations to improve their practices so there is transparency, good communication and good collaboration between them, so Miss D gets the education, care and support set out in her EHC Plan;
• a financial remedy to recognise the loss of education for Miss D and the impact this has had on Miss D;
• a financial remedy to recognise the detrimental impact on Mrs M’s health and wellbeing; and
• for the Council and ICB to make educational provision and funding available to Miss D beyond the age of 25. This is so she can repeat the years of education she has missed because of faults by the organisations.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman (LGSCO) and Health Service Ombudsman (PHSO) have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(1) and 26A(2), as amended)
6. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
8. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. 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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
10. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
11. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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How I considered this complaint

12. I considered evidence provided by Mrs M, the Council and the ICB as well as relevant law, policy and guidance.
13. Mrs M, the Council and ICB have had an opportunity to comment on a draft version of this decision. I considered any comments before making a final decision.

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What I found

Background summary

14. Miss D is a young adult with an EHC Plan. She also receives care funded through NHS continuing healthcare (CHC). Miss D has a tracheostomy (a tube inserted through an artificial opening in the windpipe to help a person breathe). Tracheostomies need specialist care such as suctioning to remove secretions, caring for the opening, changing the tube and emergency care. Miss D cannot do this for herself. People caring for her need specialist training so they can do this safely.
15. Miss D’s placement at College Z, about an hour away from her home, broke down in September 2022.
16. LGSCO investigated and upheld a previous complaint from Mrs M about Miss D not getting the provision in her EHC Plan to the end of June 2023.
17. Following a review of her EHC Plan in October 2023 Miss D got a place at a new college (College X) in November 2023. Miss D’s updated EHC Plan, valid from November 2023, named this college in Section I.
18. College X is around two hours away from Miss D’s home. The Council agreed to fund a taxi to College X and the ICB agreed to fund a care worker trained in tracheostomy care to escort Miss D in the taxi.
19. Mrs M complained to us again in 2024. This was because Miss D could not get to College X as there was no medically trained escort to support her while travelling there. This complaint is the subject of this decision statement. The investigation was a joint one by both LGSCO and PHSO as the complaint involved the actions of both the Council and the ICB.

Transport to college

Relevant law and guidance

20. The Council must arrange for the transport it considers necessary for an adult with an EHC plan to attend their education or training placement. (Education Act 1996, section 508F)
21. The Council has a post-16 transport policy statement. This specifies the assistance the Council considers necessary to facilitate adults’ attendance at education placements.
22. If the Council decides that an adult meets its eligibility criteria for transport, it has discretion in the types of support it can offer. But the transport support offered must be capable of achieving the objective of facilitating attendance at the educational placement.
23. NHS Continuing Healthcare (CHC) is a package of ongoing care arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. Where a person is eligible for CHC, their local ICB is responsible for care planning, commissioning services and case management. This includes:
• ensuring the person has a care plan to meet all their health and associated care and support needs; and
• monitoring their support arrangements and responding to any difficulties in a timely manner.
24. The National Framework for NHS Continuing Healthcare (National Framework) says at paragraph 288 that, where there are overlapping powers and responsibilities, councils and ICBs should adopt a flexible, partnership-based approach including which organisations will take the lead commissioning role. In Practice Guidance note 43, the National Framework says that ICBs should commission in partnership with councils where appropriate.

My analysis

25. The only references to transport arrangements for Miss D for the period of this investigation are in the Council’s decision letter agreeing to provide transport, and emails between the Council and ICB. I have therefore based my views on those records.
26. The Council and ICB knew in October 2023 that Miss D had a place at College X and needed to have a taxi and an escort trained in tracheostomy care to be able to get there safely.
27. The Council issued a decision letter stating Miss D met its criteria for transport on 30 November 2023. This meant the Council considered the transport was necessary for her attendance at college. It also meant the Council was responsible for ensuring the transport it offered could be used by Miss D facilitate her attendance at college. Miss D needed a taxi and an escort trained in tracheostomy care to be able to do this. A taxi without a suitably trained escort would not meet the objective of facilitating Miss D’s attendance at college because it would be unsafe for her to use it.
28. The organisations agreed the Council would fund the taxi and the ICB would fund a specially trained care worker to act as an escort. They were entitled to do this, but any decision to split funding or organising the transport should not have delayed Miss D’s access to suitable transport.
29. The ICB approved the transport escort support worker funding on 18 December 2023. However, a transport escort support worker was not trained and signed off as competent to escort Miss D until July 2024. This means that, during the period we have investigated, Miss D could only access transport, and therefore College X, for the last four weeks of that academic year.
30. The information provided by the organisations indicates the Council took no action throughout the period we have investigated to:
• check if the transport arrangements were working and Miss D was attending college after it approved the taxi funding;
• resolve the delays;
• find suitable alternative transport; or
• arrange for Miss D to receive education including special educational provision in an alternative way, pending resolution of the transport problem.
31. This is despite Mrs M complaining in February 2024 that the arrangements were not working and Miss D was still out of school. It is also despite the previous LGSCO investigation highlighting significant fault and injustice in similar circumstances.
32. The Council’s lack of oversight and failure to act when it was informed of problems with transport were faults.
33. The records from the ICB show the following relevant events:
• the ICB sourced a care provider (Agency A) in late November 2023 and agreed to fund it in mid-December;
• by January 2024, Agency A told the ICB it could not provide the service after all. Mrs M was left to explore alternatives locally;
• Miss D stayed in respite care in another county between October 2023 and January 2024 because she could not attend college;
• by February 2024, Mrs M had found another care provider (Agency B) whose staff were getting to know her and Miss D;
• by March 2024, the ICB was in touch with Agency B and Agency B was providing care to Miss D. Mrs M could still not leave the support workers alone with Miss D as they had not been signed off as having the necessary tracheostomy care competencies; and
• between March and June 2024, the ICB could not find anyone within its own staff or externally to provide the competency sign-off. Mrs M sourced a person who could do this and the ICB and Agency B agreed to use this person’s services.
34. While the above timeline shows the ICB took some action to try to recruit and train suitable transport escorts, overall it took too long to do so between November 2023 and July 2024. This delay was fault.
35. The Council and ICB failed to work together to ensure Miss D had usable escorted transport in place in good time after getting a place at College X. This was contrary to the National Framework and fault. Mrs M taking the initiative and helping to find escorts and training was instrumental in eventually getting a transport escort service in place for Miss D in July 2024. This is not something Mrs M should have had to do.
36. The injustice these faults have caused is linked to injustice arising from other parts of the complaint. I will therefore summarise the total injustice at the end of this statement.

Special educational provision

37. A young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the young person’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. Section F contains the special educational provision needed by the young person. Section I contains the name and/or type of educational placement.
38. The Council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act 2014). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if a council asks another organisation to make the provision and that organisation fails to do so, the council remains responsible (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135).
39. Miss D’s EHC Plan dated July 2021 was valid until November 2023 and named College Z. LGSCO has already investigated and upheld a complaint about Miss D not being able to attend College Z to the end of June 2023.
40. My investigation has found that Miss D could not attend College Z for the rest of the time it was named on her EHC Plan. Miss D was also unable to attend College X from November 2023 (when it was named on her EHC Plan) to July 2024. While Miss D could not attend college, the Council did not ensure she received the provision set out in section F of her EHC Plan. This was contrary to the Council's duty under section 42 of the Children and Families Act 2014 and fault.
41. The injustice these faults have caused is linked to injustice arising from other parts of the complaint. I will therefore summarise the total injustice at the end of this statement.

Human rights

42. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including respect for private and family life under Article 8.
43. The Human Rights Act 1998 requires bodies carrying out public functions, such as ICBs and councils, to respect and protect individuals’ rights. The right to private and family life is a qualified right. This means that public authorities can interfere with the right to protect the rights of others or wider public interest. Any interference must be: lawful; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
44. Our remit does not extend to deciding whether or not an organisation has breached the Human Rights Act – only the courts can do this. But we can decide whether an organisation has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
45. In practical terms, organisations will often be able to show they have complied with the Human Rights Act if they can show they have considered the impact their decisions will have on the individuals affected.
46. We consider that Article 8 of the Human Rights Act 1998 was engaged in this complaint because:
• Miss D needed to stay in out-of-county respite care, away from her family home, for longer than usual when she could not go to college; and
• Mrs M could not leave Miss D unsupervised with care workers until they were fully trained in caring for Miss D’s tracheostomy and signed off as competent in doing so. This reduced Mrs M’s ability to have a break from her caring role and to spend time with Miss D’s brother.
47. Neither the Council nor the ICB have shown how they considered the impact of the delays in resolving transport on Miss D’s and her family’s Article 8 rights. This was fault.
48. The injustice these faults have caused is linked to injustice arising from other parts of the complaint. I will therefore summarise the total injustice at the end of this statement.

Communication with Mrs M

49. In response to our enquiries, the Council and ICB have provided scant evidence of their communication with Mrs M about college transport and attendance for the period of this complaint.
50. The information I have seen indicates the ICB communicated promptly with Mrs M in November and December 2023. However, the plan for Care Agency A to provide transport escorts fell through in January 2024. After that, the ICB’s information indicates it was Mrs M who tended to initiate contact with the ICB, usually to provide information on progress she had made with finding transport escorts or training them. The ICB has provided no documentary evidence of keeping Mrs M fully informed – rather it appears that it was Mrs M taking on the responsibility of keeping the ICB informed. This was contrary to the core values and principles of a person-centred approach set out in paragraph 69 and Practice Guidance Note of the National Framework. It was fault by the ICB.
51. The Council sent Mrs M a letter confirming it had agreed to provide transport in November 2023. Information from the Council indicates that after sending that letter, the Council did not communicate again with Mrs M until she complained in February 2024 that Miss D could still not access college. It is difficult to understand how the Council could have taken this approach to communicating with Mrs M without checking Miss D was accessing college, given the known problems and previous Ombudsman investigation. The lack of communication by the Council over around three months was contrary to LGSCO’s principles of good administration and fault.
52. When Mrs M complained, the Council acknowledged and replied to her complaint in good time. However, the Council failed to investigate Mrs M’s complaint properly. Instead, it relied on past email exchanges with the ICB to assume the transport escort problem was resolved. It stated “We hope that [Miss D’s] transition has now started and wish her every success at college” without checking with Mrs M, the ICB or College X whether this was really happening. This was fault by the Council.
53. A council must make enquiries if it thinks an adult may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action. (Section 42, Care Act 2014)
54. The Government’s Care and Support Statutory Guidance (CSSG) gives examples of abuse and neglect. CSSG also says councils should not limit their view on what constitutes abuse or neglect as they should always consider the individual circumstances. CSSG says:
• psychological abuse can include unreasonable and unjustified withdrawal of services;
• organisational abuse can be through neglect or poor professional practice as a result of the structure, processes and practices within organisations; and
• neglect and acts of omission can include failure to provide access to appropriate educational services.
55. Mrs M made a safeguarding report to the Council in March 2024 following a visit and advice from the Office of the Public Guardian (OPG). The OPG oversees the work of court-appointed deputies for people who cannot make their own decisions.
56. The Council decided Mrs M’s report did not meet the threshold for an enquiry because there was no reasonable cause to suspect Miss D was experiencing or was at risk of abuse or neglect. It told Mrs M of the decision but did not explain how it reached its decision. For example, it did not explain why in Miss D’s case being unable to access education (for by then around nine months) would not be neglect despite the example in CSSG. In response to our enquiries, the Council said it had not considered there to be organisational abuse as this was not raised as a concern. The Council has not provided adequate reasoning for its decision. This was fault.
57. We cannot say whether adequate reasoning, or even a formal safeguarding enquiry would have made a significant difference to Miss D’s college attendance at the time. But this was a further missed opportunity for the Council to get a full understanding of the problems Miss D was experiencing and act on them. It was also another example of flawed communication with Mrs M.
58. Mrs M is Miss D’s main carer. Where it appears a carer may have any needs for support, the Council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Section 10, Care Act 2014; Care and Support Statutory Guidance 2014)
59. Throughout the period I have investigated, the Council has been aware of Mrs M being Miss D’s carer, and of the impact of this role on Mrs M. It has also been aware that when Miss D was not in college or respite care, Mrs M’s caring role was even greater. However, the Council has not provided us with any evidence it offered Mrs M a carer’s assessment or offered to review any previous support plans. This was fault.
60. The injustice these faults have caused is linked to injustice arising from other parts of the complaint. I will therefore summarise the total injustice in the next section of this statement, below.

Summary of injustice to Miss D and Mrs M

61. The fact Miss D has an EHC Plan means she needs special educational support to be able to interact with others and achieve an education to the best of her abilities. Her high level of need for both educational and health support means she is an exceptionally vulnerable young woman.
62. As a result of the Council’s and ICB’s faults, Miss D missed out on all her education for about 12 months between July 2023 and July 2024. This was highly specialised education to support her needs. It included the following special educational provision in section F of her EHC Plan.
• One to one support and a specialist personalised learning environment.
• An individual highly structured learning programme delivered by specially trained staff with support, advice and monitoring by a Teacher of the Deaf (ToD), speech and language therapist (SALT), and special educational needs (SEN) teacher. Additional direct teaching from a ToD.
• Programmes to develop self-help, social and communication skills including Makaton (a programme that uses symbols, signs and speech to enable people to communicate).
• An accredited personalised sensory programme with support from a multidisciplinary team.
• Weekly sessions delivered directly by a SALT as well as half termly SALT assessments and advice.
• Daily physiotherapy and weekly swimming sessions as part of a programme devised by a physiotherapist.
• Occupational therapy to help develop motor skills.
63. Missing out on all her education for a year, including essential special educational needs support, therapies and social interaction, is a significant injustice to an already vulnerable young person. Miss D is clearly loved and well cared for in her family home and had a respite placement, but these were not substitutes for the education she was entitled to. This comes on top of missing six terms of education between September 2021 and June 2023, as LGSCO found in its earlier investigation.
64. For some of the time Miss D could not attend college, she spent extra weeks in respite care in another county a long way from home and her immediate family. While there were no concerns about her care there, it was an injustice to Miss D that she needed to spend extra time in respite care rather than enjoying her usual family life at home, simply because she could not get to college.
65. Mrs M’s caring role expanded significantly and for a prolonged period because of the organisations’ faults. This caused her to feel, in her own words “exhausted to an unimaginable level”. Mrs M could not take her usual breaks from her caring role or spend quality time with her son. Not only did Mrs M have to step up her caring role for Miss D, she also had to put significant time and effort in helping the ICB source, train and sign off competent escorts. This was all in addition to her usual caring role and something she should not have had to do.
66. The Council’s failures to properly consider Mrs M’s complaint and safeguarding report led to two missed opportunities to act and consider the risks of harm to Miss D from her missing out on education and therapies for such a long time. The distressing uncertainty from this is an injustice to Mrs M. Mrs M was also put to avoidable time, trouble, frustration and upset by the organisations’ poor communication with her. She has lost trust in the organisations and feels that they do not value either hers of Miss D’s life.

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Action

67. In recommending these actions, we have considered the individual circumstances of this case together with the Ombudsmen’s published guidance on remedies.
68. To remedy the injustice to Miss D, the Council and ICB will take the following actions.
1. The Council and ICB will ensure Miss D’s transport, escort service and educational provision are now in place and there are effective checks on whether they continue to stay in place. The organisations will do this as a matter of urgency and no later than one month after our final decision.
2. The Council and ICB will each pay £3,600 (£7,200 in total) for Mrs M to use for Miss D’s benefit, in recognition of three terms of missed education, including the loss of essential special educational support which cannot be remedied through additional ‘catch-up’ provision.
3. The Council and ICB will each pay £500 (£1,000 in total) for Mrs M to use for Miss D’s benefit, in recognition of the impact the organisations’ faults have had on Miss D’s enjoyment of family life for a prolonged period.

The organisations will agree with Mrs M as Miss D's court-appointed deputy which is the appropriate account to pay this money into. The organisations will make the payments within two months of our final decision.

69. To remedy the injustice to Mrs M, the Council and ICB will take the following actions.
1. Within one month of our final decision, the Council and ICB will send Mrs M written apologies for the faults and injustice we have identified through our investigation. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology we have recommended in our findings.
2. If it has not already done so, the Council will offer Mrs M a carer’s assessment as a matter of urgency and no later than one month after our final decision. If Mrs M agrees to a carer's assessment, the Council will carry it out and inform Mrs M of the outcome within six weeks of her agreement.
3. The Council and ICB will each pay Mrs M £1,000 (£2,000 in total) in recognition of the impact on her of the additional caring responsibilities she took on while Miss D was out of college.
4. The Council will pay Mrs M £500 in recognition of the avoidable distress, frustration and time and trouble she suffered as a result of its poor communication, including about safeguarding and complaint handling.
5. The ICB will pay Mrs M £250 in recognition of the avoidable distress, frustration and time and trouble she suffered as a result of its poor communication.

The organisations will make the payments within two months of our final decision.

70. To prevent similar problems affecting the complainants or others again, the organisations will take the following actions to review and improve services.
1. Within three months of our final decision, the Council and ICB will implement a joint working procedure for transport requiring specialist escorts. The procedure should include processes to: escalate and resolve professional disagreements; check all elements of transport are in place; and check the transport is facilitating attendance at the placement.
2. Within two months of our final decision, the Council will review how it records its reasoning for decisions about safeguarding referrals and how it explains these to referrers. If the review identifies needs for process changes or staff training, the Council will implement these within four months of our final decision.
71. The organisations should provide us with evidence they have complied with the above actions.
72. The ICB should also send an anonymised copy of our final decision to NHS England.

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Decision

73. I find fault causing injustice. The Council and ICB have accepted my recommendations for personal remedies and service improvements. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman