Summary: Miss X complained that the Council refused to provide a passenger assistant trained to administer emergency medication for her son Y who has special educational needs. She said this prevented Y from receiving the suitable home to school transport he was entitled to, it had a significant negative impact on Y’s development, and caused financial and emotional impact on the family. We find the Council at fault for the way it made its decision which caused distress. The Council agreed to apologise, make a symbolic payment and amend its policy.

The complaint

1. Miss X complains about the Council’s refusal to provide suitable home to school transport for her son Y who has special educational needs. In particular she complains the Council failed to provide Y a passenger assistant who is able to administer emergency medication if he needs it.
2. She says the failure to provide home to school transport is having a negative impact on Y’s development, is discriminatory because he cannot access the same transport as his peers, and is having a significant financial and emotional impact on the family in having to arrange transport for him.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. 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)
4. If we are satisfied with an organisation’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)
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
6. 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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What I have and have not investigated

7. I have not investigated matters after December 2024 when Miss X complained. This is because we do not usually investigate new matters that happened after a person has complained to us.

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How I considered this complaint

8. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Statutory guidance

Eligible children and qualifying schools

10. The Government has issued statutory guidance for councils called the Travel to school for children of compulsory school age (the statutory guidance). It states local authorities must make suitable home to school travel arrangements as they consider necessary for ‘eligible children’ of compulsory school age to attend their ‘qualifying school’. The travel arrangements must be made and provided free of charge. The relevant qualifying school is the nearest school with places available that provides education appropriate to the age, ability and aptitude of the child, and any special educational needs the child may have.
11. If the young person has an education health and care plan (EHC plan) that names one school, then that is the school the council has determined is the nearest suitable school for the child. It is therefore the nearest ‘qualifying school’ for the child to attend for school transport consideration.

Ways in which free travel may be provided

12. It is for local authorities to decide how they will arrange free travel for an eligible child. If a local authority had the consent of the parent, it may provide expenses to enable the parent to make their own travel arrangements for their child. (Paragraphs 67 and 68)

Risk assessments

13. The guidance covers risk assessments. It says local authorities are required to put in place reasonably practicable control measures to protect the children for whom they arrange travel from harm. It is for local authorities to decide what is reasonably practicable in each circumstance. They may consider that an individual risk assessment is required for some children, for example those with complex medical needs. (Paragraphs 86 and 88)

Passenger assistants and training

14. The guidance explains how local authorities should take account of children’s needs. It says some children may need particular arrangements. For example, some children might require the support of a passenger assistant on their journey. (Paragraph 84)
15. Local authorities should ensure that passenger assistants working on dedicated school transport have undertaken appropriate training regarding a child’s needs and how to respond to them, and that this is kept up to date. It is for the local authority to decide what training is required, how it will be delivered and how often it should be refreshed. These decisions should be informed by their risk assessments. The training that passenger assistants require may be dependent on the needs of the children who are travelling. (Paragraphs 96 and 102)
16. The guidance notes school staff will receive training to enable them to manage a child’s medical needs in school. Wherever possible, it expects the transport staff that will be working with the child to be able to participate in this training. (Paragraph 104)
17. As a minimum, training should include the handling of emergency situations, for example what to do in a medical emergency, and any training required to meet the specific needs of the children travelling – for example, administering their emergency medication. (Paragraph 105)

The Council’s Policy

18. The Council’s School Travel Policy states a passenger assistant may be provided following a risk assessment for children or young people with either an EHC plan or additional needs.
19. The passenger assistant’s duty is to supervise children/young people on the vehicle. They will assist them to board and to leave the vehicle. Passenger assistants have basic training in first aid but are not otherwise medically trained.
20. The policy explains how people can challenge a travel assistance decision. A decision can be appealed on several grounds including the transport arrangements offered. The appeal process states where a child has an EHC plan, the appeal will be considered by a Travel Officer Panel that consists of representatives from the Children and Young People’s Services and Passenger Transport Team.

What happened

21. This is a summary of the key events. It is not a complete chronology of everything that happened. Where necessary, I have expanded on some of these events in the “Analysis” section of this decision statement.
22. When Y’s EHC plan was finalised it named a specialist school placement. It also detailed his medical needs. It said the school had to provide training for staff on the use of an epi pen. An epi pen is a medical device for injecting medicine for the emergency treatment of anaphylaxis (severe allergic reactions).
23. Miss X applied to the Council for funded school travel in good time before he started at the specialist school. She initially wanted to transport Y into her school herself. She gave reasons for this that included his medical condition that increases his risk of anaphylaxis and therefore puts him at risk of death.
24. The Council approved Miss X’s application. Miss X accepted a personal travel budget from the Council that provided a payment for her to drive Y to and from school.
25. After Y started the new school Miss X raised a concern the budget was not high enough. The Council decided to increase the payment to £5000 per year. Miss X accepted this amount.
26. A few weeks later Miss X requested the Council provide transport for Y instead of her driving Y to school. She said the Council needed to provide a passenger assistant trained to give Y his epi pen if he needed it. The Council refused to provide a passenger assistant trained to give medication. It referred to its policy that says it would not provide medically trained passenger assistants. Miss X made a formal complaint to the Council about its decision and policy.
27. The Council responded to Miss X’s complaint. It said it might consider doing a risk assessment. However, it made a final decision that any passenger assistant involved in Y’s travel would be made aware of his needs but would not be medically trained to administer his epi pen.
28. The following month, the Council completed a risk assessment for Y. It assessed his risk of anaphylaxis as unacceptable. It proposed a control measure of a passenger assistant prepared to dial 999 and follow operator instructions. It recorded the residual risk with the control measure as high.
29. Miss X continued to drive Y to school. She said this was due to her fear for his life is he had anaphylaxis without a person present trained to use his epi pen. She said it took a significant time every day to transport him to and from school. She said this has a significant negative impact on her ability to find employment and her wellbeing, as well as affecting Y’s development.

Analysis

30. I find Miss X’s initial application to the Council showed she consented to receive expenses to drive Y to and from school herself. For this reason I find no fault with the Council’s initial decision that the personal travel budget was a suitable arrangement. This is because the guidance allows it when a local authority has the consent of the parent.
31. Miss X has continued to drive Y to and from school and receive the personal travel budget expenses. However, I find Miss X clearly withdrew her consent for the Council to use this arrangement. She did so from when she requested the Council arrange the travel. For this reason I accept Miss X only continued to transport Y out of genuine fear for his wellbeing and I find the Council had a duty to make suitable home to school travel arrangements from when Mrs X withdrew her consent.

Y’s EHC Plan and the risk assessment

32. The Council decided it would not provide a passenger assistant trained to administer Y’s epi pen. It maintained this position after Miss X made a formal complaint and after it completed a risk assessment.
33. The statutory guidance states it is up to the Council to decide what training is provided to passenger assistants. However, it states:

• Transport staff wherever possible should receive the same training as school staff, and that as a minimum the training should meet the needs of the child, for example administering emergency medication.
• The decision should be informed by risk assessments.

34. Section G of Y’s EHC Plan states there must be training for school staff in identification and management of allergic reactions and understanding Y’s medical condition, including training on the use of an epi pen.
35. I have seen no evidence the Council took steps to enquire if passenger assistants could receive the same training as the school staff. I note the EHC plan makes direct reference to training for use of an epi pen which is the specific training that the Council decided it would not provide. I have seen no evidence the Council had regard to the statutory guidance that transport staff should receive the same training as school staff wherever possible. It was therefore at fault in the way it made its decision.
36. The Council completed the risk assessment and recorded the risk to Y of anaphylaxis as unacceptable. The risk was assessed as reaching the highest possible score for severity and likelihood. It recorded a control measure of a passenger assistant that is prepared to follow 999 operator instructions to administer an epi pen, but does not refer to training. It assessed the residual risk to Y with this control measure as high, one level below unacceptable. It stated that level of risk required immediate action and stopping the activity if necessary.  
37. The Council’s original decision to not provide a trained passenger assistant was not initially informed by its risk assessment. This is because it made the decision about two months before it completed the risk assessment. This meant it did not follow the statutory guidance and was therefore at fault in the way it made its decision.
38. The Council’s later decision to maintain its position was also not informed by its risk assessment once it was completed. This is because it listed the residual risk to Y as high and requiring immediate action, and I have seen no evidence the Council took any action. This meant it did not follow the statutory guidance and was therefore at fault in the way it maintained the decision.
39. I find the Council’s fault to have due regard to the statutory guidance in its decision making caused significant injustice to Miss X in the form of distress, uncertainty and frustration. I recommend the Council apologise to Miss X and make a symbolic payment of £300 to acknowledge the injustice.
40. Miss X says she has missed employment opportunities and would like compensation for lost earnings and the time she has spent driving Y to and from school. It is not our role to assess economic losses or award compensation, and we direct people to the courts where that is their goal. Therefore I cannot make any recommendations on this area.

The Council’s policy

41. I find the Council’s policy that passenger assistants have basic training in first aid but are not otherwise medically trained, has caused it to fetter its discretion as explained in paragraph 5 above.
42. This is because it is a blanket policy that prevented it from considering the circumstances of this particular case. It also contributed to its failure to have due regard to the statutory guidance regarding training provided to transport staff and risk assessments.
43. For this reason I recommend the Council change its policy to enable officers to make decisions based on the facts of each individual case in the future.

The Council’s complaint handling

44. The Council initially responded to Miss X’s stage one complaint within 20 working days. It subsequently issued a further stage one response, and declined to investigate the complaint at stage two. This timescale and approach complied with its own corporate complaints policy. Therefore I do not find fault with these aspects of the Council’s complaint handling.
45. However, the Council said it was exploring alternative options and looking to source an alternative transport arrangement for Y. It said this in November 2024 and had not made an alternative transport arrangement for Y by the start of the next school year in September 2025. I find the time the Council’s failure to carry out the action sooner was fault in its complaint handling. This caused Miss X injustice in the form of time and trouble. I recommend the Council make a further symbolic payment of £150 to acknowledge the injustice.
46. The Council subsequently made suitable alternative transport arrangements for Y. It will provide trained passenger assistants. I therefore make no further recommendations.

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Action

47. Within four weeks of the date of this decision the Council will:
1. Apologise to Miss X for the injustice caused. 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 I have recommended in my findings.
2. Make a symbolic payment to Miss X of £450 to acknowledge the injustice.
48. Within twelve weeks of the date of this decision the Council will:
1. Amend its School Travel Policy to ensure it aligns with the statutory guidance summarised at paragraphs 14 to 17 above and does not cause it to fetter its discretion when considering what level of training it will provide to passenger assistants.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I find fault causing injustice for the reasons explained in the analysis section and uphold Miss X’s complaint. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman