Summary: Mr P complains about school transport for his son, R. I have decided not to investigate this complaint because Mr P has complained well over a year after he became aware of the matter and he could have raised it as part of earlier complaints. Mr P is pursuing a Tribunal appeal which could provide the school transport he seeks. Regarding his complaint about the way the Council handled the transport appeal, the Ombudsmen would not be able to achieve the outcomes Mr P seeks. It is also unlikely an Ombudsmen’s investigation would add to the response he has already received from the Trust.

The complaint

1. Mr P complains about the provision of school transport for his son, R. He says that a transport risk assessment done by Oxleas NHS Foundation Trust (the Trust) was flawed, in that the Trust changed the information in the assessment without seeing R again. Mr P complains that London Borough of Bexley Council’s (the Council) offer of school transport was based on this faulty risk assessment, and as such, the transport on offer is not safe for R. He also says the Council did not comply with procedural rules and there were irregularities in the way their transport appeal was handled.
2. Mr P says that as a result, R has been without suitable school transport for three years. He says he and Mrs P have had to provide transport themselves.
3. Mr P wants the Council to provide an ambulance to transport R to school. He also seeks financial remedy of £66,000 per year for the transport he has provided so far.

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The Ombudsmen’s role and powers

4. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they could add to any previous investigation by the bodies, or
• they cannot achieve the outcome someone wants (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended))

5. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)

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How I considered this complaint

6. I considered the following:

• information provided by Mr P, including complaint correspondence between Mr P and the Council and Trust;
• an email from Mrs P to LGSCO;
• papers relating to Mr P’s two stage school transport appeal;
• papers relating to the ongoing appeal to the SEND tribunal;
• LGSCO’s previous investigations into complaints from Mr P; and
• relevant law and guidance as set out below.

7. I also considered comments from Mr P on a draft version of this decision.

Education, Health and Care Plans: the law

8. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
9. The procedure for assessing a child’s special educational needs and issuing an EHC Plan is set out in legislation and Government guidance.
10. Parents have a right of appeal to the SEND Tribunal if they disagree with the description of their child’s special educational needs, the special educational provision required to meet them, or the school named in their child’s EHC Plan.
11. Parents can also appeal to the Tribunal about the health and social care aspects of an EHC Plan, although the Tribunal can only make non-binding recommendations on these matters.

Home to school transport

12. Councils have a duty to provide free home to school transport for eligible children to qualifying schools. (Education Act 1996, section 508B)
13. Eligible children are children of compulsory school age who:
• cannot walk to school because of their special educational needs, disability or a mobility problem; or
• live beyond the statutory walking distance. (Education Act 1996, Schedule 35B)
14. The statutory walking distance is two miles for a child aged under eight and three miles for a child aged eight and over. It is measured by the shortest route along which a child, accompanied as necessary, may walk with reasonable safety. (Education Act 1996, section 444(5))
15. The nearest 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.

Social care support for disabled children

16. Councils have a duty to assess the needs of disabled children. They have a duty to provide support if they consider it ‘necessary’. Any support should be set out in a care plan.
17. Support provided by the Council may include:
• residential short breaks (Children Act 1989, section 17)

• practical assistance in the home, home-based respite, recreational or educational facilities, travel or other assistance, home adaptations, holidays, meals and telephones (Chronically Sick and Disabled Persons Act 1970, section 2).

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What I found

18. Mr P’s son, R, has attended a special school for children with complex medical needs since September 2016. The school is named on R’s Education Health and Care Plan (EHC Plan) and is approximately 18 miles from home. R has disabilities and epilepsy.
19. In October 2016, the Trust’s Community Nursing Team carried out a risk assessment of R to determine the type of school transport he needed. In November 2016, the Trust amended the risk assessment after making further enquiries. The amended version replaced the earlier October version in R’s records.
20. The Council offered the following school transport options:
• a personal transport budget of £20,000 (later increased to £42,864) per year to enable Mr P to make his own arrangements for R’s transport; or
• transport arranged by the Council in a wheelchair accessible vehicle, with an escort trained to recognise R’s seizures. There would also be an agreed emergency protocol in the event of R becoming unwell.
21. In February 2017, the Council set out the proposed arrangements for R’s school transport in an accessible vehicle with a trained escort. Training for the escort was arranged, and the Council said arrangements were in place for transport to start on 20 February 2017.
22. However, Mr P declined this arrangement and appealed the Council’s proposals under the first stage of its transport appeal process. He also asked the Council to provide ambulance transport to R under either the Education Act or the Chronically Sick and Disabled Persons Act 1970 (CSDP Act).
23. In April 2017, the Council responded to Mr P’s appeal. He remained dissatisfied and asked the Council to consider his appeal at the second stage of the appeal process. The Council’s Transport Appeals Panel considered Mr P’s case, but did not uphold his appeal. In July 2017, the Council wrote to Mr P explaining the Panel’s decision, and advised him to complain to the LGSCO if he remained unhappy.
24. Mr P complained to the LGSCO in July 2017 (case reference 17003161). LGSCO’s understanding was that Mr P wanted to complain about the suitability of the transport the Council had offered, and began an investigation. However, Mr P said this was not the case and asked LGSCO not to investigate the suitability of transport. Instead, the investigation looked at which section of the Education Act 1996 the Council used to make its decision on school transport for R. LGSCO did not uphold Mr P’s complaint, deciding there was no evidence of fault or injustice.
25. In 2018, Mr P again complained to the Council. He continued to challenge the decision not to offer ambulance transport, and asked the Council for a backdated payment to cover the costs of providing the transport himself.
26. In correspondence with Mr P, the Council said the options offered were “based on the information we have on [R] and in particular the assessment completed by Oxleas NHS Foundation Trust which does support the above options. If you deem this assessment to be lacking vital information then please provide further professional medical assessment information or consent to further assessment to be carried out.”
27. The Council also said the transport application form included a “section for additional needs where the need for a high dependency vehicle could have been included”, but that it had not yet received a completed application form from Mr P.
28. Mr P remained dissatisfied with the Council’s response and again complained to LGSCO. He said the Council withheld information from the transport appeals panel in 2017. He again asked LGSCO not to consider the suitability of the transport offered by the Council. LGSCO decided not to investigate Mr P’s complaint.
29. Mr P also complained to the Trust about the changes to the assessment. He was dissatisfied with the Trust’s response and complained to the Parliamentary and Health Service Ombudsman (PHSO).
30. Mrs P wrote to the LGSCO on 19 July 2019. She explained R had secured ‘investigative funding’ from the Legal Aid Agency and solicitors would be advising on the merits of a legal challenge to the Council’s transport proposals. Mrs P asked the LGSCO to look into the Council’s decision and education transport appeals. She explained PHSO was considering a separate complaint about the transport risk assessment carried out by the Trust.
31. On 4 September 2019, Mr P complained to the LGSCO about the Council’s transport offer by sending a copy of his submission for his 2017 appeal against the Council’s transport decision. He did not set out a specific complaint that he wanted LGSCO to look at, but his email to the Council said “the offered travel arrangements… are unsuitable, we disagree with the type of assistance being offered, the consideration of his exceptional circumstances, my wife and I feel mandate further deliberation, our reason for appeal.” His email to the Council also said “If the council are unable to provide under the EA [Education Act] 1996, then may be the more specific duty under CSPDA [Chronically Sick and Disabled Persons Act] 1970 s.2 may be entertained as [R] is recorded on the disabled children’s register”.
32. On 14 October 2019, PHSO and LGSCO decided that, subject to agreement from Mr P, the case should be handled in the Ombudsmen’s Joint Working team to consider his complaints about the Trust and the Council together.
33. Mr P sent me the Case Management Directions that had been issued by the Tribunal in March 2020. These set out the issues to be considered by the Tribunal. The directions note Mr and Mrs P requested the Tribunal make recommendations in respect of the social care provision specified in R’s EHC Plan, specifically:

“Social care services to identify any further social care provision required to meet [R]’s needs and for that provision to be specified in the EHC Plan including ambulance transfer for [R]’s school transport.”

34. A hearing is scheduled for September 2020.
35. Mr P also sent us a copy of an order from an earlier Tribunal appeal in 2018 which shows he asked the Tribunal to decide whether R needed transport from home to school in an ambulance as special educational provision. Mr P has not sent us a copy of the Tribunal’s decision, but as he has continued to request ambulance transport for R since this Tribunal, it seems safe to assume the Tribunal’s decision was not in his favour.

Analysis

36. The Tribunal has no jurisdiction over the Council’s education transport decision, which was made under the Education Act. However, as noted above, in his appeal to the Tribunal, Mr P has asked for provision of ambulance transport for R not under the Education Act, but under the Chronically Sick and Disabled Persons Act 1970. Therefore, his appeal to the Tribunal falls under social care rather than school transport. His complaint to the Ombudsmen is about the Council’s decision and appeal, which fall under the Education Act.
37. Mr P has been aware of his dissatisfaction with the appeal process since he received the appeal decision in July 2017. In October 2018 Mr P complained to the Local Government and Social Care Ombudsman that information had been withheld from both stages of the appeal. This was already a year after the Stage 2 appeal decision had been made. By the time Mr P approached us, he had also completed the Council’s own complaints process about the appeal. As such it was open to Mr P to raise his concerns about the appeal process in October 2018. I can see no good reason why he or Mrs P waited a further ten months to come back to us complaining about a different aspect of the appeals process. Therefore, this complaint is late.
38. In addition, there is an overlap in the processes Mr P is pursuing. In his appeal to the Council, Mr P asked the Council to consider providing ambulance transport under both the Education Act and the CSDP Act. Mr P seeks an outcome of ambulance transport for R in both his appeal to the Tribunal and his complaint to the Ombudsmen. The matters Mr P is taking to Tribunal are closely linked to the matters he has brought to the Ombudsmen, albeit his complaint to the Ombudsmen relates to a decision under the Education Act and his appeal to the Tribunal relates to the CSDP Act. Even if we were to exercise our discretion over the time limit expressed in paragraph five, the Ombudsmen should not investigate the complaint about the decision on education transport appeals and lack of ambulance transport because of the overlap with the matters being considered by the ongoing Tribunal.
39. In addition, if the Ombudsmen were to investigate, and if we were to find fault in the procedure followed during the appeal, the most we could achieve is a recommendation of a fresh appeal. It is not the Ombudsmen’s role to decide who should have education transport and what that provision should look like.
40. The Tribunal will not consider Mr P’s request for financial remedy. However, even though Mr P cannot achieve the full remedy he seeks by appealing to the Tribunal, the Ombudsmen would not be able to achieve the financial remedy Mr P is seeking either. This is because for the Ombudsmen to consider whether Mr P had suffered a financial injustice, we would need to make a finding on whether there was fault in how the Council considered the education transport appeal and that, but for that fault, R would have had school transport by ambulance. As stated in the previous paragraph, the decision about what transport R should have is not one for the Ombudsmen to make. In addition, even if the Tribunal finds that R should have ambulance transport under the CSDP Act, this does not mean there was any fault by the appeal panel in how it decided the education transport appeal. The consideration of need under the two Acts is different.

Complaint about the Trust

41. Mr P said that some of the information in the Trust’s transport risk assessment of October 2016 was not included in the November 2016 assessment. He said the Council had requested more detail from the Trust, but the Trust had removed details without reassessing R.
42. In response to the complaint in March 2018, the Trust acknowledged the risk assessment was changed following enquiries. The Trust set out these changes in its response letter and provided an explanation for each.
43. The Trust said it had not found the risk assessment of November 2016 to be unsafe. It said there was no clear indication that R required an ambulance transfer at the time he was assessed. However, the Trust said it recommended the risk assessment be reviewed so that all relevant and up to date information could be included. The Trust offered Mr P a multi‑disciplinary meeting to discuss whether R now needed ambulance transport. The Trust suggested the meeting could include the different teams involved in R’s care as well as his school. I understand Mr P has not yet taken the Trust up on this offer.
44. The Trust has provided a reasonable response to Mr P’s concerns. An investigation by the Ombudsmen is unlikely to add to the response Mr P has already received from the Trust.

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Final decision

45. The Ombudsmen will not investigate this complaint for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman