Summary: Mrs X complained the Council failed to provide her son who has complex medical needs, with school transport. We have found the Council at fault as it was unable to fulfil its statutory duty to provide Mrs X’s son with transport. This caused Mrs X’s son to miss out on education and accessing his special educational needs provision as well as causing Mrs X and the wider family avoidable distress.

The complaint

1. Mrs X complained the Council failed to provide her son (Y) who has an EHC Plan with home to school transport from June to October 2023. Y has significant health/medical needs. Mrs X said the Council pressured her to take a Personal Travel Budget (PTB) even though this was not a viable option.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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What I have and have not investigated

4. I have not investigated any matters surrounding Y’s EHC Plan. This was dealt with as a separate complaint.

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How I considered this complaint

5. I have considered Mrs X’s complaint and have spoken to her about it.
6. I have also considered the Council’s response to Mrs X and to my enquiries.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Policy and procedures

Education Act 1996

8. The Act says that councils have a duty to make travel arrangements to and from school for eligible children. It is for a council to decide how it will arrange free travel for an eligible child. However, some arrangements, such as providing expenses (or a personal travel budget) to enable the parent to make their own arrangements, requires parental consent.

Changes to travel arrangements

9. If the Council uses a third party transport provider, the responsibility for the transport still lies with the Council. Therefore, the Council has responsibility to inform parents of any changes to travel arrangements. The Council relies on providers and schools to keep it updated of any changes. From July 2023, the Council has had a dedicated phone line manned between 7.30am and 5.30pm each weekday (term time) for the use of operators. Prior to July 2023, the Council contact centre would take all calls for the school transport team.
10. The Council said that generally operators should only suspend services with the Council agreement. Also, if there is no short term resolution to the concern, operators should give the Council 28 days notice. However, the Council agree that if it is not safe to transport, it would not expect transport to be provided.

Contingency plans

11. The Council said where an operator is unable to transport a child/young person or terminates the contract, the Council will always seek to find alternative transport arrangements or to amend current arrangements. It said, in the interim, it will offer families an Independent Travel Allowance (ITA) or a Personalised Travel Budget (PTB) that can be used to facilitate their child’s journeys to and from school.
12. Since early August 2023, the Council introduced a pilot PTB scheme. This is where enhanced rates are offered dependent on need. It said this can be used flexibly by parents and can pay for passenger assistants to accompany children on contracted transport. The Council added that parents whose children have complex needs were contacted as a priority when the pilot scheme started.
13. In June 2023, the Council began to look at 2 pilot schemes with 2 ambulance-style providers. These are to provide transportation for children with the most complex medical needs where parents are not able to accept a PTB.

What happened

Background

14. Mrs X’s son, Y has complex medical needs. He has an EHC Plan and up until June 2023, the Council had delivered home to school transport provision. Between January and June 2023, two passenger assistants travelled with Y him.

Transport suspended

15. Y’s passenger assistants were trained by the school nurse to meet Y’s health needs while on transport with him. The Council said due to a change in Y’s needs, the school recommended that the passenger assistants and other relevant staff underwent additional training to ensure they were able to manage Y’s needs while on transport. The training took place on 15 June 2023.
16. After the training, the passenger assistants and the travel provider felt they were no longer able to support Y’s needs on transport. The travel provider decided to suspend Y’s transport from 16 June 2023 onwards to ensure his safety. The provider did not contact Mrs X or the Council to inform them of this decision.
17. On 16 June 2023, Y’s transport did not arrive to collect him in the morning. The travel provider did not inform the Council that it had suspended its service until lunchtime on 16 June 2023. The Council contacted Mrs X to discuss her concerns. Mrs X complained.

Search for a new transport provider

18. The week following the withdrawal of H’s transport, the Council began a fresh search for a new provider for children with complex needs. Prior to this incident, the Council had contacted close to 20 transport providers/care agencies to find a suitable provider for children with complex medical needs.
19. In early July, the Council responded to Mrs X’s complaint. It offered her a travel allowance and reimbursement for the journeys made by her and Mr X. Mrs X said she did not have the time to recruit carers so did not want to accept a PTB.
20. Over the school summer holidays, the Council explored transport options for September. The Council offered Mrs X a PTB which would require the family to arrange Y’s journeys to and from school. It then amended the amount to reflect the Council arranging the transport and the family facilitating and funding careers to support Y. After initially accepting the PTB as an interim solution, Mrs X informed the Council that the proposed carer was not able to support.
21. Towards the end of August, the Council had a provider that was interested in the contract. The Council continued with the procurement process while also looking for potential care agencies to accompany Y in the interim.
22. By the beginning of the autumn term, the Council had not secured a new provider. It offered Mrs X an enhanced PTB to pay for carers. Mrs X did not want to take on the administrative tasks of managing a PTB. The Council agreed to pay the provider directly rather than invoicing Mr and Mrs X.
23. By the end of September, the Council had a proposed plan to cover travel and carers for all journeys to and from school. There was a dispute around additional funding requested for carers due to shift patterns. After initially refusing the request, the Council agreed.
24. From 3 October until the end of the autumn term, Y returned to school using the interim transport provider and a care agency arranged and paid for by the Council.
25. From 2 January 2024, the new provider was in place and transported Y for all journeys to and from school.
26. Between June and October 2023, Y missed 27 days of school because a transport provider was not available. All Y’s SEN provision is delivered at school, so he missed this as well.

My findings

Service failure

27. The transport provider should have told the Council and Mrs X as soon as it decided to withdraw transport. This would have prevented Mrs X and Y waiting for the transport on 16 June. I can see the Council has put procedures in place to avoid the situation happening again.
28. The Council quickly offered Mrs X a travel allowance while it explored longer term options. Mrs X was unhappy with this offer.
29. Although a travel budget is a way of providing transport, without parental consent, the Council is not considered to have discharged its duty under the Education Act. This was service failure, amounting to fault.

Impact on Y and his family

30. The Council’s service failure to secure a replacement transport provider added pressure on the family and meant that Y missed education and SEN provision for a period.
31. In line with our Guidance on Remedies, the Council has agreed to remedy Y’s missed education and SEN provision, with a payment of £1000.
32. I recognise the avoidable distress, frustration and inconvenience that Y’s transport withdrawal caused Y and his family. The Council has agreed to make a symbolic payment to acknowledge this.

Service improvements

33. In an ideal world, the Council would have had other providers to use in situations where the primary provider withdraws its service. This was not possible in this situation due to the specialist nature of Y’s needs. I can see the Council has learnt from this and now has contracts with two ambulance-style providers able to transport children with complex medical needs. This means that a suitable ‘plan B’ is available should the situation arise.

Conclusion

34. Although I have found fault as a result of service failure, the Council did exactly what we would expect in the circumstances it found itself in. It applied interim measures, initiated a proactive search for a replacement provider, and implemented wider service improvements that have resulted in a more robust service with a back-up provider.

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Agreed Action

35. Within 4 weeks of my decision, the Council has agreed to:
1. Pay Mrs X £1000 in recognition of Y’s missed education and SEN provision during the period he had no transportation to school.
2. Pay Mrs X £500 in recognition of the avoidable distress that she and her family experienced during this period.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed my investigation. I have found fault with the Council as it was unable to fulfil its statutory duty to provide Mrs X’s son with school transport.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman