Summary: Mr X complained the Council failed to provide his daughter, Z, with appropriate transport to school and respite care between January and July 2021 after it could not provide a suitably trained passenger assistant to carry her medication. We found fault in the Council’s failure to provide appropriate transport for Z and in the way it considered its duty to provide suitable transport. The Council agreed to apologise to Mr X and pay him £600 to recognise the inconvenience and distress caused, and to remind relevant staff of its statutory obligations when providing transport.

The complaint

1. Mr X complained the Council failed to provide his daughter, Z, with appropriate transport to school and respite care between January and July 2021 after it could not provide a suitably trained passenger assistant to carry her medication. Mr X stated this caused frustration and distress as he had to transport Z himself which affected his work and respite time.

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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. We cannot question whether a council’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. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. 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

6. I read the documents provided by Mr X and discussed the complaint with him on the telephone.
7. I read the documents provided by the Council in response to my enquiries.
8. Mr 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

Human Rights

9. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all councils, and other bodies carrying out public functions, to respect and protect individuals’ rights. Protocol 1, Article 2 of the Act states that no person shall be denied a right to an education.
10. It is not our role to decide whether a council has breached the Human Rights Act, this can only be done by the courts. We may find fault where a council cannot evidence it had due regard to a person’s human rights.

Home to school travel

11. The Home to school travel and transport guidance sets out a council’s duties of home to school travel and transport. Paragraph 16 states councils must make whatever transport arrangements are necessary to ensure eligible children can attend school. The travel arrangements can include a council taking the child using its own transport such as by taxi or minibus. The guidance also states, if the parent agrees, travel arrangements can include paying the parent’s travel expenses for taking the child to and from school themselves.
12. An eligible child for transport purposes is a child of school age who either:
• lives more than 2 miles away from their nearest suitable school if they are aged 8 or under, or 3 miles away if they are aged 8 to 16; or
• cannot reasonably be expected to walk because of health needs, special educational needs or a disability.
13. Paragraph 44 of the guidance states all drivers and passenger assistants who take children to and from school should have appropriate training. It states appropriate training includes the implementation of health care protocols to cover emergency procedures.
14. In March 2017 we published a focus report titled ‘All on board? Navigating school transport issues’. In that report we said where a passenger assistant is required councils need to provide suitably trained passenger assistants. We said the training could cover the needs of children who are disabled, communication skills and the implementation of health care protocols.

Transport to respite care

15. Part 3 of the Children Act 1989 sets out a council’s duty to safeguard and promote the welfare of children within its area who are in need, by providing services appropriate to those needs. It sets out who is a ‘child in need’ which includes a child who is disabled.
16. The law specifies that councils have a duty to provide services designed to help children who are in need of support. This includes services to help people, who provide care for children who are disabled, to continue to do so by giving them breaks from caring including providing respite care.
17. The Chronically Sick and Disabled Persons Act 1970 sets out a council’s duties to provide services and support for people who are unwell or disabled. It states councils have a duty to make any arrangements to meet the needs of a child who is disabled living in its area. This includes arrangements for travelling to and from any services provided by the council under part 3 of the Children Act 1989.

The Council’s policies

18. The Council’s education transport policy states it will consider school transport for children with special educational needs on a case-by-case basis. It states it will offer parents the cost of fuel if they are willing to provide transport.
19. The social care transport policy states the Council is responsible for arranging transport for eligible people. It states passenger assistants (PA) will not be expected to administer drugs to passengers. It says training is available for PAs dependant on the needs of the individuals they are responsible for.
20. Neither of the Council’s policies state what should happen if the Council cannot provide transport.

What happened

21. Z lives at home with her parents, Mr and Mrs X, and her younger sibling M. Z has epilepsy and a disability. Z has a prescribed emergency rescue medication to use in an emergency to stop an epileptic seizure.
22. In September 2012 Z started school. Mr X applied to the Council for home to school transport for Z. The Council stated it assessed Z and agreed she was eligible for home to school transport. The Council provided Z with home to school transport on a minibus with a PA.
23. In March 2018, Z’s social worker identified Z needed overnight respite care for 24 nights a year. The care was to provide respite for Mr and Mrs X and M and help reduce the risk of family breakdown. The social worker specified the Council should provide the transport to respite during the week and Mr and Mrs X should transport at the weekend and during school holidays.
24. In June 2018 the Council completed an assessment for Z and found her to be a ‘child in need’ under the Children Act 1989 due to her disability. The Council agreed to the social worker’s recommendation for respite care and the transport arrangements.
25. In December 2018 Z suffered an increase in epileptic seizures. Mr X contacted the Council in January 2019 and asked the Council to train Z’s PA to administer the medication in an emergency. He asked for the medication to be carried with Z.
26. The Council stated it completed a risk assessment and made the relevant arrangements. In March 2019 it confirmed the PA had been trained in administering the medication. From then the PA took the medication on the transport every day with Z.
27. In March 2020, due to the risk posed to Z from COVID-19 the whole family began isolating. This meant that Z did not attend school or respite care.
28. In September 2020 Z returned to school and to using school transport, supported by a trained PA.
29. In December 2020 Z’s normal PA could not work. The Council stated in the interim it offered other PAs to accompany Z. However, they were not trained to administer the emergency medication and would not carry it. The Council stated the PAs were unwilling to complete the training to administer the medication. The Council did not consider any alternative arrangements.
30. In March 2021 Z began reattending respite care. The Council reviewed Z’s family’s needs and identified Z’s respite care would increase to 36 nights per year. This was to provide additional support to Mr and Mrs X.
31. In April 2021 Mr X decided the risk to Z was too high for her to travel without her life saving medication. Mr X said he had no choice other than to transport Z to school and respite himself.
32. Mr X complained to the Council. He said the Council’s policy not to require emergency medication to be carried on school transport was against Equality and Human Rights Legislation. He stated Z’s life was at risk if her medication was not carried with her. He said he could not work properly as he had to transport Z to and from school and respite care.
33. The Council responded and said it could not identify a PA who was willing to complete the training to administer the medication. It stated it was voluntary under the PA’s employment terms. It said it would continue to recruit and offer specialist training and hoped to resume the transport. The Council offered to repay Mr X’s petrol and oil costs while he transported Z.
34. Mr X complained again to the Council. He said it had not confirmed if its transport policy was in line with its legal obligations to provide transport to eligible children. He said if he allowed Z to travel without the medication she would be at risk, and he would be neglectful.
35. The Council responded in June 2021 and did not uphold Mr X’s complaint. It said:
• where it had not been able to provide a trained PA, it had offered to pay Mr X’s costs;
• it did not have a statutory duty to provide a PA who could administer the medication;
• it had not been able to provide the relevant training during the COVID-19 pandemic;
• no PAs were willing to be trained in administering the medication which was voluntary; and
• it only had a duty to make reasonable arrangements to transport Z which it had by offering a PA who would call 999 in an emergency, or to pay Mr X’s costs.
36. Dissatisfied with the Council’s response Mr X complained to us.
37. I discussed the complaint with Mr X on the phone. He stated he transported Z because he had no other choice. If he did not take her, she would not receive an education. Mr X said it meant he and Mrs X could not benefit from the respite as he often had to drive Z between her care and school in the middle of the respite period. Mr X said an appropriately trained PA began supporting Z in September 2021.
38. In response to my enquiries the Council stated many other council’s do not provide the training needed to administer Z’s medication. It stated it had struggled to recruit suitable passenger assistants. It said it did not consider any alternative arrangements other than paying Mr X’s expenses. It said if the current trained PA was unavailable the policy stated responsibility for Z’s transport falls back to Mr X.
39. The Council could not provide any case notes, transport agreement or risk assessment documents from before September 2021 for Z’s school transport. It said the risk assessment from 2021 was likely to be the same as the previous risk assessment. The 2021 risk assessment stated:
• it may take an ambulance longer to reach the taxi than the time in which the medication should be administered;
• if the medication is unavailable the PA will decide that transport is not safe; and
• if a suitably trained PA is not available responsibility will pass to the parents to transport.

My findings

40. Z is both an ‘eligible child’ and a ‘child in need’. The Council had a statutory duty to provide Z with suitable transport to both school and respite care. In March 2019 it decided travelling with rescue medication and an appropriately trained PA was suitable transport. Z’s needs had not changed since that decision. The Council did not provide Z with suitable transport between January and September 2021. And it did not have a suitable contingency plan in place for staff absence. That was fault.
41. Mr X stated he felt forced to take Z to school and respite because he had no other choice. The guidance and Council policy stated it would reimburse parents for their costs if they agreed to transport their child. The Council did repay Mr X’s costs however, there is no evidence it discussed this with Mr X or asked for his agreement to transport Z. That was not in line with relevant policy and guidance and was fault.
42. The faults identified above caused inconvenience to Mr X as he could not work full time while transporting Z to and from school and respite between April and September 2021. It also caused distress to Mr and Mrs X as they were worried about the safety of Z on her journeys between January and April 2021. They could not fully benefit from the respite care arranged to reduce the pressure on them as carers.
43. The Council told Mr X it did not have a statutory obligation to provide a trained PA and only needed to make reasonable arrangements to transport Z. However, the statutory guidance states councils have a duty to make such arrangements as they consider necessary to facilitate attendance at school for eligible children. The Council’s complaint response was flawed and not in line with what it says in the statutory guidance. That was fault and caused Mr X uncertainty.
44. There is a lack of records and evidence showing how the Council considered the arrangements and safety of Z’s transport before September 2021 and how it made decisions on the case. Its lack of records is poor administrative practice and is fault. It leaves uncertainty around the decisions and actions the Council took around Z’s transport.
45. The Council records do not show the Council considered the impact on Z’s human right to education when it did not provide suitable transport for her. It did not consider how Z would access education if it did not provide suitable transport. The Council did not have due regard to Z’s human right and this was an additional fault.

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Agreed actions

46. Within one month of this decision the Council agreed to:
• write to Mr and Mrs X to apologise for the inconvenience, distress and uncertainty caused by the faults identified and make a symbolic payment of £100 per month for each of the six months Mr X had to transport Z, £600 in total; and
• review Z’s transport arrangement and ensure an appropriate contingency plan is in place should the trained PA be unavailable and provide this in writing to Mr X.
47. Within two months of this decision the Council agreed to:
• remind staff in the passenger transport department of its statutory obligations in providing transport to eligible children for both education and social care. It should include this decision as a case of note in its next round of relevant staff training; and
• review its arrangements for other passengers who need rescue medication on journeys to ensure their arrangements are in line with the statutory guidance.
48. The Council will provide us with evidence that it has completed these recommendations.

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Final decision

49. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendations to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman