School transport – no right to education if you can’t get there
by stevebroach
This post was edited on 12 March 2015, including to clarify the definition of an ‘eligible’ child and the requirements of a post 16 transport policy statement. Links to the legislation have also been added.
School transport in general and transport for children with SEN in particular forms a massive part of Local Authority expenditure. I know of at least one Local Authority where expenditure on SEN transport exceeds the amount spent on SEN provision – by some way. So at this time of austerity it is unsurprising that Local Authorities are eyeing up their school transport budgets and seeking to bring them down. Unfortunately, too often this is being done without any proper understanding of the relevant statutory duties – the subject of this blog.
Compliance with the law on school transport is not helped by it being so blinking complicated. I have totted up at least four statutory provisions which might be relevant to the question of whether a child or young person receives help from their Local Authority to get to school. Each of these form part of the alphabet soup of sections found after section 508 of the Education Act 1996 – a soup created through lots of later amendments to that Act. The key statutory provisions (all in Part IX, Chapter II) follow. Although legislation.gov.uk has not yet updated all these sections of the 1996 Act, you can see the amended sections through the Act that introduced them, the Education and Inspections Act 2006 and the Apprenticeships, Skills, Children and Learning Act 2009.
- Section 508B – this requires Local Authorities to secure ‘suitable home to school travel arrangements’ for ‘eligible’ children of compulsory school age (5-15, ie not 16 and 17 year olds – see 3. below). Importantly these arrangements must be provided free of charge – see sub-section (1). Any arrangements must be ‘suitable’, i.e. appropriate for the individual child taking account of any particular needs they have. Schedule 35B to the 1996 Act sets out who ‘eligible’ children are – importantly, paragraph 2 of this Schedule says that disabled children and children with SEN of compulsory school age who live within the walking distance (two or three miles depending on age) but ‘cannot reasonably be expected to walk to school’ are all ‘eligible’. Paragraph 3 makes children ‘eligible’ if they attend a school outside the walking distance, so long as it is the nearest suitable school. So in most cases (unless, for example, the parents have chosen to send their child to a school which is not the nearest suitable school) disabled children and children with SEN will have a right to free suitable school transport up to the age of 16 unless they can reasonably be expected to walk to a school close to home themselves. There is helpful statutory guidance on the school transport duties to ‘eligible’ children.
- What about children aged 5-15 who are not ‘eligible’? The Local Authority has a power to provide school transport for any child under section 508C (scroll down the link) of the 1996 Act. The Local Authority must at least think about exercising this power in every case and must exercise it in some cases – otherwise it is fettering its discretion. However, by virtue of it being a power it will be much harder to force a Local Authority to make transport arrangements under section 508C. Moreover unlike transport provided to ‘eligible’ children arrangements made under section 508C do not have to be made free of charge. Section 508C could also be used to obtain transport for children below compulsory school age, i.e. the under 5s, where this transport is necessary for them to access education.
- What about children aged 16 and 17? It seems to me there is a gap in the law here which is potentially discriminatory. 16 and (shortly) 17 year olds are now expected (indeed obliged) to participate in education or training. However the duty to provide school transport under section 508B applies only to children of ‘compulsory school age’. The definition of this term is found in section 8 of the 1996 Act – and it clearly says that this term covers only children aged 5-15. Children aged 16 and 17 are covered by section 509AA of the 1996 Act (warning – section not fully up to date with later amendments). This requires every Local Authority to publish a transport policy statement for ‘persons of sixth form age’. Importantly, this statement has to include ‘arrangements for facilitating the attendance [at schools or colleges] of disabled persons and persons with learning difficulties or disabilities’, see section 509AB (warning – section not fully up to date with later amendments). However, section 509AA does not itself create a duty or power to provide transport – it therefore seems to me that the statement it requires is dealing with circumstances when the Local Authority should exercise its section 509C powers in relation to these older children. In setting this policy, the Local Authority will need to have due regard to the need to advance equality of opportunity for disabled learners – as required by section 149 of the Equality Act 2010, the public sector equality duty (see further below). However this is not as good as being covered by the section 508B duty – not least because, as we have seen, ‘eligible’ children under that duty are entitled to suitable transport free of charge. The statutory guidance on post 16 transport is very helpful on the need for the transport policy statement to deal properly with the particular transport requirements of disabled learners.
- What about young adults, who are now within the remit of the SEN system by virtue of the reforms under Part 3 of the Children and Families Act 2014 (particularly those who have or will have EHC Plans)? Their transport needs should be met under section 508F of the 1996 Act, which requires Local Authorities to make ‘such arrangements for the provision of transport as they consider necessary’ for adult learners. So if it is ‘necessary’ for a young person over 18 to receive help with transport to get to school or college, then there is a duty on the Local Authority to provide this. Further, assistance under section 508F must also be provided free of charge – see sub-section (4).
So it is clear that the nature and extent of the duty to provide school transport depends not only on the child or young person’s needs but also on their age. As set out above, I’m troubled by this, particularly what seems to me to the less favourable treatment of young people aged 16-17, not just compared with younger children but also compared with those over 18. However in general it should be possible to use these provisions to obtain suitable transport for any child or young person who has a genuine need for help to get to school. Any transport policy being operated by a Local Authority which makes this impossible will be highly likely to be unlawful.
It is also important to remember that there can be a social care duty to arrange transport which helps a disabled child or young person access education. Unsurprisingly, this duty is found in section 2 of the Chronically Sick and Disabled Persons Act 1970 – see further on the CSDPA here. In particular, section 2(1)(c) requires Local Authorities to provide ‘assistance to [a disabled person] in taking advantage of educational facilities available to him’. This duty arises where it is ‘necessary’ for a Local Authority to provide a service under the CSDPA to meet a person’s needs. As such, there will be no CSDPA duty if in fact the disabled child or adult is able to obtain transport to access education under the Education Act 1996 duties and powers described above. However if there is a gap in the 1996 Act scheme and a need for transport to education cannot or will not be met under that legislation, then the CSDPA duty operates as a safety net. From 1 April 2015 however the CSDPA is repealed in relation to those over 18 and entitlement to transport will then be an issue of eligibility under the Care Act 2014.
How about the case, common at present, where Local Authorities are attempting to tighten their eligibility criteria for school transport as part of the cuts? Obviously any new policy has to comply with the law above, but what about other relevant legal considerations? Firstly, it is virtually certain that any Local Authority attempting to change its transport policy will have to consult in advance with affected families, and do so properly – see the guidance from the Supreme Court on consultation. Secondly, all cuts decisions must be taken in accordance with the public sector equality duty in section 149 of the Equality Act 2010, which requires ‘due regard’ to be given to a series of specified needs. The most relevant need in such a case is likely to be the need to ‘advance equality of opportunity’ for disabled people compared with others (see section 149(1)(b)). It is still possible for a Local Authority to pay ‘due regard’ to this need while cutting an important service, but it must first have understood how many disabled people will be affected, analysed what the impact will be and considered any ways in which the impact could be mitigated or avoided (all of this comes from the extensive case law on the section 149 duty). This places a heavy burden on Local Authorities who are seeking to cut services which are valued by disabled people, and one which is all too often not properly discharged.
Families who are concerned about current transport policies or proposed cuts to services which may be unlawful should seek advice from a specialist solicitor as soon as possible.
Comments on this tricky legal area most welcome below.
So does this mean that a LA policy to charge for post 16 transport is unlawful?
LikeLike
Not necessarily Carol – as I say in the post there is no specific duty to provide free transport to 16 and 17 year olds – just under 16s and 18 plus. However – transport charges mustn’t stop young people accessing the transport they need, must be fair and reasonable and should be waived in appropriate cases. LAs also need to consult and comply with the public sector equality duty when they set them. Hope this helps.
LikeLike
Here are some links to the relevant sections. As most of the ‘alphabet soup’ was inserted by the Education and Inspections Act 2006, that’s where you need to go on legislation.gov.uk
Most of it is here: http://www.legislation.gov.uk/ukpga/2006/40/part/6/crossheading/travel-to-schools-etc
I don’t know what happened to the school travel schemes mentioned – they seem to have died a death
Eligible children- schedule 35B of EA 96 was inserted by sch 8 E&IA 2006 http://www.legislation.gov.uk/ukpga/2006/40/schedule/8
I agree that there is an anomaly with the young people of sixth form age. I suspect that the reason is that the duty to participate in education or training has no teeth – the enforcement provisions were never commenced. Parents of younger children can be fined or prosecuted if they don’t attend and there is a statutory defence if the LA was under a duty to provide transport but didn’t. It is interesting to note that the provisions regarding statutory walking distance etc come under the attendance provisions of the 1996 Act.
16-19 yr olds would also be expected to apply to the 16-19 bursary fund if they are from a low income family. Young people getting ESA are automatically eligible.
In my experience LA do cap the cost to families of SEN transport at the level of the subsidised bus pass for non-disabled young people.
I think it might be worth saying a bit more about ‘suitable’ transport and ‘nearest suitable school’ as that is where the disputes tend to arise.
warning – I have been a self-confessed school transport geek ever since a dispute with our local authority back in 1991 – at that time school transport still came under the 1944 Education Act!!
LikeLike
Very helpful Lesley! I’ve kept it to headlines as otherwise the blog posts disappear off the page…the guidance deals with these points that you raise as conflict areas in individual cases, perhaps I’ll add some refs to the relevant paras. Any case law you think I should highlight?
LikeLike
Hereford and Worcester on suitable transport and Dudley on nearest suitable school are the obvious ones
LikeLike
Actually the bursary is no longer automatic – even if you get ESA and DLA. We were asked to pay for my 20 yr olds transport but were exempt as he was on an income related benefit (ESA) even though they at first argued they could only take parental benefits into account
LikeLike
very interesting – my LA are looking at school transport for SEN children – its their next big thing – what is worrying is that they are making comments about parents getting mobility payments as part of the childs DLA and seem to be implying that parents who get this will have to contribute towards the cost of transport
LikeLike
Very important point Lisa.
As you can see from the main post, LAs can require contributions from families for transport provided under section 508C – but not section 508B. In plain English, this means that if a child is ‘eligible’ for transport under section 508B then the transport provided must be both suitable and free.
Very many disabled children and children with SEN aged 5-16 will be ‘eligible’ because they can’t reasonably be expected to walk to school – so long as they are attending their nearest suitable school. So for these families, whether they receive DLA is irrelevant as is any other income they might have – the transport has to be free of charge.
For other children, and for young people aged 16-17, it may be possible for the LA to require a contribution towards the transport costs from the family. However – any policy which requires families to contribute to transport costs, whether based on receipt of DLA or otherwise, must be fair and reasonable and should not mean that children and young people who require transport in fact go without it. This is because any policy governing the exercise of a statutory power must promote the policy and objects of that power – which in this case is that children who need help with transport to school (but who are not ‘eligible’) should get it at a reasonable cost.
Also, the policy must be set in accordance with the public sector equality duty – so LAs must ask themselves whether it would be consistent with the need to promote equality of opportunity for disabled children to require their families, who are more likely to live in poverty than other families, to pay for transport which other children may not need.
Final point on DLA – neither mobility component or care component are generous. It would be irrational for a LA to assume that ALL of a child’s mobility component is available to meet school transport costs – assuming they are not ‘eligible’ – because there will obviously be other additional transport costs to meet.
Hope this helps – it’s an important and complex issue and one that I’m concerned too many LAs are treating in an unacceptably black and white way.
LikeLike
I saw a very interesting proposal from Derby the other day, they aren’t proposing to charge for transport where the child has a motability vehicle but are proposing to say that in those cases the transport will only be provided by means of a personal budget…. My feeling is that this would possibly be allowable under home-school transport legislation but not under personal budget/direct payment rules because the service user should always have the option of commissioned services instead?
LikeLike
But what are, ‘such arrangements for the provision of transport as they consider necessary’ for young adults if they are at a residential college. Is it considered necessary to travel every week, every half term, every term.
LikeLike
Sorry Michelle, just seen this comment when I was reviewing the main blog post. The answer is that it all depends on what the LA assesses in an individual case – but that means they have to take account of all the circumstances of the case including the wishes, feelings and views of the young person and their family.
LikeLike
Hi Steve,
So… Having read above and read the legislation, if a LA has a duty to provide free transport for young adults, who are now within the remit of the SEN system by virtue of the reforms under Part 3 of the Children and Families Act 2014 (particularly those who have or will have EHC Plans)? Their transport needs should be met under section 508F of the 1996 Act, which requires Local Authorities to make ‘such arrangements for the provision of transport as they consider necessary’ for adult learners. So if it is ‘necessary’ for a young person over 18 to receive help with transport to get to school or college, then there is a duty on the Local Authority to provide this. Further, assistance under section 508F must also be provided free of charge – see sub-section (4)… if a YP who will be 20 in their first college year, who has already completed a “sixth form” education at school, who will be in receipt of an EHCP, and who’s placement has been agreed at an out of county specialist residential college term time placement…. does that mean transport must be provided because they will now be seen as an adult.
And, does that mean that Ed have to pay, or would that need to come from the Social Care part of the provision, as in the CSDPA, which in our case will be paid for by adult CHC.
Or….. would there be a suggestion that DLA/motability should cover this?
LikeLike
Hi Michelle – can’t comment on individual cases but your summary of the law looks right to me. The adult transport duty is on the local authority as a whole but I would expect education to generally meet it. If an argument is raised by the LA in relation to DLA mobility component I suggest you take advice from a specialist solicitor – legal aid should be available in the young person’s name unless they have funds themselves.
LikeLike
My son has a statement of SEN in one authority and the school we found that met ‘all’ his needs was in another authority. I have become ill so am temporarily unable to transport but the authority has refused to transport due to ‘parental choice’. Have you any advice?
LikeLike
Very sorry, I can’t advise without instructions from a solicitor, such as these. Legal aid may well be available. https://rightsinreality.wordpress.com/2014/09/13/solicitors-with-expertise-in-disability-and-sen-cases/
LikeLike
Our local authority has started to exclude children with challenging behaviour saying they have a duty under health and safety legislation.
LikeLike
AT first their would appear to be a conflict between the education needs and the need to keep employees safe, but any response has to be proportionate and I would say that excluding the child without trying other options such as additional resources into the school would not be proportionate. I would seek the advice of a solicitor as above or speak to IPSEA. The children’s commissioner website has a very interesting report on illegal exclusions from school too………
LikeLike
The exclusion was from transport only, the school did not agree with the decision and were not consulted. We did manage to get it reinstated but it is happening to many more young people in our borough and many have the threat of being excluded permanently if there is another incident. LA quote paragraph 48 of the statutory home to school transport guidance 2014 which states “A number of local authorities have adopted a policy of withdrawing transport, either for a temporary period, or permanently for more serious or repeated cases of misbehaviour.” and although there is guidance on what headteachers must do when excluding a child from school, there is no guidance on what local authorities must do when excluding from transport. Our policy says that responsibility will then fall back to the parents if a child is excluded.
LikeLike
Hello, when LA’s use proximity to school and parental circumstance (i.e. no reason for parent not to take child to school). Can this be disputed in law? I understand statutory walking distance cannot be applied to a child with SEN/D or mobility problems but what about parental responsibility?
Can section 149 of the Equality Act be used to explain the need for 11/12 year old child who is “eligible” to have the right to access home to school transport and not have their parents drop them off at the school gate?. Considering their right to same privilege as a child in the same age group without disability, who would likely be making their own way independently to school?
LikeLike
These are very good questions Ashling, but I’m afraid too specific for me to answer here. If you want to speak to solicitor, some specialists are here: https://rightsinreality.wordpress.com/2014/09/13/solicitors-with-expertise-in-disability-and-sen-cases/
LikeLike
Thanks Steve
LikeLike
[…] duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act […]
LikeLike
Hi Steve, great post streamling a complicated area. I’m particularly interested in the interface between the CSDPA the CFA and social care duty to arrange transport which helps a disabled child or young person access education? Have you any experience of cases unde the new EHC Assessment process and the CSDPA successfully being used to secure transport for post 16’s?
LikeLike
Thanks – and no re the case query, but would love to bring one!
LikeLike
My sister has identified a school for my nephew which most meets his needs but is not the nearest school and therefore the local authority say they do not have to pay transport. My sister does not drive and so taking him to school each day would not only be too costly but would reduce the time she has to work. Is this not part of the Care Act too? Her right to work? Any advice welcome thanks Clare
LikeLike
The key question re the school transport duties is whether there is a nearer *suitable* school. Otherwise there may also be a social care duty to provide transport – your sister may want to contact one of these solicitors: https://www.google.co.uk/amp/s/rightsinreality.wordpress.com/2014/09/13/solicitors-with-expertise-in-disability-and-sen-cases/amp/?client=safari
LikeLike
Hi, I found this article, but notice it was written a few years ago now. Just wondering if there has been an update for 16/17 year olds? My son is 16 and in the process of EHCP and I’m asking for him to get assistance. .
LikeLike
Hi Susan – haven’t been able to update this post yet, we have a number of cases in the pipeline challenging post 16 transport policies so I’ll update when we have those judgments
LikeLike