School transport and Special Educational Needs

The Upper Tribunal has released two cases in the last year which deal with school transport and special educational needs. The judgments particularly look at transport being included in an Education Health and Care Plan (EHCP).

There has been a fair amount written about both judgments. This blog is designed to explain the difference(s) between the two and explain the current position.

The two recent cases on transport and EHCPs are:

• Staffordshire County Council v JM [2016] UKUT 0246 (AAC)
• AA v London Borough of Haringey [2017] UKUT 0241 (AAC)

Staffordshire - home to school transport for post-16

The first case, Staffordshire, dealt with a young person who was 21 years old at the time. She had an Education Health and Care Plan (EHCP). There was a procedural issue that the EHCP was only in draft form, but that was not material to this appeal.

The only suitable education institution for the young person was a considerable distance from the family home. It was the costs of the transport that caused the appeal.

As the young person was over the age of 19, the duty on the local authority was to provide transport if it considered doing so necessary. The Authority sought information from the young person's parents who, in view of the Upper Tribunal, did not cooperate with those enquiries.

The young person's appeal to secure transport was based on:

1. The young person's inability to use public transport
2. The young person's parents' inability to provide transport
3. The need for a person to accompany the young person if she were to use a third party transport option (such as a taxi)

The local authority maintained that it required information, per its policy, before it could provide transport.

The matter went before the Upper Tribunal because the Special Educational Needs and Disability Tribunal (SENDIST) found that, in this case, school transport was both a special educational needs and a special educational provision. On appeal, the Upper Tribunal made the following findings:

1. Transport, for an adult learner is not a special educational need or special educational provision. The Upper Tribunal described the conclusion that it was as "bold ... in light of the authorities that establish that home to school transport is neither speical educaitonal needs nor special educaitonal provision”.
2. The Code of Practice at 9.214 - 9.217 is unhelpfully brief as it conflates and confuses several differet duties. In repsect of home to school transport for an adult learner, the duty is only for the lcoal authority to provide transport if it deems it necessary. The SENDIST does not have jurisdiction, as an appellant body, to consider that assessment

In making the general finding that transport was not an educational provision, the Upper Tribunal referred to other Upper Tribunal judgments, paritcular the following comments, taken from MM & DM v London Borough of Harrow [2010] UKUT 395 (AAC);

'Transport is not an educational need. However, it has to be taken into account. A placement cannot be appropriate if the authority cannot provide suitable transport to the school.' ... : 'However, the journey is not part of the children's education. It does not have to provide an opportunity to meet social or educational needs. It is merely a means of getting the children from their homes to their school.'

Following the Staffordshire judgment, many blogs and articles were prepared to set out that transport would never be a special educational provision or a special educational need. The indication that was given at that time was that transport would not be dealt with by the SENDIST.

Haringey - home to school transport for school age learners

The judgment of Haringey was published on 4 July 2017, with the decision itself being made in June 2017. This was an Upper Tribunal decision dealing with home to school transport for a eight year old boy with Autistic Spectrum Disorder (ASD).

The young person in this appeal was issued with an EHCP and placed in an independent special school. The difficulty arose because the young person was unable to walk to school. There was a disagreement between the local authority and parents about what the Education Health and Care Plan (EHCP). The local auhtority had accepted that it was responsible to provide home to school transport, but the issue was what form of transport was suitable for the young person. That was the basis for the appeal to SENDIST.

In deciding the appeal, SENDIST referred to Staffordshire (above). The SENDIST concluded that Staffordshire effectively ruled out home to school transport from the jurisidction of SENDIST and partiuclarly noted that the Upper Tribunal indicated that home to school transport was not a special educational need or a special educational provision.

The Upper Tribunal in Haringey noted that Staffordshire dealt with home to school transport post-16. As Haringey dealt with a learner of compiulsory school age, the statutory duties of transport were different. However, The Upper Tribunal looked to address the general statements that had been made in Staffordshire.

In Haringey the Upper Tribunal concluded that, in fact, the need for home to school transport was a question fo fact. As such, and because there was no authority to the contrary, home to school transport could be a special educational need and/or provision.

Conclusions

There is a distinction between the two cases, because of the ages of the young people involved.

For post-16 learners, the statutory duty on the local authority is to provide transport that it considers necessary. That will be further to the local authority's own assessment.

For learners under 16, there is a clear statutory obligation to provide free home to school transport for "eligible" children. An eligible child is a child who lives over the statutory walking distance from the home, or is disabled to the extent that they require transport in order to access school. Further information is available here.

In both situations, however, there is still scope for the local authority to have to assess and decide on transport. For post-16, the local authority decides whether it is necessary at all. For pre-16 learners, the local authority decides on the form of transport. Both are specialist assessment and the remedies if you disagree with those assessments are unclear. That is because there is tension between the two judgments. That is because Staffordshire, citing authority, sets out that there is no scope for transport to be considered a special educational need or a special educational provision. Alternatively, Haringey, indicates that the need for transport is a question of fact and that, therefore, it is an eror in law for the Tribunal to refuse to consider it.

What this means is that there is no clear answer. If there is a dispute about transport, it is likely that Staffordshire will be still cited as authority against transport being in an EHCP. Haringey will be cited as authority that transport can be detailed in an EHCP.

We would note that Staffordshire relies on authories created under the Education Act 1996. The distinction is, however, that s21 Children and Families Act 2014 increased the scope of what could be considered as "special educational provision". With that increase in scope, beyond that within the Education Act, it is not clear automatically that hte authorities that Staffordshire relies on to conclude the general prinrciple that transport can never be in an EHCP should apply.

It makes sense to us for SENDIST to be able to consider transport, for both pre- and post-16 cases. That is because often the issue is the assessment of what is "suitable" transport and/or what is "necessary". SENDIST exists as a specialist panel to consider provision needed. The difficulty is, however, that SENDIST has to focus exclusively on educational provision. That is despite EHCPs containin far more than simply special educational provision.

If there is a substantive issue regarding how a young person is to access education, it would seem sensible for SENDIST, being a specialist panel, to be able to consider what form of transport the young person requires by virtue of their special educaitonal needs. However, that does seem to be contrary to the existing authorities even accpeting what Haringey concluded.

It is likely that this is not the last word on transport and special educational needs. It is likely further appeals will be brought to deal with the tension between the two cases. It may also be that legislation will be required to deal with the issue. SENDIST has recently trialled a system of being able to deal with the health and social care elemnets of an EHCP. That is to be rolled out nationally soon. It would be helpful if such a project could be used for transport so as to resolve this issue.

If you are experiencing difficulties in relation to transport, Special Educational Needs or otherwise then please do not hesitate to contact our specialist education solicitors on 029 2029 1704.