IPSEA

England: transport and pupils with special educational needs

• Checklist for parents
• Children with statements
  • Does your child need extra services?
  • Non-stressful transport
  • Help with costs
• General duties of LEAs to provide transport
  • The law
  • The guidance
• Is your child an eligible child?
  • What is ‘low income’?
  • How is distance measured?
• What are travel arrangements?
• School travel schemes
  • ‘Protected children’
• Local authority policies and appeals procedures

Checklist for parents

Should my child receive free transport to school?

1. Is your child of compulsory school age? (compulsory school age begins with the start of term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which s/he turns 16).
   If Yes, now consider:-
2. Does your child have SEN, a disability or mobility problems which affects their ability to walk to school?
   If Yes, and the local authority has not offered a place at a nearer qualifying school (see definition to right), then the authority must make suitable travel arrangements free of charge if the child’s SEN, disability or mobility problem mean they cannot reasonably be expected to walk to school.
3. Is the route to school unsafe taking into account your child’s age, hazards etc?
   If Yes, and if your child lives within statutory walking distance (2 miles for under 8s and 3 miles for 8 and over) of the school and the local authority has not made arrangements for them to attend a nearer qualifying school, the authority must make suitable travel arrangements free of charge.
4. If you are not a family on a low income, does your child attend a qualifying school (see definition to right) 3 or more miles away from home (2 miles or more for children under 8)?
   If Yes, the LA must either offer a nearer qualifying school or make suitable travel arrangements free of charge because your child lives outside statutory walking distance. But if the local authority has a school travel scheme then it may charge you.
5. Is your child of junior school age (8 – 10) and receiving free school meals or does your family receives maximum working tax credit?
   If Yes, and your child attends the nearest qualifying school (see definition to right) which is more than 2 miles from home (measured along the “nearest available route”), the local authority must make suitable travel arrangements free of charge.
6. Is your child of secondary school age (11 – 16) and receiving free school meals or does your family receive maximum working tax credit?
   If Yes, and your child attends one of his or her three nearest qualifying schools, which is more than 2 miles but not more than 6 miles from home, then the local authority must make suitable travel arrangements free of charge.
7. Does your child fit (6) above but attends the nearest school preferred on grounds of faith or beliefs (or lack of faith and beliefs)?
   If Yes, and the school is more than 2 miles but not more than 15 miles from home then the local authority must make suitable travel arrangements free of charge.

A 'qualifying school' is a:
• maintained (publicly funded) school
• non-maintained special school
• pupil referral unit
• maintained nursery school
• city technology college or academy
• in the case of a child with a statement of SEN, an independent school if this is the only school or the nearest school named in Part 4 of the statement (Para 15(3) Sched. 35B)

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Children with statements

Transport will generally only be recorded in a statement of special educational needs (in Part 6) when a child has particular transport needs.

In theory children with statements should receive transport if they fit one of the categories of eligibility. In practice deals are sometimes struck over school transport when parents are in dispute with their local authority over the costs of placement at different schools. The SEN Code suggests that authorities may name a school preferred by parents even where this is not the nearer school, if parents agreed to meet all or part of the transport costs. This approach was supported in the Appeal Court decision of R (on the application of M) v Sutton London Borough Council [2007] EWCA Civ 1205 (21 November 2007). It said that where a local authority specified the parents’ choice of school in a statement on condition that the parents paid for transport as there were other nearer suitable mainstream schools, the authority was not obliged to provide free transport to that school. The judge ruled that naming the school on condition that the parents paid for transport was consistent with the statutory provisions in section 324 of the Education Act 1996 provided the local authority also complied with its obligation to specify the type of school or, if it considered it appropriate to do so, the specific school which it considered to be suitable for the child.

However, note that in the case of R v Islington London Borough Council, ex parte A (a Child) (2000), The Times, 20 October, the court held that the local authority could not lawfully fetter its statutory discretion for all time by relying on an agreement made with the parents three years earlier. Once there had been a relevant change of circumstances, the respondent had to reconsider the matter in light of the changed circumstances.

Does your child need extra services when travelling between school and home?

Government guidance, Home to School Travel for Pupils Requiring Special Arrangements, advises on particular issues affecting pupils with severe learning difficulties and it recommends that local authorities:

• ensure drivers and escorts are known to parents
• operator contact numbers are provided for parents
• ensure stability of staffing arrangements for pupils who dislike change
• encourage schools and transport services to use a home-school liaison diary
• ensure that journey times are reasonable to avoid undue stress.

Other legal requirements and good practice points covered by the guidance include:

• enhanced CRB checks for all drivers and escorts
• minimum standards of training for drivers and escorts, including training in conflict resolution, safe handling and working with children with particular medical conditions or disabilities where appropriate
• assessment and management of risk
• specific measures for pupils with health needs
• specific training for staff and vehicle adaptations for pupils with mobility needs.

The guidance recommends that travel needs of pupils with SEN be reviewed at least annually and that pupils should always travel by using mainstream arrangements and local travel schemes where they can. Reviews can decrease as well as increase transport support of course.

Non-stressful transport

The issue of school transport for children with statements was raised in the case of R v Hereford and Worcester CC, ex parte P, (1992), Times, 13 March. The court held that it was implicit that the transport provided by the local authority should be “non-stressful” if the child was to benefit from education.

Home to School Travel for Pupils Requiring Special Arrangements suggests local authorities establish a service standard for the maximum travel time. The more recent Home to School Travel and Transport Guidance suggests maximum reasonable journey times for all children of 45 minutes for primary school children, and 75 minutes for secondary school children, and that this may be shorter for children with SEN and/or a disability: the child’s age and disability would have to be taken into account. Breaks might be needed when children lived a long way from their school.

Help with costs

Local authorities can make payments to parents and carers of pupils with SEN to act as an escort or to use the family car to take the pupil to school, generally where this is a special school at some distance from home. Government guidance – Home to School Travel for Pupils Requiring Special Arrangements – says that the authority’s policy should set out when they will do this and the amounts parents are entitled to.

The SEN Code (Paras 8:71 and 8:90) says that when a local authority names a residential school some distance from the parents’ home, the authority should provide transport or travel assistance to help maintain home–school contact.

Sometimes there is a space on a vehicle that can be used by a pupil who is not eligible for free home-to-school transport. LAs can make a charge for spare seats. This should be set out in their policy and explain the circumstances such a seat may be withdrawn if required for pupils who are eligible for free transport.

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General duties of LEAs to provide transport

Is your child an eligible child?

Schedule 35B of the Education Act 1996 covers eligible children, meaning children for whom the local authority must arrange suitable and free travel arrangements.

The following four categories of children are eligible:

1. Children who attend schools beyond the statutory walking distance
   These children are eligible for free school transport, provided that the local authority has made no "suitable arrangements" for boarding accommodation or attendance at a nearer school. This replicates the previous legal right to free home-school transport where children live beyond walking distance and attend their nearest suitable school. The statutory walking distance is 2 miles for children under 8 years old and 3 miles for children of 8 or over (see 'How is distance measred?'.
2. Children with SEN, disabilities or mobility problems
   The new legislation requires the local authority to arrange free school transport for some groups of children who attend schools within statutory walking distance. The first is those with special educational needs, disability or mobility problems which mean that they cannot reasonably be expected to walk to their school, and no suitable arrangements have been made by the local authority to enable them to attend a nearer school.
3. Children whose route to school is unsafe
   The second category of those eligible for free transport to schools even though they live within walking distance covers those who cannot reasonably be expected to walk to their nearest suitable school because of the nature of the routes they could reasonably be expected to take. The local authority should assess the route at the times the child would be using it. They should take into account:
   • the age of the child
   • whether risks might be less if the child were accompanied by an adult and whether that is practicable
   • the width of the road and the existence of pavements
   • the volume and speed of traffic
   • street lighting
   • different conditions at different times of year
4. Children from low income families:
   • Secondary school age children who attend schools over 2 and up to 6 miles from their home will be eligible for free school transport even if the school they attend is not their nearest suitable school, providing there are not three or more suitable schools which are nearer to their home. Under the new provisions, secondary age pupils who receive education elsewhere than in school at a place which is over 2 and up to 6 miles from their home will also be eligible for local authority school transport, whether or not there is a nearer suitable school. Secondly, secondary age children from low income families who attend a school over 2 miles but under 15 miles away from home will be entitled to free school transport if their parent has expressed a wish for them to be educated at that particular school based on the parent’s religion or belief and, having regard to that religion or belief, there is no nearer suitable school. This applies to parents with a particular religious or philosophical belief, including those with a lack of religion or lack of belief.
   • Junior age children (aged 8 – 10) from low income families who live more than 2 miles (rather than 3) from their nearest suitable school become eligible for free school transport from the local authority.

What is ‘low income’?

A child will qualify for potential eligibility under the 'low income' provisions if he is entitled to free school lunches, or if his parents or carers receive working tax credit at the maximum rate.

How is distance measured?

The courts have determined that the distance between hone and school is the nearest available route along which a student, accompanied as necessary, can walk with reasonable safety to school. (See, in particular, the decisions of the House of Lords in Devon County Council – v – George [1988] 3 ALL ER 1002 and Essex County Council – v – Rogers [1987] AC 66.)

More on travel arrangements ...

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What are travel arrangements?

Local authorities have a duty under section 508B of the Education Act 1996 to make suitable and free travel arrangements for all 'eligible children' but what does this mean?

"Travel arrangements" are defined in section 508B(4) and pages 48--51 of the government’s Home to School Travel and Transport Guidance.

“Home to school travel arrangements”, in relation to an eligible child, are travel arrangements relating to travel in both directions between the child’s home and the relevant educational establishment in question in relation to that child.

They include arrangements for the provision of transport, and any of the following arrangements – but only if they are made with parental consent:

• provision of one or more escorts (whether alone or together with other children) when travelling to or from the relevant educational establishment
• payment of the whole or any part of a person’s reasonable travelling expenses;
• payment of allowances in respect of the use of particular modes of travel.
• voluntary arrangements made by the parent.

“Travel arrangements”, in relation to an eligible child, must not give rise to additional costs and must include appropriate protection against those costs.

‘Suitability’ of travel arrangements

The Home to School Travel and Transport Guidance (paras 52 – 62) defines suitable travel arrangements. In particular

• "they must enable an eligible child to reach school without such stress, strain or difficulty that they would be prevented from benefiting from the education provided".
• must enable the child to travel in reasonable safety and comfort although this does not necessarily mean a door-to-door service. However, arrangements that entailed a child walking an unreasonably long distance to catch a public bus would be unlikely to be 'suitable'.
• the guidance suggests maximum reasonable journey times of 45 minutes for primary school children, and 75 minutes for secondary school children. This may be shorter for children with SEN and/or a disability. (See Children with statements).
• those who operate the travel arrangements such as bus drivers and escorts must be subject to enhanced CRB checks and should have undertaken disability equality training.

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School travel schemes

Once a child’s eligibility is established, a duty is imposed on the local authority in relation to the eligible child in one of two ways – either through the statutory provisions to make suitable travel arrangements described above – or through the local authority’s own ‘school travel scheme’. School travel schemes are not yet up and running. No more than 20 schemes will be piloted to run from September 2009 to August 2012 and local authorities are expected to consult widely on any changes to their travel arrangements.

‘Protected children’

The rules for free transport are different where local authorities operate school travel schemes. Most eligible children become ‘protected children’ under the schemes. A child will be 'protected' from charges for home to school travel if

• s/he comes from a low income family (see above) or
• s/he has SEN, a disability or mobility problem which means walking to school is not possible (see above) or
• his or her route to school is unsuitable (see above).

Those who live outside statutory walking distance to school and who are not from low income families are not 'protected', and a local authority with a school travel scheme may charge them for their school transport. Where a child with SEN can walk to school and is, therefore, not ‘eligible' under the SEN/disability/mobility category but attends a school further than the statutory walking distance, a local authority with a school travel scheme may charge for their transport but cannot demand more than the family would have had to pay if the child did not have SEN, disability or mobility problems and was able to attend a nearer school. So, for example, if a dyslexic child attends a school with a unit for dyslexics 20 miles away from his home, but would have attended a school four miles away were it not for his SEN, the local authority can only charge the parents for the first four miles of the journey.

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Local authority policies and appeals procedures

Local authorities should have a policy on home-to-school transport. The policy should set out:

• eligibility for free travel and how entitlement will be assessed;
• arrangements for children with SEN and/or disabilities including arrangements for pupils who are registered at more than one school;
• provision of escorts;
• charges;
• assistance to attend extended schools;
• travel to residential schools
• complaints.

Local authorities should consult widely on any changes to such policies and have an appeals procedure for parents to use when they have a complaint about the service or disagree with the eligibility of their child for travel support. The Home to School Travel and Transport Guidance says that the details of the appeals procedures should be published alongside local authority travel policy statements.

If you are unhappy with your local authority’s decision about your child’s transport to school write to the transport section of your local council to ask for a copy of the policy and appeal procedures. You are entitled to this under the Freedom of Information Act 2000.

If you are unhappy with the way your appeal is dealt with, you can complain to the Local Government Ombudsman. Sometimes complaints and appeals may be made to the Secretary of State or the High Court. (See How to complain)

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