Wales: transport and pupils with special educational needs |
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Duties of LEAs to provide transport generally – Section 509 Education Act 1996The starting point in any consideration of the obligations of local education authorities (‘LEAs’) to provide transport for any student for whom they are responsible (whether or not they have special educational needs -- ‘SEN’ -- let alone a statement of SEN), is Section 509 of the Education Act 1996. Section 509 deals with the duties of LEAs to provide transport for students of pre-school age, school age and post-school age. For those of school age, the material parts of section 509 provide that:
In summary, this means that if it is ‘necessary’ for the LEA to provide transport in order for the student to receive education, then the LEA must provide it free of charge. However, what is ‘necessary’ is a judgement at the discretion of the LEA (subject to the parameters set out below and subject to public law principles of reasonableness). In addition, the nature of the transport is at the LEA’s discretion (again, subject to public law principles of reasonableness). It could therefore mean a minibus, a bus pass, petrol costs, a minicab/taxi or otherwise, depending on the circumstances of the case. However, in R – v – Hereford and Worcester County Council ex parte P [1992] 2 FCR 732, it was held that the duty to provide transport under Section 509 was a duty to provide ‘non-stressful’ transport. In that case, one hour’s transport, door to door, was too much for a particular student with Down’s Syndrome. However, it should not be assumed that this would apply to every student with Down’s Syndrome; nor indeed to every student who is provided with transport regardless of their impairment or regardless of whether or not they have an impairment. In addition, the fact that the section makes reference to transport ‘or otherwise’ means that what must be provided may include, for example, an escort, if this is part of what is 'necessary'. If transport is not ‘necessary’ the LEA may, nevertheless, provide travel expenses, at their discretion. |
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Distance of school: Section 444 Education Act 1996 |
Meanwhile, Section 444(4) and (5) of the Education Act 1996 effectively prescribes one circumstance when transport is ‘necessary’. That section deals with prosecutions of parents by LEAs who fail to send their child to the school at which he/she is registered. In particular, it sets out the statutory defences to such prosecutions. One of the defences is where, in effect, the nearest available school for the student is not within walking distance and the LEA has not provided transport or made other arrangements. Walking distance is itself defined as being:
In effect then, if the nearest ‘available’ school is further away than these distances, then it is automatically “necessary” for the LEA to provide transport. (See R (Jones) v Ceredigion County Council [2004] ELR 506.)
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How is distance measured? |
There has been some judicial consideration of what constitutes the actual distance between the home and school. In effect, the courts have determined that it 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.)
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What is an available school? |
Note that the question of what is the nearest ‘available’ school is not the same as the school of parental choice. A student may be at a school of parental choice but if there is a nearer school at which the student could attend (albeit that the parent does not wish the child to attend there, for whatever reason), it may well be that the LEA is not required to provide transport. However, if the nearer school is not a suitable placement (for example, because it is full, or because there is some other objective reason as to why it is self-evidently not appropriate for the student; as opposed to being a school which the parent, even though for good reason, does not wish their child to attend), then the nearer school is not, in effect, an alternative school and does not figure in these considerations. In R – v – Kent County Council ex parte C [1998] ELR 108, the High Court refused to quash the refusal of the LEA to provide transport to the grammar school for which the student had been selected on the ground that there was a nearer ‘suitable’ comprehensive school, even though the parent did not wish the child to attend that school.
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Other situations when transport may be necessary |
However, distance of the nearest available school is not the only situation when transport may be ‘necessary’. For example, if a student is severely disabled so that he/she could not attend school, no matter how near it is unless transport is provided (perhaps because he/she cannot walk to school in any event) then the LEA is required to provide it any event. This arises regardless of whether the student has a statement of SEN.
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Students with statements of special educational needs |
Turning, then, to the position regarding students with statements of SEN, of course, if the nearest available school is more than two or three miles (depending on the student’s age) then transport must be provided. However, in addition, it may well be that the nature of the student’s learning difficulty/disability may mean that, no matter how near the school that the child attends is, it will always be ‘necessary’ for the student to receive transport provision made by the LEA. However, this will not be the case for every student with a statement of SEN since, by way of example, some students may have statements of SEN arising from their specific learning difficulties which do not otherwise inhibit their ability to walk to school or to use public transport so that, in those cases, the LEA will not be under a duty under Section 509 to arrange transport (subject of course to the distance criteria). Accordingly, apart from the distance criteria, each case will turn on its own facts. Turning now to whether or not transport should appear in a statement of SEN, it is likely that transport, as such, would count as ‘non-educational provision’ so as to appear in parts 5 and 6, rather than parts 2 and 3 of a statement. Indeed, Paragraph 8:89 of the Code of Practice anticipates that transport will only be in part 6, and only in exceptional cases ‘where the child has particular transport needs’. The implications of this are, of course, that, were transport to appear in part 6, then the LEA only has a power, and not a duty, to arrange it, pursuant to the provisions of Section 324(5)(a)(ii) of the Education Act 1996. However, in my view, it is not necessarily disadvantageous that transport may not appear in part 3 of a statement, since if transport is necessary pursuant to Section 509, then the LEA has a duty to arrange it anyway (whether or not it is set out anywhere in a statement), so that it is not necessary to rely on the separate duty to arrange special educational provision in part 3 of a statement (under section 324(5)(a)(i) of the Education Act 1996). Accordingly, in summary, even if transport is not mentioned anywhere in a statement of SEN (whether it be parts 2 and 3 or 5 and 6) it does not mean that the LEA has no duty to arrange transport, since they may have such an obligation under Section 509. However, again, it is not necessarily the case that every student with a statement will be entitled to transport, as this will depend on whether it is in fact necessary. Paragraph 8:87 of the Special Educational Needs Code of Practice expressly provides that where the parental choice of school is further away than an alternative school at which the LEA considers that the student’s educational needs can be met, the LEA may nevertheless name the parents’ preferred school but on the basis that the parents themselves arrange the transport. However, in a recent decision called R (on the application of M) v London Borough of Sutton (decided 06/02/07), the High Court made clear that the LEA must in those circumstances also name the nearer school that it considers can also meet the child’s needs. If the LEA does not name another school, then it would be obliged to provide transport to the named school. If two schools are named, but the parents dispute that the LEA’s nearer school can in fact meet the child’s needs, so that they wish for the LEA to provide the transport, it may then be necessary for the parents to appeal part 4 of the child’s statement to the Special Educational Needs and Disability Tribunal or the Special Educational Needs Tribunal for Wales, even though part 4 may in fact name the school preferred by the parent. This would be solely to establish that the LEA’s alternative school cannot in fact meet the student’s needs, and have it removed from the statement so that the LEA is then responsible for providing transport to and from the only school named in the statement (the parents’ preferred school).
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© David Ruebain 0208 881 7777 - phone druebain@levenes.co.uk |