Local Government Ombudsman could go further to combat discrimination against children with disabilities and SEND 17/03/2017 03:06

The Local Government Ombudsman (LGO) has today published a report on home-to-school transport policies, and the impact these are having on children and families. The Independent Parental Support Education Advice (IPSEA) charity welcomes the LGO’s report, but believes it should go further in clarifying the confusion around this area of law and emphasising a Local Authority’s legal duties.

In 2015/16 the LGO experienced a 63% increase in complaints relating to transport, and are upholding the majority of parents’ complaints. The LGO has found a range of poor practices and made a number of recommendations to address these.

For the families of children with special educational needs and/or disabilities (SEND), with whom IPSEA works, getting their child safely to school can be a source of significant difficulty. Children with mobility issues, a lack of awareness of their surroundings, or difficulties around social interactions, for example, cannot be expected to travel to school alone. This is one of the top five reasons parents reach out to IPSEA for support. IPSEA is aware of a range of unlawful and discriminatory practices by Local Authorities in this area.

IPSEA is concerned that the LGO’s comments on a parents’ duty to accompany a child with SEND to school misrepresent the legal position. The LGO’s report reflects the current Department for Education guidance, which states, “The general expectation is that a child will be accompanied by a parent where necessary, unless there is a good reason why it is not reasonable to expect the parent to do so”. However, the guidance is flawed in that there is no reference to accompaniment anywhere in Education Act 1996.

IPSEA frequently encounters Local Authorities who wrongly proceed on the basis that a child must be accompanied unless the parent can prove exceptional circumstances. Parents may be informed that it is their legal duty to accompany their child to school, using the statutory guidance to justify this position. This is unlawful - imposing a higher threshold than contained in statute. Local Authorities should be directed that there is no basis in law for refusing a child-free transport simply because a parent is theoretically able to accompany them to school. Arguably, it is a discriminatory practice as parents of older children without a disability would not be expected to accompany them.

IPSEA welcomes the LGO’s recommendation that Local Authorities should have regard to health and safety issues as well as mobility issues when considering children with SEND. However, IPSEA is aware that a large number of Local Authorities conflate the eligibility criteria, for example stating that children with SEND would only be entitled to transport if they live outside ‘statutory walking distance’. The LGO should give clear direction to Local Authorities on the underlying law, which makes it plain that the categories of eligibility are separate and must not be conflated.

The LGO report fails to accurately set out the position around ‘nearest suitable schools’. The wording in the report mirrors the SEN Code of Practice 2015. This wording was recently criticised by the First Tier Tribunal as “creating inaccuracy and confusion”, as it does not properly direct Local Authorities to their duties around transport for children with EHC Plans.2 This has resulted in some parents being unfairly made to waive their child’s legal entitlement to transport in order for them to attend their preferred school. The LGO did not address this issue, which is a great concern for many families of children and young people with SEND.

IPSEA welcomes the clear message that being in receipt of higher rate Disability Living Allowance does not preclude a child from being eligible for school transport. IPSEA believes that the LGO could have emphasised more strongly that children with SEND (albeit without a Statement of SEN or EHC Plan) are still potentially eligible for free school transport. It is a common misconception that only children with Statements/EHC Plans are eligible for free school transport, and IPSEA’s policy work has uncovered a lack of understanding in this area.

About IPSEA

With over 300 volunteers, and assisting nearly 7000 parents and young people annually, IPSEA (Independent Parental Special Education Advice) is recognised as one of the leading organisations in special educational needs and disability (SEND) law. Established as a registered charity in 1983, IPSEA provides advice and advocacy to parents of children and young people with SEND.

IPSEA is an entirely independent organisation focussed on enabling every child with special educational needs and or disabilities to obtain the best education possible. We promote the interests of children and young people with SEND by working with the government, local authorities (LAs), schools and interested third parties.

IPSEA offers various services from training to free telephone advice and Tribunal support and representation.

This information has been prepared with regard to the evidence recorded from beneficiaries of IPSEA services and with input from IPSEA’s specialist legal team.

For further information, please contact Susan Curtis, Fundraising & Communications Manager, on 01799 582 030 or at scurtis@ipsea.org.uk.

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