IPSEA is frequently contacted by parents facing difficulties with home-to-school transport. The law in this area is quite complicated and there is a lot of confusion around what a local authority’s (“LA’s”) duties are. There is more detail about this in IPSEA’s information on home to school transport.

For all children of compulsory school age

For children of compulsory school age, children who live outside of statutory walking distance (2 miles for those under 8 and 3 miles for those aged 8 and over) are entitled to free transport. Additionally, the law sets out that if a child lives within statutory walking distance they will still be entitled if they are from a low income family, their route to school is unsafe or they have special educational needs (“SEN”), a disability or mobility problems which mean that they cannot reasonably be expected to walk to school. There is no requirement for the child to have an Education, Health and Care plan ("EHC plan") in order to be entitled to transport on the grounds of SEN or disability.

The key area where dispute often arises is about the ‘nearest suitable school’. Generally, children are entitled to transport to their nearest suitable school. Any nearer schools which are unable to meet your child’s needs, or do not have a place available for your child, do not count as a nearer suitable school.

For children with EHC plans

If your child has an EHC plan which names just one school in Section I, then your child is entitled to transport to that school because the LA has not made arrangements for them to attend anywhere closer.

LAs will often say that if your child is not attending their nearest suitable school, then you are not entitled to free transport and you must pay for it. Section I of the child’s EHC plan will name two schools, and will contain a ‘condition’, saying something like “The LA believes the child’s needs can be met at School A. Parental preference is for School B. The child will attend School B on the condition the parents pay for transport.”

It’s important to understand exactly what the law says in this area. The case of S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346 confirmed that there are three steps the LA must consider:

• Are both schools in fact suitable, and is there a place available at the LA’s proposed closer school? If the LA’s choice is not suitable, or there is no place available, then the parent’s choice is the nearest suitable school, and it should be named in the EHC plan unconditionally.
• If both schools are suitable, what would the cost be of providing transport to each of the schools?
• Is the cost of the parents’ choice of school significantly more expensive than the LA’s choice of school (including transport costs for both), to the extent that it represents an inefficient use of resources? If so, then the LA can name two schools, with the condition the parents provide transport to their choice of school. If the cost difference is not significant, then the LA must name the parents’ choice unconditionally.

IPSEA has written a summary of this case which you can read here.

Problems with LA policies

Unfortunately, a lot of LAs do not reflect the law in their home to school transport policies. Research by Contact in 2017 found that over 50% of LA transport policies included unlawful restrictions (similar findings were made in research by Cerebra and the University of Leeds in the same year).

In particular, many local policies do not reflect the test established by the Court of Appeal in the Dudley case above. It is well established that law is developed and, in some cases, made, by judges via the creation of legal precedents, through court decisions. As such, this could only be changed by either a decision of the Supreme Court or a change in the statute law itself.

What can parents do?

If you are affected by an unlawful policy and you think your child should be entitled to home-to-school transport, there are a number of options. You can make a complaint against the LA, and if you don’t get an adequate response from the LA’s complaints procedures, you can complain to the Local Government and Social Care Ombudsman.

If your child has an EHC plan containing a condition in Section I (stating that you need to pay for transport) but either...

• your child is attending their nearest suitable school with a place available; or
• the difference in cost between the LA’s and your choice of school (including the cost of transport) is not unreasonable

...then you should ask the LA to name your choice of school unconditionally in Section I. If they will not do this, you can appeal to the SEND Tribunal. If you aren’t currently within the time limit to appeal, you can do this after your next annual review.

If you have an issue which you can’t find the solution to on our site, then you can make an appointment to speak to one of our advisors.