Under s. 508B of the Education Act 1996, local authorities (“LAs”) are obliged to provide free, suitable transport for children with special needs or disabilities who cannot reasonably be expected to walk to school. If a school is named unconditionally in an EHC plan, then it is the child’s nearest suitable school, and transport must be provided if necessary.

However, if there is a closer suitable school, the LA can put wording in Section I to the effect that: “The closest suitable school is ‘A’ School. The parents have expressed a preference for ‘B’ School. The child can attend ‘B’ school on the condition the parents pay the cost of transport”. This case sets out the scenario in which an LA is permitted to do this.

This case concerned a Statement which included similar wording. The child, J, had begun a very gradual integration into reception class at B School, a special school for pupils with moderate learning difficulties and other more complex difficulties. He seemed happy there and his parents wished him to attend there.

The LA considered J’s needs could be met in a closer special school for pupils with moderate learning difficulties, A School, and argued it was only obliged to provide transport to the nearest suitable school. As B School was further away, the LA argued that the parents should be responsible for all travelling expenses. B School was named in the Statement but on the condition that the parents were responsible for transport. The parents appealed against this.

The Court of Appeal set out the test that LAs should apply when determining whether or not they were obliged to pay for transport to a parent’s choice of school:

1. First it should be established whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the LA’s choice of school (i.e. a place is available). If the LA’s choice is not suitable, or there is no place available, then the parent’s choice is the nearest suitable school.
2. If both schools are suitable, the cost of providing transport to both should be established and taken into account when considering whether the parent’s choice is incompatible with the efficient use of resources.
3. Only if the total cost of the parent’s choice of school compared to the LA’s choice of school (including transport) is so significant as to represent an inefficient use of resources, then the LA can name two schools, with the condition the parents provide transport to the their choice of school.

In this case, the difference in cost between transporting J to B School rather than A School was small, and so was not an inefficient use of resources. Therefore the LA was obliged to provide transport, and B School would need to be named unconditionally in the EHC plan.

The full case report for S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346 can be viewed online.