Case overview

Under section 508B of the Education Act 1996, local authorities (LAs) must provide free, suitable transport for children with special educational needs (SEN) or disabilities who cannot reasonably be expected to walk to school. If a school is named without a condition in an EHC plan, then it is the child’s nearest suitable school, and transport must be provided.

However, if there is a closer suitable school, the LA can put a condition 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 when an LA can do this and the process it must follow in making this decision.

This case concerned a Statement (now an EHC plan) which included similar wording. The child 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 wanted him to go to school there.

The LA considered the child’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 must pay for transport to a parent’s choice of school for a child eligible for transport:

1. First it should be worked out whether both schools are in fact suitable, and whether arrangements could be made for the child to attend the LA’s choice of school (that is, 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 and a place is available at both, the cost of providing transport to both should be calculatedand 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 their choice of school.

In the Dudley case, the difference in cost between transporting the child to B School rather than A School was small, and so it was not an inefficient use of resources. Therefore, the LA had to provide free, suitable, home-to-school transport, and B School would need to be named unconditionally in the EHC plan.

What does this mean?

When deciding whether the duty to arrange home-to-school transport can be passed on to parents, an LA must follow a process to consider whether both the LA’s choice of school and parents’ choice of school are suitable, and then whether the additional cost of the child attending the parents’ school would represent an inefficient use of resources. An LA must not include a condition regarding parents arranging transport in section I of an EHC plan without following this process and determining that it would be an inefficient use of resources to arrange transport to the school.

If your LA includes a condition regarding transport in your child’s EHC plan, you can appeal to the SEND Tribunal to request that the condition is removed. 

The full case report for Dudley Metropolitan Borough Council v Shurvinton & Ors [2012] EWCA Civ 346 can be viewed online.