How we help Get support SEN and disability law SEN and disability case law Case summaries Staffordshire County Council v JM (SEN)  UKUT 246 (AAC) The case concerned a 21-year-old young person with special educational needs who had an EHC plan. A college some distance from her home was named in the EHC plan. Under the relevant sections of the Education Act 1996 s.508F: “(1) A local authority in England must make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct, for the purposes mentioned in subsections (2) and (3). (2) The first purpose is to facilitate the attendance of adults receiving education at institutions— (a) maintained or assisted by the authority and providing further or higher education (or both), or (b) within the further education sector. … (4) Any transport provided under subsection (1) must be provided free of charge. … (6) In considering whether they are required by subsection (1) to make arrangements in relation to a particular adult, a local authority must have regard (among other things) to the age of the adult and the nature of the route, or alternative routes, which the adult could reasonably be expected to take. … (8) A local authority in England may pay all or part of the reasonable travelling expenses of an adult— (a) receiving education or training at an institution mentioned in subsection (2) or (3), and (b) for whose transport no arrangements are made under subsection (1).” The parents argued that H could not take public transport to and from the institution, and they could not provide transportation for H reliably because of their own health problems. If she was transported to and from the institution by third parties, she needed to be accompanied by a female attendant because of her particular vulnerabilities. They argued that due to H’s needs, the local authority (“LA”) had to provide transport. The First-tier Tribunal had ordered that transport arrangements be included in the EHC plan. They looked at the SEN and Disability Code of Practice (the “Code”), in particular paragraph 9.215: “Transport should be recorded in the EHC plan only in exceptional cases where the child has particular transport needs.” The LA appealed. The Upper Tribunal agreed with the LA that, in this case, transport could not be included in an EHC plan as special educational provision. Looking at the definitions in the Children and Families Act 2014 of SEN and special educational provision: “it cannot be sensibly argued that a need for home to school transport arises from a ‘learning difficulty’ in and of itself. Nor, on the wording, can home to school transport be classed as a form of special educational provision”. Paragraph 9.215 of the Code could be wrongly interpreted as a free-standing rule allowing transport needs to be included in an EHC plan, but if a tribunal found guidance in the Code which contradicted legislative provisions, its duty was to apply the law as laid down by Parliament. In terms of the LA’s duties under s. 508F, the Upper Tribunal stated: “The Local Authority has a duty to make arrangements for H if they consider that to be necessary having regard to all of the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangements and the transportation must be free of charge.” Additionally, as a result of s. 508F(8), “Even if they do not consider it necessary, the Local Authority has a residual discretion to pay some or all of the reasonable costs of transport if no other arrangement has been arranged”. The full case report Staffordshire County Council v JM (SEN)  UKUT 246 (AAC) can be viewed online.