Case overview

A 21-year-old young person with special educational needs (SEN) had an EHC plan, which named a college some distance from her home.

Section 508F of the Education Act 1996 states that local authorities (LAs) must arrange transport they consider necessary to support adults in attending education at a setting either:

• maintained or assisted by the LA and providing further or higher education (or both), or
• within the further education sector.

When deciding if transport arrangements are necessary, LAs must have regard to (amongst other things):

• the age of the adult, and
• the nature of the route, or alternative routes, which the adult could reasonably be expected to take.

When transport is considered necessary, it must be free of charge, but LAs can choose to pay all or part of the expenses for adults attending the above placements even where these arrangements are not considered necessary.

In this case, the young person’s parents argued that she could not take public transport to and from the institution, and they could not provide transport for her 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 these needs, the LA had to provide transport.

The SEND Tribunal ordered that transport arrangements be included in the EHC plan. It 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 this decision to the Upper Tribunal.

The Upper Tribunal considered the legal definitions of SEN and special educational provision in the Children and Families Act 2014, and agreed with the LA that, in this case, transport could not be included in an EHC plan as 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 the tribunal must apply the law as laid down by Parliament, rather than follow statutory guidance where it contradicts the law.

In terms of the LA’s duties under section 508F, the Upper Tribunal stated that the LA must make transport arrangements if it considers it necessary after having regard to relevant circumstances, and explained that this is a duty not a discretion. When an LA does not consider transport arrangements to be necessary, it can still choose to make arrangements or pay some of the reasonable costs towards transport.

What does this mean?

For adult learners, LAs must make free transport arrangements where they are attending a further education setting or a setting maintained or assisted by the LA which provides further or higher education, and transport is necessary. Where transport is not considered necessary when looking at the individual circumstances, an LA can still choose to make transport arrangements or pay part of the cost of these. These arrangements would not typically be included in an EHC plan as they are not special educational provision. 

The full case report Staffordshire County Council v JM (SEN) [2016] UKUT 246 (AAC) can be viewed online.