Home to school transport does not come before the courts very often but it has arisen in the two interesting cases:
In R v Hereford and Worcester County Council, ex parte P (1992), the court found that transport from home to school for a child with SEN should be non-stressful.
“the LEA is under a duty to make such arrangements as it considers necessary for a child to reach school without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer ... it follows that where a child with special educational needs requires transport to get him to school the transport which the LEA proposes to make available must therefore be non-stressful transport …
Dudley Metropolitan Borough Council v Shurvington EWCA Civ 346 was a case about what happens where the LA says that there is nearer suitable school. The Court said that there was a specific process to be followed where the local authority was arguing that there was a nearer suitable school:
(1) The first stage is for the tribunal to determine the relative transport costs of the two schools, assuming the authority will have to provide transport to both.
(2) If the tribunal determines that the costs of transport to School B is not incompatible with the efficient use of resources, the tribunal must name School B and only School B, even if School A is also deemed suitable.
(3) If the tribunal determines that the cost of transport to School B is incompatible with the efficient use of resources then the tribunal may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.
The above analysis must be applied before a local authority can lawfully relieve itself of the duty to provide home to school transport.
Staffordshire County Council v JM  UKUT 0246 (AAC) was a recent case before the Upper Tribunal. The judge set out a useful explanation of how the LA should exercise its duty under s.508F Education Act 1996, emphasising that even if the LA do not determine it necessary to arrange transport for an ‘adult learner’, it has a discretion to pay some or all of the reasonable costs of transport if no other arrangement has been made.
It also made it clear that: “There are problems…” with paragraphs 9.214 and 9.215 of the SEN and Disability Code of Practice 2015. These are the paragraphs relating to transport which seem to suggest that transport arrangements can be included in a child or young person’s EHC Plan in “exceptional circumstances”. This, it was held, was contrary to s.508 Education Act 1996 and it was not possible to use statutory guidance to bypass statute.
The Judge said: “One problem is that 9.214 and 9.215 try to summarise a number of very different situations in as few words as possible thereby creating inaccuracy and confusion […] A Tribunal must apply the law. If a Tribunal finds guidance in the Code which flies in the face of legislative provisions, its duty is to apply the law as laid down by Parliament.”
This is a Court of Appeal case which clarified the issues where the LA was arguing that there was a nearer suitable school.
The court found that transport from home to school for a child with SEN should be non-stressful.
This was a recent case before the Upper Tribunal. The judge set out a useful explanation of how the LA should exercise its duty under s.508F Education Act 1996.
Our Tribunal Helpline Gives next step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call we will also assess whether you need casework support. Please click here to book an appointment to get one of our advisers to call you back.