The provision of transport for pupils with SEN, specifically the responsibility of local authorities (LAs) in this area is discussed here by Michael Segal
QUESTION: What steps should a local authority take in arranging transport for pupils with SEN?
ANSWER: the case of R (S) v the London Borough of Waltham Forest [2007] ELR 185 concerned W, 16, who was autistic. His school was more than statutory walking distance from home. The local authority (LA) provided transport to school in accordance with its duty under s. 509 of the Education Act 1996 (as amended by the Education Act 2002). W went to school, with two escorts, in a minibus because his behaviour could be disruptive and uncontrolled.
The school sought to remove W, but in 2006, SENDIST confirmed his placement. W’s parents, Mr and Mrs S, assumed that the earlier travel arrangements would continue but the LA, without any discussion with Mr and Mrs S, offered 'transport assistance'. This was a fuel allowance for Mrs S to drive W to school and back every day, which cost less than hire of a dedicated vehicle to do so.
The local authority duty
Mr and Mrs S went to the transport appeal panel, saying that the LA should provide not just 'transport assistance' but actual transport. The panel dismissed the appeal.
Mr and Mrs S went to the High Court. Section 509 of the 1996 Act says that the LA must make such arrangements for the provision of transport, free of charge, as it considers necessary for the purpose of facilitating school attendance.
This imposes an obligation on the LA to provide free transport to school for children living outside the statutory walking distance.
The transport policy statement
The amendment to s. 509 introduces a new regime for children 'of sixth form age' — i.e. over 16 — in which the LA must prepare a transport policy statement specifying the arrangements for the provision of transport that it considers necessary for facilitating the attendance of such young people at schools.
The statement must:
- specify arrangements the LA considers necessary for financial help with such young people’s travelling expenses
- include arrangements for facilitating attendance of young people with learning difficulties
The LA must ensure that effect is given to such arrangements. It must have regard to transport costs and to any alternative means of facilitating the attendance of such young people.
Waltham's policy statement
The London Borough of Waltham Forest's statement provided that:
- the individual child's special needs would be considered
- transport would be provided where the child’s learning or behavioural difficulty put him or her at risk
- public transport was the first option
- it would consider provision of any other form of transport where the child’s needs warranted this
- alternative arrangements might include the reimbursement of parents who used their own vehicle
- only in exceptional circumstances would private hire vehicles be considered — e.g. parents not having their own transport and the child being a risk to him/herself or others on public transport
The effect of the statement was that, in the case of a child with SEN, the LA had a discretion, but not an absolute duty, to provide transport, rather than 'transport assistance'.
The decision
The court held that the LA's policy statement complied with the 1996 Act, which required the LA to facilitate the attendance of sixth formers at school by provision of transport or otherwise, including financial assistance. That these were alternatives was made clear by the words 'or otherwise'.
The LA’s decision was not illegal but it was flawed and subject to review by the court. Given that there was a complete change in the LA’s position, even if justified, it was wrong that the decision was made without discussion with the parents, and wrong to assume it appropriate for Mrs S to drive W to school.
It was not wrong to refuse transport to a child with SEN if a parent could drive him or her to school, because parents had obligations too. There was no rule that parents of children who could not travel to school on their own must take them, but what could be expected would turn on the facts of each case.
The LA offered to reconsider the parents’ application for transport. The judge set out what it should consider, including the effect on Mrs S of driving W to school, the effect on W, and the possibility of shared transport.
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