New initiatives, including travel plans and school transport advisers, are being introduced. Managers ignore these at their peril, writes Ingrid Sutherland.
The main school transport duties pertain to local authorities (LAs). But schools must be aware of the duties because they have to give LAs information, advise parents of their rights and responsibilities, and draw up a school transport policy and travel plan.
In this article, there is a summary of the law on school transport, with guidance on how to interpret it. Then we look at government initiatives for improving home-school travel arrangements.
THE LOCAL AUTHORITY DUTY
LAs must make arrangements for the provision of transport ‘and otherwise’ as they consider necessary, or as the secretary of state directs, to facilitate the attendance of persons receiving education (s.509 Education Act 1996).
The duty applies to:
- pupils of school age (5-16) and below
- schools, and FE and HE colleges
LAs may have to make other provision, e.g. escorts, if this is necessary to ensure school attendance.
In deciding whether to provide free transport, LAs must consider: 1. the child’s age 2. reasonable routes to school
3. parental wishes that the child attend a school of the religion to which the parent adheres
Statutory walking distance (SWD)
Pupils get free transport if:
- they attend their nearest suitable school, and
- it is beyond statutory walking distance, which is two miles for pupils under eight, and three miles for those of eight and over
This is measured by the nearest available route that a child may walk with reasonable safety. It is for the LA to consider each case on its merits. What this means has been considered in case law.
When is a route ‘available’?
For a route to be available, it must be a route to school, along which a child, accompanied as necessary, can walk with reasonable safety. The House of Lords held that a county council acted reasonably in not providing free transport to a 12-year-old. Her school journey was 2.94 miles from home, via an unlit country track.
The dangers of a route are factors to consider — but if the danger can be eliminated by accompanying the child, then the route may still be available. In this case, it was reasonable to expect the child to be accompanied to school. Essex CC v Rogers 
‘Necessary’ means that the transport must be ‘really needed’ to help the child attend school George v Devon CC .
What is ‘really needed’ is a question for the LA to decide, taking into account all the circumstances. The child’s health may be one relevant factor. So, for example, a child who suffers from severe asthma may require free transport — even when the school is very close to his home. Medical evidence will be required. Similarly, a looked-after child’s particular social needs may call for transport — and again, evidence will be required.
Accompanying a child
In the Devon case (above), the boy lived 2.8 miles from his school, and so within the SWD for a nine-year-old. The LA provided free transport until he turned eight. Then it said he should walk.
The route to school was along an unlit country road with no footpath, which heavy farm vehicles used. The LA argued that the boy could be accompanied.
The court held that, when considering if transport was really necessary, an authority could expect a child to be accompanied, because parents have a legal duty to ensure their child’s attendance.
This might include accompanying a child in situations where it is unsafe for the child to go alone.
Suitability of school
A pupil attending his or her parent’s preferred school outside the SWD may not get free transport if a place in a closer suitable school is on offer. Suitability must take into account both location (closest) and the individual child (ability and aptitude).
- In R v Vale of Glamorgan CC ex parte J , the parents feared that the racist bullying their son suffered in primary school would continue at the nearer school the alleged bullies were to attend. The court held that an LA’s refusal to offer free transport to a secondary school beyond the SWD was not perverse on the facts, as there was a school nearer to his home.
So parents cannot demand free transport to a school irrespective of distance to the school and availability of other suitable schools nearer home.
- In R v Essex CC, ex p C , and R v Kent CC, ex p C , it was held that a grammar school might be more suitable, but that did not make a closer (non-grammar) school unsuitable.
Relevant factors in determining the suitability of a school include the reasons for parental preference (e.g. English-speaking children wanting to attend an English language school in Wales; nearest school was Welsh-speaking; free transport refused to further English school as closer Welsh school suitable). Such reasons are important, but not decisive — R v Dyfed County Council ex parte S .
‘Other factors’ could include:
- suitability of preferred and alternative school
- finance, including avoidance of unreasonable public expenditure
- policy considerations (e.g. language and school transport policies)
If a child does not attend the nearest suitable school, the LA may still help by paying all or part of the child’s travelling expenses. It is up to the LA to decide whether to make any concessions of this sort, and these may be withdrawn if circumstances change (e.g. if pupils who are entitled to free transport need spare seats).
Publication of policies and appeals
LAs have a duty to publish their policies including:
- provision of free transport
- cost of transport that is not free
- provision of transport for SEN pupils
Assistance with costs
Even if there is no right to free transport, an LA must consider an application for help with the costs.
The LA must have arrangements to allow families to appeal any transport decisions made. Most LAs have established an appeals committee to hear cases of parents who are not satisfied with transport decisions. See for example: www.devon.gov.uk/index/learning/getting_to_school/school_transport/school_transport_appeals.htm
PROSECUTIONS FOR PUPILS’ NON-ATTENDANCE
This ties in with a LA’s duty to provide free home-school transport for children attending schools outside the SWD. In law, parents can be taken to court for failing to secure the regular attendance at school of their child, but they would have a defence if:
- their child lives outside the SWD, and
- their LA failed to arrange suitable transport
So an LA would have to provide free transport to a pupil if the pupil’s parents would otherwise have a defence to prosecution for failing to ensure regular school attendance — R (ota of Jones) v Ceredigon County Council .
Suitability of transport
The Devon case, above, said travel arrangements are ‘suitable’ when:
- they enable a child to reach school without stress, strain or difficulty that may prevent him or her from benefiting from the education provided
- allow the child to travel in reasonable safety and comfort
In R v Hereford and Worcester County Council ex p P , it was held that proper provision depended on the child’s needs and not on what the authority could afford; and that the s509(1) duty implicitly included a need for transport to be non-stressful.
Provision varies greatly from one authority to another and it is often difficult for parents to be sure exactly who is responsible for their child’s safety. This difficulty is increased when LAs refuse to take responsibility for services provided by service contractors and when schools do not wish to become involved in matters of discipline on any kind of transport they have not provided themselves.
Safety considerations include:
- the state of the vehicle (including the requirement that minibuses and coaches have seatbelts)
- the competence of the driver and the adequacy of the crew, if any
- the conduct of the vehicle during the journey and when passengers board and alight
- seating arrangements
- the discipline and conduct of the passengers
Any escorts would be covered by this as well.
Any transport staff (such as drivers and escorts) should undergo a criminal records bureau check before employment.
Disability equality training should also be taken into account.
There are no guidelines for what is a reasonable journey time. This will depend on the age and individual needs (e.g. SEN) of a child and the nature of the route.
SPECIAL EDUCATIONAL NEEDS
SEN transport policy is the responsibility of individual LAs: entitlement should be based on a child’s needs. As discussed, LAs are only under a duty to provide free transport to a child’s nearest suitable school, provided it is beyond SWD of their home.
The nearest suitable school for a pupil with SEN, with or without a statement, may well be different than that of other pupils, and walking may not be an option. But the principle still holds: if a child is attending a school of parental preference, i.e. not the one that the LA considers the nearest suitable, there is no duty to provide free transport.
LAs do not have a duty to provide transport to a school simply because that school is named on a statement. It is for the LA to consider each case on its merits.
DfES guidance states that authorities should adopt a consistent and clear definition of SEN transport, and a clear statement of policies. See ‘Home to school transport for children with SEN: good practice guidance’ (DfEE/0068/2001). See also: www.teachernet.gov.uk/wholeschool/sen/sentransport/
The SEN code of practice says that such policies must set out transport arrangements that are over and above the general requirements in section 509 of the Education Act 1996 (see above).
Transport provision may, where the pupil has particular transport needs, be included in a pupil’s SEN statement: usually in part 6 (non-educational provision, where the authority has discretion whether or not to make the provision); and occasionally in part 3 (SEN provision, where the LA must provide it), depending on the needs of the particular child.
This is in addition to the duty to provide transport as is necessary to enable any child to attend school.
Pupils over school age
Pupils over 16 also may be entitled to help. This will depend on individual LA published policies. It is a legal requirement for LAs to publish a transport policy statement for sixth- form-age students annually.
In all cases, applications for free transport, spare seats on school buses or assistance with fares should be made to the LA in which the family resides.
SAFER ROUTES TO SCHOOL
The Government is encouraging safer routes to school. One way is by encouraging schools and LAs to work with the local community and transport planners in finding alternative ways for getting to school without driving.
In September 2003, the DfES and department for transport published ‘Travelling to School: an action plan’ and ‘Travelling to School: a good practice guide’, setting out what is being done to encourage more walking and cycling, and what the Government intends to do to help schools and LAs increase the proportion of pupils walking, cycling or taking public transport to schools.
Under the plan, the Government will fund schools and LAs to increase walking, cycling, and use of buses. Plans include:
- a network of expert school travel advisers in all LAs to help schools draw up and implement travel plans
- for schools with a signed-off travel plan, a capital grant for facilities to encourage more walking and cycling
- car-sharing schemes, which allow schools, either informally or through databases, to identify: parents prepared to share the car journey to school; and parents prepared to escort children to school on foot, by bicycle or on public transport
- ‘A Safer Journey to School’, written by Transport 2000 and published by the DfES, providing step-by-step advice for parents, teachers and governors on developing a school travel plan
School travel advisers will be responsible for working with schools, and local education and transport authorities to produce strong and effective travel plans.
A school travel adviser toolkit,
with documents, links and other information is at www.teachernet.gov.uk/wholeschool/sd/managers/travel/STAtoolkit/
The school travel adviser should always be a school’s first point of call for advice on school travel plans.
SCHOOL TRANSPORT POLICY AND TRAVEL PLAN
Schools are not under a legal duty to have either of these, but it is good practice. School travel advisers and guides are useful resources; many LAs have websites (See for example, www.cambridgeshire.gov.uk/transport/safety/routes_school/stps) and the DfT website is useful.
A POLITICAL ISSUE
In today’s climate of heightened awareness of the health of our children and the need to protect our environment, as well as the concept of choice in school admissions, transport provision is becoming a political issue. It is unlikely that the law will change, but the LA duty will widen, and schools ignore this at their peril.
Ingrid Sutherland is a solicitor, giving advice and training at the Advisory Centre for Education.