Guest Posts, SEN Transport, SEND Law, special needs

New School Transport Guidance ignores both equality and case laws protecting disabled learners

by Eleanor Wright, CEO of SEND legal charity, SOSSEN

As well as updated exclusions guidance, the Department for Education also issued updated guidance on school transport just before the summer holidays. Eleanor Wright, CEO of SEND legal charity, SOS!SEN

The Department for Education issued new guidance on school transport in June 2023: Travel to school for children of compulsory school age:  Statutory guidance for local authorities (pdf). Although the underlying law (s508 Education Act 1996) has not changed since it was inserted into the Act in 2006, this is the third version of the guidance that has been issued.

The motivation behind the changes is in part research carried out by Contact in 2016-17, which confirmed the fact all too well-known to parents that many local authority transport policies are difficult to find, obscure and unlawful. The changes were consulted on in 2019 but were not updated despite the effects of the pandemic on children’s mental health and the like.

Nevertheless, the good news is that the DfE has in part succeeded in its declared aim of clarifying the guidance, and there are elements which promise to be distinctly useful to parents in the perennial fight to make LAs comply with the transport obligations. 

What does the updated guidance say?

LAs are reminded that, for example:

  • They must consider each transport application on its own merits and should not be rigidly sticking to their policies.
  • They have duties under the Equality Act 2010, including the duty not to discriminate on the basis of disability.
  • Children with SEND or who have mobility difficulties may be eligible for transport even if they live within statutory walking distances, and do not have to have an EHCP.  In our experience, it still seems to surprise some LAs that children with SEND living within walking distance of their school are eligible for transport.
  • Provision of transport costs must cover both return journeys unless it is inappropriate, e.g. if the parent works near the school. This demolishes a favourite tactic of some councils, that an agreement is to pay for transport only for those legs of the school journey when the child is actually in the vehicle.
  • Means, including disability benefits, are not to be taken into account.
  • LAs must give as much notice of changes to transport arrangements as possible, given they’re frequently dealing with children who have difficulty with changes in routine. At this time of year, with the new term just started many parents still waiting for confirmation of transport details, so it may be worth reminding LAs of this.
  • LAs must take reasonable steps to meet medical needs (e.g. anaphylactic shock, asthma, seizures) during journeys.
  • Behavioural problems on transport are often the result of SEND, and transport can only be withdrawn as a last resort. LAs will still have to meet their education duties to the child concerned and cannot simply tell parents it’s their responsibility. Many LAs’ polices have in the past included a provision allowing them to withdraw transport due to poor behaviour. 
  • LAs cannot assume parents will provide transport without their consent. It is unlawful to insist without consent to limiting transport provision to, for instance, a travel allowance or mileage for parents. LAs also need parental consent for arrangements for providing escorts, including expecting parents to act in that capacity.
  • The guidance states that LAs may “consider it appropriate” to make arrangements for transport at times other than the beginning and end of the school day for children who cannot attend all day, such as for medical reasons. However, we suggest this is inadequate: there is nothing in the statute limiting the transport duty school hours.
  • Local transport policies must be published on LA websites and in the SEND Local Offer. They should be easy to find, clear, and give information on how to apply for free transport, plus how to appeal.

Clarification on the “nearest suitable school”

Some clarification is also given around the fact that the transport duty is limited to children attending the nearest suitable school, i.e. a qualifying school that is suitable for the child’s age, ability and aptitude and any SEN. This doesn’t mean the most suitable school and for most children, the nearest school to the child’s home will be the nearest suitable school if it can offer a place. There is welcome confirmation that, if the child cannot attend the nearest suitable school as it is full but a place later becomes available, LAs should not expect them to move or withdraw transport if they don’t. 

Where the child has an EHCP, the school named (including independent schools) will normally be considered the nearest suitable school. LAs can name a preferred school which is not the nearest conditionally on the parent paying some or all of the travel costs, which should be recorded in writing. The guidance recommends that this should be by way of a formal letter, but this is directly contrary to established case law (S v Dudley MBC [2012] EWCA Civ 346) and, importantly, would take away the right of parents to challenge these issues through the Tribunal. 

Why the new transport guidance conflicts with case law…

If section I states, for example, that the LA considers X school to be suitable, but is naming Y school on condition that the parents provide transport, the assertion that X is suitable can be challenged through the tribunal. If it is only stated in an accompanying letter, it cannot. This needs to be revised urgently.  

In deciding what is the nearest suitable school, the LA needs to be able to demonstrate that the school they say is nearest does actually have a place available. This gives rise to the question of children without EHCPs applying through the normal admissions system, who don’t get a place at the nearest school simply because their parent did not put that school on the list when applying, so that it is full at the point when transport is applied for. 

The guidance protects the LA position on this, saying it can assess whether the child could have been admitted to the nearest school if the parent had, in fact, listed that school. The LA can have policies to say if a parent is applying for free travel, they must put the nearest suitable school on the admission application list.  

The guidance refers frequently to the increasing cost of providing transport, and unsurprisingly, this has affected some aspects of the changes.

L to R: Welsh Tribunal President, Judge Jane McConnell with a grey fringed bob, Tania of SNJ with blonde parted bob and purple top, SOSSEN CEO, Elanor Wright with grey haor and glasses. They are all smiling in front of an SOSSEN banner
Eleanor Wright (right) shown here in 2018 with (now) Welsh Tribunal President, Judge Jane McConnell (left) and SNJ’s Tania Tirraoro (centre)

Children who could walk to school if accompanied

The need for saving money is likely to be behind a controversial change about children with SEND who could walk to school if accompanied. The previous guidance said LAs could take into account whether there would normally be an expectation that a child of the relevant age would be accompanied on the way to school.

This has now been changed. The guidance states if children are within walking distance and could walk if accompanied, they will not be eligible for transport even on unsafe routes or if they have SEND or mobility problems. The general expectation is that a parent will accompany them or will make other suitable arrangements. 

However, LAs should not have a blanket policy that they will never arrange transport in such circumstances. The circumstances they can take into account are now much more restrictive, being limited to such matters as whether the parent has a disability or mobility problem. It is expressly set out that matters such as the parent’s work or that they have children attending more than one school will not normally be considered valid reasons for needing transport.

The guidance does acknowledge that non-disabled children of secondary school age might be expected to walk. However, LAs are only asked to be “sensitive” to the particular challenges that parents of children with SEND and mobility problems may face. The examples given in the guidance of how such sensitivity might work again suggest concessions would only be made to parents who are themselves disabled.

Guidance again incompatible with the law

Here the guidance ignores the law again. LAs may only make travel arrangements that include arrangements made by parents if parents agree. If a parent cannot, or will not, act as escort to take their child to school, the LA cannot force them to do so. It also wholly ignores the LA’s equality duties: they should take into account that it is inevitable that families of children with disabilities will be adversely affected by this whereas the families of non-disabled parents are not, including that it’s much more common for disabled children to be placed in different schools from their siblings. How does a single parent get an older child with SEND to a specialist school at the same time as taking other young children to school? Are they expected to put the family home in jeopardy by giving up their jobs to facilitate transport?

So, overall, the guidance is a partial improvement, but it is a real pity that there remain areas where children’s rights come second to saving costs.

SNJ says: If you care about this issue, you can contact your MP with your views and send them a link to this article.

About Eleanor Wright

Eleanor Wright is CEO of SEND legal charity, SOSSEN. She is a solicitor who has been specialising in Education Law for over 20 years, especially cases involving SEND and social care issues.

Eleanor was previously a partner at Maxwell Gillott. Eleanor has been a school governor for over 20 years, has a long involvement with the Dyslexia Association and experience of sitting on and chairing school admissions and exclusion panels. She has been involved in a number of advice centres, workshops and training sessions with SOS!SEN for many years.

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