The law on school transport, and why costs for getting disabled children to school are so high

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Last week, we ran an article from the National Audit Office about SEND transport costs. Today, solicitor, Eleanor Wright, Legal officer at SOS!SEN has written an update on the current law for home-to-school SEND transport costs.

The cost to local authorities of providing school transport is a perennially thorny issue. There’s no doubt that these costs take up an eye-wateringly large chunk of LA budgets. Indeed, the Local Government Association (LGA) claims SEND transport costs could reach nearly £2 billion in the current financial year.

Unfortunately, this often feeds into a highly misleading picture—one where so-called “sharp-elbowed” parents can apparently “buy” diagnoses for their children, or “demand” expensive independent school placements and equally expensive taxi provision to get them there.

The widespread lack of understanding

In a recent article, the Daily Telegraph claimed an increase in children going into specialist provision had led to more children needing to be transported for longer distances, putting growing pressure on already squeezed budgets.

The article also blames the increased costs on an “explosion” of pupils travelling by taxi rather than using bus passes or minibuses. Their conclusion? Simply place fewer children with SEND in specialist schools. Let’s not worry about whether mainstream could actually meet these children’s needs of course.

Sadly, the Daily Telegraph article is in no way unusual in failing to recognise the real issues surrounding home-to-school transport.

Eleanor Wright is an older woman with auburn hair in a bob, glasses, and a pleasant smile — Eleanor Wright

Needlessly expensive transport arrangements

The right to free home-to-school transport has been in place since 1944 and is not restricted to children with SEND. It is available to any child of compulsory school age in England and Wales attending their nearest suitable school, if it is outside statutory walking distance (three miles for secondary-aged children, two miles for primary).

It is often a vital service for children with SEND as they may not be able to walk to school or use public transport on their own. Transport becomes particularly tricky if they attend specialist schools while their siblings are taken to mainstream schools.

Costs here have risen in part because of a lack of sensible budget controls, but also because LAs have chosen not to organise school transport themselves. Instead, they operate through local taxi companies, which puts them in a weak bargaining position.

Most people working in this field can point to instances of needlessly expensive transport arrangements. My own recent favourite involved an LA insisting on a cab collecting Child A five miles away from the driver’s starting point as first pick-up, only to go back to collect Children B and C near the starting point before driving back again to the school via a route which took them within a mile of A’s house.

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LAs target transport for Post 16s to cut costs

It is probably not surprising that LAs, desperate to save money, see the transport budget as a promising target for savings. This is especially true in relation to young people over 16 for whom transport is discretionary.

We are seeing a spate of amended LA transport policies which, in effect, tell young people, if they are inconsiderate enough to be disabled but not have parents who can drop everything to take (and collect) them to college, that they cannot continue in education.

If your LA’s policy looks like this, it is likely to breach the Equality Act 2010 and various other legal provisions. The LA has a duty to ensure that young people with EHCPs receive the support set out in them, and it may well be worth looking into a threat of judicial review. SOS!SEN has sent a number of pre-action letters challenging such policies. And while this is purely anecdotal evidence, it is interesting that in almost every case, the LA concerned has found a reason to change its decision to award transport for the individual in question, while still refusing to concede that there is any issue with their policy.

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image includes graphics from the article

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Long journeys a result of “a serious failure of school planning”

One thing the article does get right is recognising the increasingly long journeys some children with SEND are having to make, and the harm this is causing. On our helpline at SOS!SEN, we hear regularly about children with complex difficulties being transported for well over the recommended maximum one-way travel time of 75 minutes. This leaves them so tired and stressed, their education is badly affected.

Further serious consequences arise from these scenarios. Particularly worrying is the rising number of children, for whom it’s fully acknowledged specialist education is needed, but who are placed in mainstream schools because no specialist places are available.

The reality is, however, if children have to take long journeys, this is primarily due to a serious failure of school planning at both national and local levels, leading to inadequate availability of specialist provision. The answer to this shortfall cannot be simply to place more children with SEND in mainstream schools. For this to be a viable option, the government would need to make heavy investments in mainstream schools and teacher training first, to ensure they can meet the needs of these children.

One remedy government representatives seem keen to promote is the provision of more specialist resourced units in mainstream schools. This seems unlikely to help in relation to transport costs. For example, if the designated resourced provision for children with hearing problems is in the west of the authority’s area, while the provision for children with dyslexia is in the east, this may lead to more long journeys when the dyslexic child living in the west crosses over every day with the hearing-impaired child living in the east.

We need long-term investment in specialist education

Of course, we are all aware of the massive budgetary pressures the government is dealing with. The remedy cannot be to deprive our children of an education that meets their needs or the ability to enforce it via EHCPs and the tribunal.

Good, long-term investment in education that meets all children’s needs will bring significant savings, and not just in terms of transport costs. This kind of investment will enable children and young people with SEND to achieve the maximum degree of independence possible, resulting in major savings in costs of care, benefits, and the like. This must be fed into all discussions about potential reform.

Eleanor Wright, legal officer, SOS!SEN

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About
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Eleanor Wright

Legal Officer at SOS!SEN

Formerly CEO, Eleanor is now SOSSEN’s Legal Officer, with more than 25 years’ education law experience as a SEN solicitor. She joined SOS!SEN in 2015 as Coordinator, coincidentally arriving just after the SEND reforms of 2014 that saw the passing of key legislation in England for children and young people with SEND and the creation of the SEND Code of Practice 2015.

She provides the legal oversight that underpins the support and services we provide, updating staff and volunteers on any changes in legislation and guidance that impacts the support we give. Eleanor delivers monthly training to both new and existing volunteers and is responsible for monitoring and oversight of the work they undertake.

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