Transport and EHC plans

The transport needs of a young person or adult with SEN are not commonly dealt with in an EHC plan. This is because transport is traditionally seen as being dealt with under a different set of statutory provisions to those contained within the 2014 Act.

Conceptually this is hard to justify, when one considers that speech and language therapy, used to access education is commonly seen as educational provision: if conversely, you can’t even get to the institution where your education is being provided,  it could be viewed that this is just another type of problem with access that transport provision could remedy.

Against this backdrop I now turn to consider what  light might be thrown on the issue by looking at the case of Staffordshire County Council v JM [2016] UKUT 0246 (AAC) which is perhaps the most significant case in recent years about how transport provision dovetails with EHC plan provision. The issues as stated by Judge Lane were as follows:

The issues before the Upper Tribunal are (i) whether the cost of transport to and from the place of education specified in an Education, Health and Care Plan (‘EHCP’) is either a special educational need or special educational provision for the purposes of the Children and Families Act 2014; (ii) whether a Local Authority has any duty under section 508F of the Education Act 1996 to pay transportation costs to facilitate attendance at further education of an adult learner over the age of 19 but under 25 years of age who has an EHC Plan; and (iii) whether the F-tT had any jurisdiction to order a Local Authority to pay for transportation costs which it had refused, as a matter of its discretion, to pay.

The facts of the case were recorded as follows:

H is now 21 years old and lives with her parents. The Local Authority maintains an EHC Plan for her, and only one institution is named in the EHC Plan. That institution is rather distant from H’s home, and the transportation costs to and from home are at the heart of this appeal.

The Local Authority took the view that, because of H’s age, they did not have an absolute duty to make and pay for H’s travel to and from school. They only had to do so if they considered it to be necessary (section 508F, Education Act 1996 as amended by the Children and Families Act 2014). The Local Authority asked the parents repeatedly to provide the necessary information so that they could come to a conclusion on this issue, but Mr M was not cooperative. He considered their requests unnecessary and intrusive. In his view, the Local Authority either had the information already or could find it out themselves.

 7 Over time, quite a lot of the information required had slowly come to light. It was also clear from a letter from the Local Authority to Mr M that he produced at the hearing that the Local Authority required very little further information. Mr M was adamant that he would not provide this information without my personal assurance that no more questions would be asked of him. That, of course, is not an assurance I could give.

The judge then turned to consider the first issue, namely whether transport provision was or could be something that should be recorded in an EHC plan. The first point to note was that there was no scope for tension between the 1996 Act and the 2014 Act:

The Education Act 1996 as amended by the CFA 2014 contains the bulk of law applicable to educational matters relating to those with special educational needs and disabilities. In order to retain consistency between the system for EHC Plans in Part 3 of the CFA 2014 and the very much more detailed law relating to education in the Education Act 1996, section 83(7) of the CFA 2014 requires the Education Act 1996 and Part 3 of the Children and Families Act 2014 to be read as if Part 3 were contained in the Education Act 1996.

Although section 83(7) is obscurely drafted, in my view it is intended to coordinate the two systems, at least in their core concepts. That is certainly so regarding the terms ‘special educational needs’ and ‘special educational provision’. Those terms and their meanings were largely lifted from the Education Act 1996 into the CFA 2014 subject, obviously, to appropriate changes to reflect (for example) the new age-range of persons for whom education is to be provided.

After noting the wording of some of the statutory provisions he found:

It is clear from the wording of these provisions that a special educational need must arise from a learning difficulty. It is also clear that the learning difficulty must call for special educational provision.

On this language, it cannot be sensibly argued that a need for home to school transport arises from a ‘learning difficulty’ in and of itself. Nor, on the wording, can home to school transport be classed as a form of special educational provision. As recognised in case law examining the structure and language of the Education Act 1996, special educational provision is distinct from the transport needed to access that provision. So, for example, in R v London Borough of Havering ex parte K [1998] ELR 402 at 404-405, a case in which a parent wished the Local Authority to take on responsibility for transporting her child at the beginning and end of each to the school at which he was a boarder, Sedley J said:

‘The duty of the local authority to make such provision can be found (in principle, at any rate) in two places in the Education Act 1996. One is at … s 324(5)(a)(ii)3 – transport being clearly one form of non-educational provision. The other, however, is the more explicit provision in section 509. Section 509(1) reads:

‘A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary …for the purpose of facilitating the attendance for receiving education –

(a) at schools

 Although the Havering case involved different section 509, the principle is the same as in the instant case. That principle was expressly approved by a Three Judge Panel of the Upper Tribunal in Dudley MBC v JS [2011] UKUT 67 [32]. Dudley MBC v Shurvinton was itself upheld in the Court of Appeal [2012] EWCA Civ 346). In MM & DM v London Borough of Harrow [2010] UKUT 395 (AAC), one of the arguments raised by the parents was whether the school named by the Tribunal was unsuitable for their daughter because the travel arrangements made by the Local Authority were not, in the parents’ view, suitable. In dismissing this ground, Upper Tribunal Judge Jacobs said at [27]:

‘Transport is not an educational need. However, it has to be taken into account. A placement cannot be appropriate if the authority cannot provide suitable transport to the school.’

 And at [29]:

 ‘However, the journey is not part of the children’s education. It does not have to provide an opportunity to meet social or educational needs. It is merely a means of getting the children from their homes to their school.’

This is not to say to say that issues about transportation are irrelevant. It depends on the context. In cases in which the choice of school is in issue in respect of a child , the cost of transportation is a matter which may be taken into account in deciding whether the parental choice or Local Authority choice of school is to prevail. In this appeal, even if H was still a child for the purposes of the Education Act 1996 (which she is not), the issue was not the choice of school.

Section 15ZA of the Education Act 1996 as amended reinforces the analysis in the case law. The duty in described in terms of ‘education’ and ‘training’. Other matters, such as the location and times at which the education or training is provided, go to the suitability of the education to meet the individual’s needs, and not to the meaning of education or training themselves.

My conclusion is that there is nothing in the wording of the sections cited above which suggests that Parliament intended to change our understanding of these core terms. It follows that I accept the Local Authority’s submission that the FtT erred in law by finding that transportation to and from school was either a special educational needs or special educational provision to meet such a need.

The second issue was whether a local authority has any duty under section 508F of the Education Act 1996 to pay transportation costs which would enable a young person over the age of 19 with an EHC Plan to access the education specified in the plan? The judge summarised the duty as follows:

36 The Local Authority has a duty to make arrangements for H if they consider that to be necessary having regard to all of the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangements and the transportation must be free of charge.

(emphasis added)

I emphasise the formulation of the duty expressed in this case, because it illustrates that in relation to specific individuals post 19 with an EHC plan, the local authority must consider all the relevant circumstances and ask themselves if it is necessary to make arrangements, and if it is, they must pay for those arrangements, so that they are free of charge.

This is quite important, as the local authority must beware of blanket policies or unduly fettering themselves when it comes to considering and formulating their policy.

At the hearing, Mr Goudie distinguished the duty of the Local Authority under section 508F from the more extensive duty owed to an eligible child under Schedule 35 of the Education Act 1996. He was, in my view, right to do so. A Local Authority has a duty to secure home to school transportation for certain ‘eligible’ children (i.e. those who are not over compulsory school age, section 579) under Schedule 35 of the Education Act 1996. The content of the duty varies from paragraph to paragraph of the Schedule, but as a very broad generalisation, as regards children with special educational needs, disabilities and mobility problems the Local Authority must make available to them free transportation if (i) they cannot reasonably be expected to walk to the school at which they are registered and (ii) there are no suitable arrangements to register them at a school nearer to their home. There is no correlative provision for those in the post-19 year old group.

However the parents had some arguments under the Code of Practice. But these were dismissed in a section where the judge plainly thought the Code of Practice as drafted was erroneous and unlawful:

In connection with the duty under section 508F, I was also referred to the Code of Practice issued by the Secretary of State under the CFA 2014. The parents sought to rely on the paragraphs relating to transport in the Code to support their case that the Local Authority was obliged to provide transport for H because her circumstances were exceptional.

The relevant paragraphs of the Code say this:

‘9.214 The parents’ or young person’s preferred school or college might be further away from their home than the nearest school or college that can meet the child or young person’s SEN. In such a case, the local authority can name the nearer school or college if it considers it to be appropriate for meeting the child or young person’s SEN. If the parents prefer the school or college that is further away, the local authority may agree to this but is able to ask the parents to provide some or all of the transport funding.

9.215 Transport should be recorded in the EHC Plan only in exceptional cases where the child has particular transport needs. Local authorities must have clear general arrangements and policies relating to transport for children and young people with SEN or disabilities that must be made available to parents and young people and these should be included in the Local Offer. Such policies must set out the transport arrangements which are over and above those required by section 508B of the Education Act 1996.

9.217 Transport costs may be provided as part of a Personal Budget where one is agreed and included in the EHC Plan as part of the special educational provision.

He stated:

There are problems with these paragraphs, the first two of which reproduce paragraphs in the old SEN Code of Practice. 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. Paragraph 9.214, for example, does not deal with situations under Schedule 35 in which the Local Authority cannot ask parents to pay for home to school transportation for an eligible child to their school of the parents’ choice even though it is further away than one identified by the Local Authority. Paragraph 9.215, on the other hand, may be wrongly interpreted (as it was in this appeal) to lay down a free-standing rule allowing transport needs to be included in an EHC Plan if exceptional circumstances could be shown to exist, despite section 508F. 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.

He went on to conclude on this point, the F-tT was in error of law by deciding that it could bypass section 508 by relying on paragraph 9.215 of the Code. It also erred in law in taking jurisdiction over transport where none existed.

The case is a useful exposition of the limited nature of the duties which apply, but also formulates the test which must be applied by the local authority to post 19 EHC plan possessors, so that they act in good faith in acting to consider and discharge the duty.

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