Back to school

Already the summer holidays have receded into history and children (and teachers) have the first month of the new academic year under their belt.

Barristers too, do not work to calendar years and Tuesday 1st October sees the start of Michaelmas Term, the hardest term of the year, which runs all the way to 20th December and the darkest time of year.

Since I last wrote on the vexed subject of school transport and incorporation of its provision into EHC Plans there have been a number of interesting decisions in the High Court, Court of Appeal and the Upper Tribunal which touch upon transport provision. I shall look at one of the Upper Tribunal decisions below.

In the case of Birmingham City Council v KF [2018] UKUT 261 (AAC) the facts were as follows:

8. Karen was born on 5th May 2000. She has difficulties with dyslexia, numeracy, information and auditory processing, anxiety and PTSD, and self-esteem. The Firsttier Tribunal set out details of her educational history but it is not necessary to repeat all of that here. In June 2016, after completing her GCSE exams, Karen started to attend “the College”, which is some distance from her home. She did not want to attend a more local college where she might come across those who had bullied her at a previous school.

9. On 22nd January 2017 the authority issued an Education, Health and Care Plan in respect of Karen. She objected to much of the content and on 24th March 2017 appealed to the First-tier Tribunal. By the time the First-tier Tribunal considered the matter on 19th October 2017 most of the contested issues had been agreed apart from the question of assistance with transport. The First-tier Tribunal described a multistage journey between home and college that could take between 60 and 90 minutes each way. On most days, due to her anxiety, Karen found this too difficult and her mother would drive her some or all of the way. The difficulties resulted in a low level of attendance and promptness.

The First Tier Tribunal found as follows:

10. The First-tier Tribunal started that it was “mindful of the case law which establishes that transport is not a special educational need and thus the Tribunal has no jurisdiction to consider transport”. However, the tribunal then stated that it was relying on my decision in AA v London Borough of Haringey [2017] UKUT 241 (AAC) (the “Haringey” decision or case) and went on to consider Karen’s transport difficulties.

11. In section B of the plan the tribunal added (with the agreement of the authority):
“[Karen] is not yet an independent traveller due to anxiety and specific learning difficulties and therefore …is unable to access public transport without assistance”.

12. The tribunal noted that it was unable to quantify the type of transport assistance as no risk assessment had been carried out and neither Karen nor her mother was able to identify the exact type of assistance that would be effective. However, the problem was impacting on college attendance. It inserted the following in Section F:
“Transport to be provided for [Karen] to secure her attendance at college until the end of the Autumn term to allow an assessment of her transport needs to be concluded. Thereafter, appropriate support to assist [Karen] to become an independent traveller and reduce her anxiety so that she can access public transport without assistance”.

On appeal to the Upper Tribunal:

18. Mr Greatorex wants me to say that the Haringey case was wrongly decided. He
argued that the key issue is whether transport to and from a school (or other relevant
establishment) can ever constitute special educational provision which can be ordered
in section F of an EHC plan. As he put it in his written skeleton argument of 29th June
2018:

“the clear and consistent answer given by case law from 1998 to 2016 was that it could not but then in [the Haringey case] the UT held that this was a question of fact to be decided in each case …”.

He suggested that there were two particular problems with my decision “which have led to uncertainty and confusion”, although at the hearing before me he accepted that there is no statutory provision to support his “clear and consistent answer”. The two problems are (a) that I had not given an example or indication of facts which could lawfully lead the First-tier Tribunal to conclude that school transport is special educational provision and (b) that I had not indicated the scope or nature of the factual inquiry required or the legal test to apply.

19. His second problem is quite easily dealt with. School transport is capable of being special educational provision if it educates or trains (section 21 of the 2014 Act, and see also ESCC v JC [2018] UKUT 81 (AAC)). It is for an appellant to make the case that the transport fulfils some educational or training function or for the First-tier Tribunal to consider this pursuant to its inquisitorial or quasi-inquisitorial function. The answer will depend on the facts of the particular case. I acknowledge that Mr Greatorex has submitted a list of authorities which have held or appear to have held that transport cannot possibly be special educational provision but this is a statutory regime, the 2014 Act is new legislation and, although it could easily have done so, it did not exclude that possibility.

The appeal was dismissed, as ultimately it had become academic, but the Upper Tribunal decision in a sense fudges the issue: it is plainly right in that potentially anything that could educate or train a child can be considered to be special educational provision, but the basis upon which transport provision can satisfy those criteria, which is the really interesting point, remains opaque.

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