Keywords: EHC Plans; School Transport; Transition
H was a 21-year old woman who lived with her parents. She had an Education, Health and Care Plan which specified attendance at an educational establishment some distance from her home.

The First Tier tribunal had found that the local authority was required to provide her with transport by finding that H’s needs were exceptional and that, in her case, the provision of transport to access the provision was either a special educational need or special educational provision or both.

The local authority challenged that finding on the footing that transport or journeys were special educational needs or provision.

Held: The upper tribunal held that the FtT had made an error of law in finding transport to be either a special educational need (on the basis of the wording of the statute which specifies that these must ‘arise from a learning difficulty’) or special educational provision (since extensive previous case law had established that a journey cannot be part of educational provision).

Of broader interest, however, is that the upper tribunal also considered whether a Local Authority has any duty under section 508F of the Education Act 1996 (as amended by Children & Families Act 2014) 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 situation is different depending on the age of the child or young person involved. The duty of the Local Authority under section 508F is different from the more extensive duty owed to an eligible child (of compulsory school age) under Schedule 35 of the Education Act 1996. s.508F, however, requires local authorities to provide education related transport for older children and young people only “as they consider necessary” and requires them to have regard “(among other things) to the age of the adult and the nature of the route, or alternative routes, which the adult could reasonably be expected to take”.

The parents attempted to rely on a number of paragraphs from the SEN Code of Practice in arguing that the fact that H’s transport needs were exceptional meant that they should be included in the EHC plan and met by the local authority, particularly 9.215 which states that “Transport should be recorded in the EHC Plan only in exceptional cases where the child has particular transport needs” and 9.217 which states that “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.’

The judgment described the SEN Code of Practice as “creating inaccuracy and confusion”  and pointed out that the fact that the Code of Practice mis-states the law, as established by s.508F and by the case law which defines what is and is not special educational provision within the meaning of the Education Act 1996, does not change the law – which should act as a warning of the dangers of relying on statutory guidance alone, without checking the underlying law!

It was held that the local authority had wide discretion to decide whether it was necessary to provide transport on the basis of s.508F and that the FtT erred in law in bypassing s508 by relying on the Code of Practice and in taking jurisdiction over the issue of transport, where none existed.

Analysis: It is clear from the effect of the combination of findings that (a) transport is not an SEN nor special educational provision and (b) that the requirements of the duty under s.508F Education Act 1996 as amended by the Children and Families Act 2014 do not require the provision of transport in any robust way. The provision requires only a discretionary decision as to necessity.

In effect, given the weakness of s508, Parliament has created a rather startling gap in provision around transport for the older age group with ECHPs. In these hard pressed times, many councils have developed tightly focussed and heavily restricted transport policies for older young people. As a result, it would appear to be lawful, currently, for a council to specify appropriate SEN provision some distance from the young person’s home, whilst failing to provide transport and leaving the young person potentially completely unable to actually access the provision. Clearly this issue needs to be addressed by Parliament. In the meantime, it is clear that it cannot be addressed through the SEN tribunal system.

In the interim, three options are open to parents and young people.

Option 1 is to reject the placement itself on the grounds that a placement cannot be a suitable option if the LA will not provide transport and there is no actual access to a suitable means of accessing the placement. That argument does rest on a solid foundation (MM & DM v London Borough of Harrow [2010] UKUT 395 (AAC)) but is of little practical use in situations where the placement is, in fact, the preferred choice or even the only suitable option in and of itself.

In the latter case, the danger is (with this age group) that, should the parents or young person take the position that the only realistic educational placement is not suitable (for whatever grounds including lack of transport) there is a risk that the Local Authority will contend under  s.36(10) CFA that the young person no longer needs an EHC plan on the grounds that there is no suitable education or training which they can undertake and therefore their education is complete and the plan should be terminated.

Option 2 would be to seek judicial review of the council’s use of its discretion under s.508F Education on the grounds of irrationality or other public law grounds. However, the s.508F duty which applies to this age group is a general duty and is very weak in terms of specific duties owed to an individual. It doesn’t say “if they consider it necessary in the particular case” , it says “as they consider necessary” “to facilitate the attendance of adults receiving education” … (categories which include ALL young people of this age and not even specifically relating to SEN). Consequently a judicial review on this point of education law would be an uncertain undertaking.

Option 3 is much stronger however. We can only speculate as to the detailed facts underlying this case (as the full judgement does not contain any details of H’s needs). However, under the Care Act, it seems very likely that a young person in this position would meet at least two eligibility criteria: of being “unable” (remembering the broad definition of “unable”) to achieve the outcome of “accessing and engaging in work, training, education or volunteering” and “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services”. These would be having a consequential significant impact on the young person’s wellbeing, at the very least in terms of “participation in work, education, training or recreation” (s.1 Wellbeing definition). Therefore, requesting an assessment under s.9 Care Act and seeking the provision of transport under s.18 Care Act to meet these eligible needs would be a much firmer way forward.

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