WHAT DOES THE LAW SAY ABOUT TRANSPORTATION IN EDUCATION?

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INTRODUCTION

In law, a Local Education Authority (“LEA”) has a duty to make appropriate travel arrangements for all “eligible” children of compulsory school age. There are four categories of eligibility which enable a child to receive free transport to school; walking distance; SEN, disability or mobility problems; unsuitable routes and low income families. However, Children attending an Independent School will only be entitled to travel arranged by the LEA if they have a Statement and the Statement names that school.

Travel arrangements include the provision of free transport to school, an escort (if the parents consent), travel expenses for someone else (e.g. an accompanying adult) and allowances for other modes of transport. In 2007 the Government produced the Home to School Travel and Transport Guidance to help Local Authorities carry out the legislation.

WALKING DISTANCE

‘Walking Distance’ is defined as 2 miles for a child under eight years of age and 3 miles for a child aged eight years and over, and is measured by the shortest route a child, accompanied as necessary, can walk with reasonable safety. If there is no such route, the local authority must provide transport no matter what the distance the child lives from the school (i.e. even if the school is within 2 or 3 miles). If a child lives beyond the walking distance and does not have suitable arrangements they should qualify as eligible for free school transport.

CHILDREN WITH STATEMENTS OF SPECIAL EDUCATIONAL NEEDS/DISABILITY

If a child with Special Educational Needs or a disability/ mobility problem lives within the walking distance but cannot reasonably expected to walk, they will qualify for as eligible for free transport. If a school is named on a Statement of Special Education Needs (“Statement”) the LEA must help with transport if requested and cannot refuse to do so on the grounds that there may be other nearer schools which may accommodate the child.

Transport will generally only be recorded in a Statement (in Part 6) if the child has particular transport needs. Children with Statements should receive transport if they fit one of the categories of eligibility.

In practice, parents often strike deals with their LEA over transport when there is a dispute about the costs of cost of placement at different schools. The SEN Code suggests that the authorities may name the parent’s preferred school even where this is not the nearer school if the parents agree to meet all or part of the transport costs.

The Court of Appeal has held that where an LEA specified the parents’ choice of school on condition that the parents paid for the transport as there were other nearer suitable schools, the authority was not obliged to provide free transport to that school.

The SEN code (paragraphs 8.71 and 8.90) says that if a child’s statement names a residential school some distance from the home, the LEA should provide transport or travel assistance to help maintain home-school contact.

LOW INCOME FAMILIES

Children from low-income families may now also qualify for transport assistance.
Children from low income families aged between 8 and 10 years old and living more than 2 miles from their preferred suitable school are eligible for free transport.
Children of secondary school age who attend schools between 2 and 6 miles from their home are also eligible even if the school they attend is not their nearest suitable school. Additionally, secondary school aged children from low income families who attend a school between 2 and 15 miles from home and this is the nearest school preferred by their parents for religious reasons are entitled to free transport.

DISCRETIONARY DUTIES

LEA’s may also provide funding for “reasonable travelling expenses” in whole or in part for any pupils whom they have not made transport arrangements for, but this is discretionary. If a LEA proposes providing education at a school nearer than the one wanted by the parent it must show that its school is suitable for the particular child. Whilst the LEA must take into account parental preference, it must also consider the avoidance of unreasonable public expenditure.

LEA’s can make payments to parents and carers of pupils with SEN to act as an escort or to use the family car to take the pupil to school (usually where this is a special school some distance from home). The LEA’s policy should set out when they will do this and the amounts parents are entitled to.

NON-STRESSFUL TRANSPORT

For children with Statements of SEN, the courts have held that any transport which is provided by the LEA must also be “non-stressful”. Government guidance suggests local authorities establish a standard for the maximum travel time. The guidance suggests that 45 minutes for primary school children and 75 minutes for secondary school children are maximum reasonable journey times, although this may be shorter for children with SEN and/or a disability. Each case will be considered individually and there is theoretically no maximum journey time that the LEA has to comply with.

When making arrangements for transport, LEA’s must also consider employing escorts where necessary. To assist with a journey, either by getting the child in and out as necessary or supervising the child. This is especially if the child has Special Educational Needs which may put him/her at risk if escort provision is not made. It is sometimes possible for LEA’s to ask for parents to act as escorts but, if they are unable to do so, a LEA must themselves provide an escort.

The guidance advises on particular travel issues affecting children with severe learning difficulties. It recommends the local authorities ensure drivers and escorts are known to parents and that the parents are given the operator’s contact numbers. The authority should also ensure the stability of staffing for pupils who dislike change and should encourage schools and transport services to use a home-school liaison diary.

COMPLAINTS vs JUDICIAL REVIEW

The Secretary of State may also direct an LEA to provide transport. The courts have indicated that the most appropriate course for those wishing to complain about a failure to provide transport is by the way of a complaint to the Secretary of State rather than by way of Judicial Review (see Factsheet 9 on “What is a Judicial Review? and Factsheet 10 on “What is a Complaint to the Secretary of State/Local Government Ombudsman?”). The courts have also held that is for an LEA and no-one else, normally, to decide whether transport is really needed for the purpose of promoting the attendance of a particular pupil at school.

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