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DfE guidance on post-16 transport to education and training

The Department for Education (DfE) issued new post-16 transport guidance on 26 October for Local Authorities (LA). The guidance is, we suspect, as a response to problems that parents have voiced in recent months about problems with school/college transport for young people. We previously wrote about cuts to school transport here. It seems that LAs are increasingly asking parents to contribute towards funding transport. Parents often ask us whether LAs are permitted to do this and, if so, what steps LAs must take before asking for a contribution.

Aim of the guidance

Note that although this is guidance only (i.e. not the law), LAs must have regard to it when carrying out their duties and developing their transport policy for young people of sixth form age and those up to 25 years who have an Education Health and Care Plan (EHCP).

The aim of guidance, it says, is to reiterate its mission to improve social mobility for young people including providing education and training opportunities for them to gain qualifications and skills they need to reach their potential. The guidance states that LA transport policies play an important role in supporting young people’s participation in education and training. The focus of the guidance is on LAs to publish their transport policies so that young people and their parents can take account of this when choosing between different options. Note, however, that the situation is slightly different for young people with an EHCP as for them; their placement is named on their Plan. Before naming a placement on an EHCP there should always be discussion about the options with parents and the young person and the cost of transport should be considered alongside this. This is of course assuming that there is a choice of placement. In reality, there are often very options available for those looking for very specialist placements in particular locations.

Duty to continue in education from 16-18 years

The duty to participate full time in education or training and/or training through an apprenticeship (or employment provided this includes some training) is set out in Section 2 Education and Skills Act 2008. It is important to remember that the requirement falls on the young person and not the parent/carer. Enforcement does not form part of the current law and therefore the young person will not receive a sanction for non-participation.

The LA transport duties apply to all LAs in England in respect of arrangements for young people aged 16-18 years and those continuing learners up to 19 years. Under Section 509(AA) Education Act 1996 the LA has a duty to set its own transport policy, details of transport arrangements and financial assistance in respect of reasonable travelling expenses that the LA considers it necessary to make to ensure access to education or training for learners of sixth form age.

Furthermore Section 509(AB) (1) Education Act 1996 requires LAs to set out how their transport statement facilitates the attendance of young people with SEND. The guidance states that the transport needs of young people with SEND should be reassessed when a young person moves from compulsory schooling to post-16 education. Arrangements cannot be limited to those young people who had been assessed as having particular transport needs prior to the age of 16.  Local authorities should publish their transport policies on their “local offer” as required under the Children and Families Act 2014.

The point to note here is that whilst the duty to attend education or training falls on the young person, it is parents who will be asked to contribute towards any transport costs. This does not seem to sit well with giving young persons the autonomy to choose their own placement or to take responsibility for attending education/training.

What arrangements must LAs make?

Local authorities fund their transport responsibilities through the grants they receive from national government, which are not ring-fenced, and through generated income, such as Council Tax.

When considering the transport arrangements or financial assistance that is required, the LA must have regard to:

  • The needs of those who would not be able to access education or training if no arrangements were made. When considering this, the needs of young people with special educational needs and disabilities (SEND) should be specifically considered and arrangements put in place which must be documented in the transport policy.
  • The LA must ensure that young people have reasonable opportunity to choose between different establishments at which education or training is provided. As discussed above, this is questionable for young people with SEND as often there is little choice in provision that is suitable or available.  Furthermore, if there is consideration of the cost of transport, it is likely that this will narrow the choice even further.
  • The distance from the learner’s home to placements.
  • The journey time to access different placements. Young people should be able to reach their education or training without incurrent stress or strain or difficulty that would prevent them from benefiting from the education provided. This is particularly applicable to young people with SEND. The guidance states that best practice suggests that a child of secondary school age may reasonably be expected to travel up to 75 minutes each way to access learning and that LAs should apply similar expectations to young people of sixth form age. However, note that the situation is likely to be different for young people with SEND, many of whom have sensory processing difficulties and other medical conditions that would make a 75 minute journey too long. Each case must be considered individually. There should be no blanket policies.
  • Local authorities can consider the cost of transport to the placement and may ask learners and their parents for a contribution to transport costs but when exercising their discretion they should ensure that any contribution is affordable and should take into account the likely duration of learning and ensure that transport policies do not adversely impact particular groups, eg young people with SEND are more likely to stay in education or training longer than their peers and any contribution sought from these families would need to allow for the fact that they may have to contribute for longer.

From some of our cases it is unclear whether LAs take this into consideration and whether contributions from parents/carers of young people with SEND is adjusted accordingly.

Transport Arrangements and the EHCP

Young people with an EHCP already have a placement named on their Plan at Section I. The guidance makes it clear that there is no entitlement to transport to and from this named provider and that transport should only be named in an EHCP in exceptional circumstances. See our article regarding recent case law in this respect – Staffordshire CC v JM (2006).

It should be noted that a learner with SEND may take longer to complete their learning or training and it would, therefore, be good practice for the LA to extend the arrangements for the provision of transport until the learner has completed their programme, even if that means that this is after the age of 19. The guidance also reminds LAs of their adult transport duties under Sections 508(F) and 308(G) of the Education Act 1996 as inserted by Section 57 of the Apprenticeships, Skills, Children and Learning Act 2009, with regard to the responsibilities for the 19-25 year age group.

The LA also has a duty under Section 508(G) to prepare a transport policy statement setting out any transport or other arrangements it proposes to make for that academic year in respect of adults aged under 25 years with EHCPs.


Where parents do not agree with transport arrangements made by their LA, they should first complain and appeal to their LA. If this is not successful, they should consider contacting the Local Government Ombudsman or complain to the Secretary of State. The Secretary of State may direct an LA to make transport arrangements or provide reasonable travelling expenses where particular transport arrangements or financial assistance have not been included or are not covered by the LA’s transport policy statement.

You can read the full transport guidance here.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

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Expanding the powers of the SEND First-tier Tribunal

On 26 October 2017 the Minister of State for Children and Families, Robert Goodwill, announced the expansion of powers of the SEND First-tier Tribunal (FTT). The changes will enable judges to make non-binding recommendations on the health and social care aspects of Education, Health and Care Plans (EHCP) alongside appeals on the education aspects of the Plan. The national trial is to start in March 2018.

When the Children and Families Act 2014 came in force in September 2014, there was disappointment that there were not stronger remedies for parents seeking redress for health and social care alongside the educational aspects of their child’s EHCP. Currently, the FTT can only make orders with respect to Section B (description of special educational needs), Section F (educational provision) and Section I (name of placement and/or type of placement). There are limited exceptions developed by case law – see LB of Hillingdon v SS and Others (SEN) (2017) & P v Worcestershire County Council (2017)). The FTT cannot currently make any orders in respect of health of social care provision set out in the Plan.

To start the process of looking into how this could be remedied, the SEND Tribunal ran a limited pilot appeal scheme from June 2015 to August 2016 involving only 17 out of 152 Local Authorities that had elected to take part. The pilot allowed judges to consider concerns about health and social care alongside appeals involving education, enabling judges to make non-binding recommendations for health and social care.  The results of the pilot were received well. The outcome can be read from page 181 in the Department for Education’s ‘Review of Arrangements for Disagreement – (SEND) Research report, March 2017’. Understandably, however, because only 17 Local Authorities took part, the findings were limited due to the very small number of appeals heard. More evidence needed to be gathered before deciding whether it should be made a permanent part of the SEND FTT’s remit. The new trial will start in March 2018 and will run for two years following which a decision will be taken on its future use. Regulations will set out new duties on all Local Authorities and health commissioners, similar to the duties under the previous pilot. Under the previous pilot the Tribunal could recommend that the EHCP should be amended or include a description of the child/young person’s social care and/or health needs and the level of provision required.

In preparation for the launch in March 2018, the Department for Education (DfE) has written to all Local Authorities and key health commissioners and is organising training to clarify duties and provide further detail on what will be expected to prepare for the trial and during the trial itself.

The DfE has stated that the aim of the national trial is to enable the Tribunal to take a more holistic view of the child or young person’s needs, encourage joint working, and bring positive benefits to families.

Where the pilot recommendations could be particularly helpful

We think that a Tribunal Judge’s recommendations could be helpful in the following types of situations:

  • Where there are poor quality professional reports that do not fully quantify and specify the level of support required to meet educational needs
  • Where there are late or non-existent reports from professionals (e.g. speech and language therapist, occupational therapist, physiotherapist, Child and Adolescent Mental Health Services (CAMHS), social care services)
  • Disagreement about the child/young person’s need for provision from CAMHS and adult mental health
  • Failure of social care to carry out social care assessments
  • Funding disagreement about residential placements – particularly for young adults who require bi-partite/tri-partite funding.

What do we think?

The analysis of the first trial shows that the pilot encouraged more joint working across all three areas. It can also act as a lever to encourage reaching resolution before the hearing.

Importantly, the use of telephone case management can be helpful in ensuring both parties have thought of all areas that need to be considered and collated sufficient evidence to enable decisions to be made. We often find that parties and professionals from all three disciplines do not engage with the appeal until the hearing itself. It is hoped that this might be avoided with good use of active case management.

Whilst the pilot recommendations are non-binding, the DfE has said (at page 28 of the ‘Review of Arrangements for Disagreement – (SEND) Research report, March 2017) that:

‘While the First-tier Tribunal’s recommendations are non-binding for health and social care partners, we would generally expect that recommendations are followed. If recommendations are not followed, families would be able to complain to an Ombudsman or in exceptional circumstances, seek to have the decision judicially reviewed.’

It remains to be seen how many parents have to follow through Tribunal recommendations in this way. Parents should not have to do this after having just gone through a Tribunal appeal.

It is hoped that Local Authorities and health commissioners will learn from working more closely together and that the DfE will follow progress carefully so that guidance can be given swiftly to set all bodies on the right track. Swift guidance and action has been lacking somewhat with the changes brought about with the introduction of EHCPs. Many parents voice concerns about the lack of accountability for Local Authorities that fail to adhere to the SEND Code of Practice and DfE guidance.

In our view the pilot recommendations are a step in the right direction. The Children and Families Act did not go as far as many parents would have hoped but this is a way of bringing it back in line, albeit in a ‘diluted’ format. It will be interesting to see how far the recommendations will be followed and what is learnt when the scheme is reviewed three years from now.  Hopefully, we can take forward what is learnt to improve outcomes for children and young people with SEND but, for some, it will be too late.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

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Boyes Turner Annual SEN conference 2017

“The second conference I have attended and they get better and better. Really useful.”

“Really good – please make it a regular thing.”

“Thank you for another excellent seminar.”

Boyes Turner SEN team hosted their annual conference on 28 September 2017

Laxmi Patel, Head of Education at Boyes Turner, introduced the seminar.

Aileen McColgan, Barrister at Matrix Chambers, gave us an informative presentation on Education, Health and Social Care in post-19 provision.

Janata Ali, Special Educational Needs (SEN) specialist with 13 years of experience in education law who joined the Boyes Turner education team this year, spoke about the top five issues encountered in Tribunal appeals from a claimant solicitor’s viewpoint. She also spoke about developments in SEN including an update on the Department for Education statistics for children with SEN, and the Ministry of Justice statistics for SEN appeals and their outcomes. Finally she focussed on updates in relation to Tribunal appeals and processes both now and to come.

Below are a few questions and answers that were discussed:

Q: Our understanding is that transport can be included in an Education, Health and Care Plan (EHCP) in exceptional circumstances – is this right, and can this be included in Section F?

A: There is no authority that explicitly states as a matter of law that home/school transport can never be specified in an EHCP. Transport can be included in an EHCP but only in exceptional cases where the child has particular transport needs.

Circumstances that might be considered exceptional could include:

  • The need for a 1:1 with medical expertise to travel with the child.
  • The fact that the child needs accompanying throughout a journey.
  • A driver, requiring training in order to be able to use an epi-pen.

It will very much depend on the facts of the case.

The benefit of getting transport into Section F of the EHCP is that it would be funded as part of the educational provision by the Local Authority (LA) rather than a contribution being requested from parents as is often the case for young people over 16 years.

The recent case of Staffordshire County Council v JM [2016] UKUT 0246 (AAC) considered this question. Laxmi reviewed this case in a recent article.

Q: Is it true that there is going to be a further pilot scheme for appeals, where the Tribunal will be able to consider social and health recommendations as well?

A: Yes, the first pilot scheme that ran from 1 April 2015 to 31 August 2016 is about to be extended to a national trial to start in early 2018.  It is expected that this will run for two years and will incorporate all LAs. This pilot will allow the Tribunal the power to make recommendations in relation to the health and social care needs and provision of children and young people in appeals against a local authority concerning the EHCP. This will apply to all rights of appeal, except a refusal to assess.

However, it should be noted that these recommendations are unenforceable against the LA, Health or Social Services. It was agreed that it was disappointing that there continues to be no right of appeal against the health and social care aspects of the EHCP, although the ability of the Tribunal to make these recommendations may be a small step in the right direction.

Q: Is it true that the Tribunal is considering procedural changes in relation to bundles? 

A: The Tribunal is proposing to update bundle guidance and capping the number of pages of evidence that each party can automatically submit in an appeal. The details of this are still to be confirmed.

Q: What if there is some additional evidence that needs to be submitted and is relevant to the case, but would exceed the page number cap?

A: It is likely that the tribunal would expect the party to apply for this evidence to be accepted. However, the party submitting the evidence would have to explain clearly why it is necessary.  It is thought that by capping the bundle size it will make parties consider more carefully the quality and quantity of the evidence that they are submitting and avoid repetition and inclusion of information that is not valuable to the appeal. However, we are still waiting to have details of the Tribunal’s proposals confirmed.

Q: What is the situation when an appeal for a particular school is successful but where the LA challenges that decision via an appeal to the Upper Tribunal? Can the child or young person start the placement agreed by the First-tier Tribunal or do they have to wait until the decision of the Upper Tribunal?

A: We agree that this is a difficult issue. Theoretically, if there is a final EHCP naming a school (as ordered by the First-tier Tribunal), then that school must admit the child. However, there is a risk that the placement will come to an end if the LA’s challenge at Upper Tribunal is successful. Parents must consider this risk when deciding whether or not their child should start at the school. Often the child or young person will remain at home or at their old school until the matter is resolved.

Q: Can certain psychological and mental health interventions be considered provision?

A: Yes, provision is not restricted to acquisition of knowledge. If it helps to train and educate a child or young person or allow them to access the curriculum then it can be provision within Section F. A couple of examples are:

  • Mindfulness training which requires principles and practice to acquire these skills.
  • Cognitive behavioural therapy that trains the child or young person on how to deal with anxiety.

In these examples the child or young person is receiving training and is learning strategies that will hopefully help them in the classroom and the community.

However, hypnosis, which requires no learning or training by the child or young person, is unlikely to be educational provision.

If you would like to talk about your child’s special educational needs then please contact us at [email protected] or call 0800 884 0723 – our specialist SEN solicitors are here to help.

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