It is well established that home to school transport cannot be considered a special educational need or special educational provision and cannot, therefore, be included in an EHCP. The recent case of Staffordshire County Council v JM  UKUT 0246 (AAC) appeared to have reaffirmed this.
The issue was challenged in a recent Upper Tribunal case, AA v London Borough of Haringey  UKUT 0241 (AAC). The Upper Tribunal found that there is no authority that explicitly states as a matter of law that home/school transport can never be specified in an EHCP. This affirms the SEND Code of Practice which states at paragraph 9.215 that transport can be set out in exceptional cases where the child has particular transport needs.
‘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 require3d by section 508B of the Education Act 1996.’ [SEND Code of Practice 2015, para 9.215]
The case concerned ‘Adam’ (not his actual name) who was eight years old at the time of the hearing. He was diagnosed with autistic spectrum disorder and also had language, emotional, behavioural and significant sensory difficulties. His EHCP was amended to name an independent special school over which there was no disagreement.
Adam was unable to walk to school. There was no disagreement that the Local Authority (LA) was obliged to provide transport in accordance with section 508B of the Education Act 1996. The LA stated that it was doing this by way of an allowance for Adam’s parent to drive him to school. The dispute was over the suitability of the transport and what reference to transport difficulties should be made in the EHCP.
The Tribunal referred to the Upper Tribunal decision in Staffordshire County Council v JM  which stated that school transport is not a special educational need or special educational provision and the Tribunal, therefore, had no jurisdiction to order the LA to provide transport, even where it is argued that this is an exceptional case.
Permission to appeal to the Upper Tribunal was granted on the grounds that the Staffordshire case could have been wrongly applied because it dealt with adults and not children. The young person in that case was 21 years and section 508F Education Act 1996 was considered, which applied only to those over 19 years.
It was held that the First-tier Tribunal had erred in law by stating that it had no jurisdiction to consider transport matters. The decision was set aside to be reheard again by a differently constituted Tribunal panel.
The significance is that if parents are unhappy about transport arrangements that are not (or not permitted to be) in Section F (educational provision) of the EHCP, then they would have to challenge that decision by a judicial review in the High Court. But if transport arrangements are set out in Section F of the EHCP, then parents can challenge the suitability of arrangements through an appeal to the Special Educational Needs and Disability Tribunal.
The case will be reconsidered by the First-tier Tribunal. It is quite possible that the Tribunal will decide that transport arrangements are not exceptional in this case and will not, therefore, be inserted in the Plan. However, what this case makes clear is that there can be no blanket policies; any decisions about transport must go to questions of fact to be decided on a case by case basis.
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.