Local authorities have specific duties to provide free home to school transport to those students with special educational needs who are deemed eligible for transport. The duties differ depending on age and whether those who are deemed eligible are attending what the local authority call a ‘qualifying school’. It is not straightforward and there are a few caveats that are worth discussing, as you will read below.
What is the law on free home to school transport?
The law on school transport is defined within the Education Act 1996, under sections 508A, 508B, and Schedule 35B. The UK government also offers statutory guidance called Home-to-school travel and transport 2014.
- Section 508A states that local authorities must promote the use of sustainable travel and transport for all children and young people of compulsory school age who travel to receive education in the local authority’s area. Essentially, for those who live too far away to walk, which means beyond the statutory walking distance, which is two miles for children under 8 and three miles for those over 8.
- Section 508B and Schedule 35B state that the local authorities are under a duty to provide suitable school transport to ‘eligible children’.
That single word, ‘eligible’ makes a mountain of difference.
Who is ‘eligible’ for free school transport?
A child must be 5-16 years old, attending a qualifying school, and also:
- Live more than 2 miles away from the school if 5-8 years old, or 3 miles away if 8-16, and the distance is determined by walking route, not as the crow flies. If the child has SEN, this may no longer apply. Caveats may apply if the child has special educational needs and/or a disability that prevents them from walking safely to school even if within the statutory walking distance; and other caveats apply if the child has an EHC Plan.
- If they live close enough to walk but cannot, they must provide evidence of mobility issues or the relevant special educational needs that prevents them from walking safely to school, and the local authority will make a decision. If the decision is not in favour of providing transport then each local authority will have a transport appeal process.
- The route to school is simply unsafe.
- The child receives free school meals and the parents are in receipt of maximum Working Tax Credit and:
– The nearest school is more than 2 miles away (for 8-11-year-olds)
– The school is 2-6 miles away and there aren’t at least three other suitable schools closer to the home (by driving route)
– The preferred school is 2-15 miles away and is chosen on grounds of belief or religion
If the child is eligible then he/she must be attending a ‘qualifying school, which means it must be the nearest, suitable qualifying school and a:
- Maintained (publicly funded) school or nursery
- Non-maintained special school
- Pupil referral unit
- City technology college, or
- An Academy
The key point is that the transport must be “non-stressful” to the child so that they arrive at school in a fit state ready to learn.
If a child does not meet the criteria listed above, all hope is not lost. Section 508c of the Education Act 1996 does afford local authorities the power to help children who might not be typically ‘eligible’. In some cases, the local authority may work with the parents and the school to find an alternative solution, with a sharing of costs.
How is ‘suitable transport’ defined?
Firstly, a child should be able to make their journey without a great deal of stress or difficulty, providing a reasonable level of comfort and safety along the way. Some children may require an escort. The typical guidelines suggest that primary school children should not travel more than 45 minutes to school, and secondary school children should not spend more than 75 minutes on their journey.
Transport may be an individual taxi or shared; a minibus or in some cases with older children, the provision of a bus pass. There should usually be a risk assessment to determine the appropriate type of transport based on the child’s individual needs.
The time starts from when the child is picked up by the transport and when they arrive at school. If the transport picks up a number of children en route and the time the child is on the journey is more than 45/75 minutes the journey time is too long.
How do you apply for SEN transport?
If your child has special educational needs but does not have an EHC Plan then parents should approach the local authority with any request for free home to school transport if they think any of the above applies to their child. If the local authority refuses the request then the parent has a right of appeal through the local authority’s own home to school transport appeal system. Each local authority should have its own home to school transport policy and within that policy, they should set out their appeal procedure. This document should be easily accessible to parents upon request if not already available on their website or detailed within the local authority’s ‘local offer’ document.
What effect does SEN transport have on naming a school?
If a child has an EHC Plan the local authority will often name the nearest, suitable school in Section I of the Plan. However, the parents may not always agree with the choice of the school and may consider that another school should be named and that may require transport to be provided, this could include the choice of an independent school and/or a residential school.
The question is which school is a “suitable” school.
If there is a dispute about the placement then the local authority may offer to agree the placement of parental preference upon condition that the parents pay for transport. Education Advocacy would strongly advise seeking advice on this matter because it may be the case that the school being offered by the local authority is not suitable to the child’s needs, and that the school preferred by the parent is suitable; this could mean the local authority should name the parent’s choice of school and arrange the home to school transport.
In sections 38 and 39 of the Children’s and Families Act 2014, the duties of the LA in relation to the EHCP are discussed. The act says that parents have the right to name a particular school for their child and that the LA should attempt to secure a placement for their child there. The local authority may dispute this requested school on certain grounds, including:
- The child’s special needs and abilities
- The efficiency of education for the child or other students,
- The child’s age
- Or, most importantly to this article, whether the placement can be considered an efficient use of resources, including transport costs.
The matter of ‘efficient use of resources’ for the purposes of Section I of an EHC Plan and home to school transport is not a clear cut one. If there is a dispute about Section I of the EHC Plan and therefore indirectly in some cases, the provision of home to school transport, parents can appeal about Section I to the Special Educational Needs and Disability Tribunal.
When hearing appeals about Section I, the Tribunal can consider the following things:
- The relative transport costs of Schools A and B, with School A being the LA’s preferred choice, and School B being the parent’s preferred choice
- If the tribunal says that the parent’s choice of school is compatible with the efficient use of resources, the tribunal names only School B and the LA must pay the transport costs
- If the tribunal says that the LA’s choice of school is unsuitable and the parent’s preference is suitable, the tribunal names only School B and the LA must pay the transport costs – even if School B with transport is significantly more expensive
- If the tribunal says that the parent’s choice of school is incompatible with the efficient use of resources, the tribunal can name both School A and B, and parents may then make an arrangement with the LA to pay for the home to school transport to School B.
Post 16 Transport
For those young people age 16 to 19, attending a post 16 provision, each local authority will have its own Transport Policy, which should set out the arrangements for specific groups of young people in accordance with section 509AA Education Act 1996.
Those students with special educational needs and/or a disability, as well as those from low-income families should be a priority for the local authority, to consider what support is necessary based on the individual circumstances, to enable the young person to attend their educational establishment. It is not as clear cut as for those under 16!
If in any doubt, please contact Education Advocacy for advice.