Home to School Transport - what you need to know

Home to school transport is often a key issue for parents and carers. It is also important for a local authority, but for different reasons, including that the cost of transport can be significant. Therefore, a local authority will often seek to reduce their financial liability where possible, at times despite what the law states.

I have heard of circumstances where local authorities exert pressure on parents to accept less favourable terms regarding transport in exchange for naming the school of parents choosing in Section I of the Education, Health and Care Plan (EHCP).

Transport can take many forms, and it is not, as a general presumption, a ‘door to door service’. However, what mode of transport is appropriate will depend on the needs of the individual child, and in some cases, a more tailored mode of transport may be required. For example, it may not be appropriate in some circumstances for a child to travel alone in a taxi, so a chaperone could be required.

In establishing what your child’s rights are with respect to home to school transport, it is necessary to look at the law as it applies to their age group, as it differs depending on a child’s age:

a)   Early years (below 5)

b)  Compulsory School Age (5 to 16)

c)   Sixth Form (16 to 19*) – *the law for those in sixth form can apply if the young person is over 19, but their course started prior to their 19th birthday.

d)  Adult Learner (19 – 25)

Compulsory School Age

Section 508B of the Education Act 1996 (‘the Act’) states that in certain circumstances, local authorities must provide free transport from home to “qualifying schools” (a qualifying school is a maintained (publicly funded) school or nursery, a non-maintained special school pupil referral unit, a city technology college, or an academy) to “eligible children”.

There are two elements to this duty:

1. Is the child an “eligible child”; and

2. If so, what travel arrangements must be made.

Eligible child

The categories of “eligible child” are set out in law and are:

1. Children with SEN, disability or mobility problems

If a child is:

(a) of compulsory school age;

(b) has SEN, a disability or mobility problems;

(c) is a registered pupil at a qualifying school which is within walking distance of their home (walking distance is 2 miles for children under eight and 3 miles for those eight and over);

(d) no suitable arrangements have been made by a local authority for them to become a registered pupil at a qualifying school nearer to their home; and

(e) having regard to their SEN, disability or mobility problems (as applicable), they cannot reasonably be expected to walk to school,

they are an eligible child.

2.       Children who would travel a route to school which is unsafe

If a child is:

(a) of compulsory school age and is a registered pupil at a qualifying school which is within walking distance of their home;

(b) no suitable arrangements have been made by a local authority for enabling them to become a registered pupil at a qualifying school nearer to their home; and

(c) having regard to the nature of the routes which they could reasonably be expected to take, they cannot reasonably be expected to walk to the school at which they are registered,

they are an eligible child.

3.       A child who is required to walk outside statutory walking distance to school

If a child is:

(a) of compulsory school age and is a registered pupil at a qualifying school which is not within walking distance of their home;

(b) no suitable arrangements have been made by a local authority for boarding accommodation for them at or near the school; and

(c) no suitable arrangements have been made by a local authority to enable them to become a registered pupil at a qualifying school nearer to their home,

they are an eligible child.

4.       If a child is from a low income family

Children aged 8 to 10 from low income families who live more than 2 miles from a qualifying school become eligible for free school transport.

Children who are of secondary school age, from low-income families and attend a qualifying school over 2 miles and up to 6 miles from their home will be eligible for free school transport even if the qualifying school they attend is not their nearest suitable school, provided there are not three or more suitable qualifying schools which are nearer to their home.

Children who are of secondary school age, from low-income families, and attend a qualifying school over 2 miles but under 15 miles away from their home will be entitled to free school transport if their parent has expressed a wish for them to be educated at that particular school based on the parent’s religion or belief for them to be educated at that school, and, having regard to that religion or belief, there is no nearer suitable qualifying school.

What travel arrangements must be made?

A local authority must make such travel arrangements for an eligible child as they consider necessary in order to secure free, suitable home to school travel arrangements to facilitate the child’s attendance at the relevant education setting. Travel arrangements have a meaning in law, being travel arrangements of any description and including arrangements for the provision of transport, but only include the following if made with the consent of parents:

(a) Provision of an escort;

(b) Payment of the whole or any part of reasonable travelling expenses; and

(c) Arrangements for the payment of allowances in respect of a particular mode of transport.

 The Travel to school for children of compulsory school age statutory guidance for local authorities (June 2023) states that:

(a) Local authorities must ensure that the travel arrangements they make take account of the needs of the child concerned.

(b) Travel arrangements should enable a child to travel in reasonable safety and comfort and without undue stress, strain or difficulty so that, wherever possible, they arrive at school ready to learn.

(c) Some children may need particular arrangements to be made to meet their needs.

(d) A child’s needs may need to be reassessed from time to time. As some children with special educational needs can find change distressing, local authorities should provide parents with as much notice as possible of any changes to a child’s travel arrangements. 

(e) When a local authority makes travel arrangements for a child with medical needs, they should consider whether and how those needs might affect the child during their journey to and from school and, where necessary, put in place proportionate arrangements to manage those needs.

(f)  As a general guide, the maximum journey time for a child of primary school age should be 45 minutes each way and 75 minutes each way for a child of secondary school age, including any time taken to walk to a pick-up point, but there will be circumstances in which this is not possible. Wherever possible, a child should not be expected to make several changes on public transport. 

(g) For travel arrangements for children with special educational needs, disability or mobility, shorter journeys are particularly desirable, perhaps because a child’s special educational needs or disability mean they become distressed while travelling.

As above, the travel arrangements do not need to be door to door. It can be from a pickup point so long as the arrangements are suitable, which is a matter of judgment for a local authority.

Early Years

For those of non-compulsory school age, there is no legal obligation on a local authority to provide free transport, but a blanket refusal could be discriminatory and unlawful.

Section 509A of the Act states that a local authority may provide assistance with transport if they are satisfied that, without such assistance, the child would be prevented from attending the relevant education setting. Assistance can consist of making arrangements for the purpose of facilitating attendance or paying for all or part of the reasonable travel expenses. When considering whether to provide assistance, a local authority should have regard to whether it would be reasonable to expect arrangements to be made at other premises if this is nearer to a child’s home or otherwise.

Sixth Form

Section 508C of the Act establishes that a local authority may make such travel arrangements as are deemed necessary for the purpose of facilitating attendance in an education setting. With sixth form students, there is no requirement that transport be provided free of charge.

Each year, a local authority must publish its transport policy by 21 May and set out the arrangements available and the eligibility criteria. The transport policy must specifically include arrangements for those with SEN and disabilities.

The local authority has the discretion to determine what is necessary but must have regard to sections 509AA and 509AB of the Act. In particular, a local authority should consider:

a. The needs of those whose attendance would not be practical if no arrangements were made (especially for those most vulnerable, including those with SEN and disabilities)

b.       Having a reasonable opportunity to choose between establishments

c.       Distance, journey times, nature of the route and any alternative route

d.       Cost of transport and alternative means

e.       Age, ability and aptitude

f.        Any learning difficulties

g.       Quality of the education or training

h.       The location and times at which relevant training is provided

At the review of an EHCP or Transitional Review, it is key to reassess transport and if/how this will be provided. Don’t assume that a local authority will continue to provide this. Even where a school/education establishment is named in Section I, it does not provide an automatic right to transport even where it had been provided previously.

Adult Learners (19 – 25)

Similar to sixth form students, under Section 509F of the Act, a local authority must make such arrangements for the provision of transport as they deem necessary to facilitate attendance at an education setting. In deciding what is necessary, a local authority should consider the nature of the route and other routes an adult learner could reasonably be expected to take. Additionally, the same criteria for sixth form students at e.–h. noted above applies.

A local authority is again required to publish a Transport Policy by 31 May each year, setting out arrangements for adult learners with an EHCP. In contrast to sixth form students, travel arrangements made under Section 508F(1) of the Act should be provided free of charge.

Transport and EHC Plans

It is important to note a few key points relating to school transport and its interrelationship or otherwise with EHC plans:

• Transport is rarely specifically noted in Section F of an EHCP. However, transport is capable of being a Special Education Provision if it specifically educates or trains and, therefore, would be stated in Section F of an EHCP. This will be very fact specific to the individual case.
• When determining the school named in Section I, transport will likely be relevant. Often, a local authority will state that there is a nearer suitable school which can meet needs, but the parents dispute that assertion. This can be challenged at the SEND Tribunal. If both schools are suitable then transport costs will be very relevant. It can be agreed for a child to attend the school favoured by the parents, but with a caveat that the parents will meet all or some of the costs. However, where a local authority proposes an alternative school which is nearer, there must be places available and a genuine prospect a child would be accepted.

· As stated above, a local authority’s duties to provide transport differ depending on age. Transport should be considered at the Transitional Review between compulsory and non-compulsory school age.

How to Resolve a Dispute?

Given the importance of access to education, disputes regarding transport should be dealt with promptly and efficiently. There are various routes of recourse, and the best way to resolve any dispute will depend on the circumstances. In broad terms, transport can be challenged by:

• a local authority internal appeal process.

• a complaint to the Secretary of State for Education. There is no specific timeframe for complaints of this nature, and whilst not a prerequisite, there is an expectation that the internal complaints procedure of a local authority would have been followed.

• Complaint to the Local Government and Social Care Ombudsman

• Judicial Review - This is a process in which a judge considers the lawfulness of a public body decision but can generally only be used as the last route of recourse. A Pre-Action Protocol letter is the first stage required, and the local authority has 14 days in which to respond. This often can be the most effective route of recourse, triggering a prompt response from the local authority.

• SEND Tribunal - in relation to school placement or if transport is a provision stated in Section F.

The law in this area is complex and differs depending on the age of the child. It is, therefore, important to seek legal advice early in order to resolve issues promptly and reduce any disruption to schooling. Birkett Long’s Education Team are education law experts and can guide you through any legal dispute with the local authority. 

If you require further advice or assistance with regard to school transport or any other education law issue, please get in touch. I can be contacted on 01245 453805 or via email at madeleine.oakley@birkettlong.co.uk