There are significant pressures on the budgets of local authorities and this impacts on school transport provision. Local authorities are seeking to save money wherever they can and one area where savings are sought is school transport, as in some cases it can be very expensive.

Where compliance with legal obligations comes second to budget considerations, disputes can arise. Parents and young people seeking to enforce legal rights to school transport and coming up against resistance from the local authority is common. In some cases, such disputes cause difficulties for children and young people in getting to their educational institution to receive an education.

What are the legal obligations of home to school transport?

The legal obligations of local authorities concerning home to school transport differ depending on the age of the child or young person and whether the child or young person is attending a “qualifying school”. 

The Education Act 1996 is the main piece of legislation governing school transport. There is Government guidance that is also relevant, including some that is statutory guidance:

1. Home to school travel and transport guidance 2014 (issued under section 508A and section 508D of the Education Act 1996); and
2. Post-16 transport to education and training 2019 (issued under section 508D of the Education Act 1996).

In addition to the specific duties of a local authority, detailed below, local authorities have general duties in respect of school transport:

1. Sustainable modes of travel strategy – local authorities must prepare a “sustainable modes of travel strategy” each academic year, containing its strategy to promote the use of sustainable modes of travel to meet school travel needs;
2. To have regard to religion or belief when exercising their school travel functions (under sections 508A, 508B, 508C, 508E, 508F and 509AA of the Education Act 1996) in connection with travel to or from school or other educational institution. Local authorities must have regard to any wish of a parent, child or young person for them or the child to be provided with an education or training at a particular institution where that wish is based on the parents’ or young person’s belief; and
3. Composite prospectuses – all local authorities are required to publish a composite prospectus, which must contain a summary of its sustainable modes of travel strategy and its travel arrangements under section 508B and 508C of the Education Act 1996. 

In addition to the general duties, the law requires local authorities to provide children with home address to school transport if they are eligible. This raises two questions, who is an “eligible child” and what travel arrangements must the local authority make?

What do you class as an "eligible child" for school transport?

There is an exhaustive list of eligible children in schedule 35B to the Education Act 1996. Eligible children include:

1. Children with Special Educational Needs (SEN), disability or mobility problems
2. Children who cannot reasonably be expected to walk to school because the route to school is unsafe
3. Children whose school is outside the statutory walking distance; and
4. Children from low income families entitled to free school meals etc

There are four additional points that also have to be considered:

1. Does the eligible child attend a “qualifying school”? 
2. Has the local authority made “suitable arrangements” to enable the child to attend a nearer school?
3. What is the distance of travel? 
4. Where is home?

In terms of travel arrangements that must be made for each eligible child, a local authority must make the arrangements that it considers necessary in order to secure suitable home to school travel arrangements, for the purpose of facilitating each child’s attendance at school. The transport must also be free of charge.

The duty does not arise if suitable and free travel arrangements are already in place (e.g. free bus passes) (section 508B(2) of the Education Act 1996).

Travel arrangements means those of any description and includes arrangements for the provision of transport, but only include the following if made with the consent of a parent:

1.    Arrangements for the provision of an escort;

2.    Arrangements for the payment of whole or any part of a person’s reasonable travelling expenses; and

3.    Arrangements for the payment of allowances that relate to the use of particular modes of travel.

Is free home to school transport included in an Education Health Care Plan (EHC plan)?

If your child has SEN and has an Education Health Care Plan (EHC plan), the provision of free home to school transport will not be included in the EHC plan, so you will need to speak to your local authority SEN case worker about putting arrangements in place. 

The fact that a school is named in section I of an EHC plan does not automatically entitle a child to free school transport to that school. In many cases a child with an EHC plan  will be entitled to free school transport, but that will be because they are an eligible child, not because of their EHC plan.

You should also be aware that a local authority must not do anything when complying with its obligations under school transport law that constitutes discrimination, harassment or victimisation. It must also comply with the duty to make reasonable adjustments in respect of those with disabilities. 

What to do next?

If you believe your child is eligible for free home to school transport, you should seek out information from your local authority. The best place to start is its website. If you are having difficulties securing school transport or do not feel your local authority is giving you the help you need, there are options available to you. This includes judicial review. 

We have a number of specialist SEN and disability solicitors. If you would like to discuss your particular circumstances, please contact Thomas Emmett, Head of Education, on 01245 453847 or email thomas.emmett@birkettlong.co.uk