This is Part 1 of a 2-Part series of blog posts on SEN Transport and considers the position for children of compulsory school age. Part 2 looks at the situation for Post 16 and can be found here.
Home to School transport is a perennial problem for parents and carers of children with Special Educational Needs and Disabilities (“SEND”). In theory it is reasonably straightforward, with the relevant law clearly set out at section 508B of the Education Act 1996. In practice it is a source of significant angst. Simply put, for children with SEND, the usual transport criteria (set out below) do not apply and all that needs to be considered is whether the child cannot reasonably be expected to walk to school by reason of their SEN, disability or mobility. That said, it is helpful to understand the law more generally in order to challenge any arguments frequently advanced by local authorities as to why a child cannot have transport provided.
Under the law local authorities must arrange free, suitable, home to school transport to their nearest suitable, qualifying school, for all ‘eligible’ children of compulsory school age[1] (the law is different for 16-19yrs and different again for 19yrs+). This applies to all children, not just those with SEND, and there are four categories under which a child might be eligible:
1) SEN, Disability or Mobility issues
2) Where the route to school is unsafe
3) Children who live beyond the statutory walking distance[2]
4) Children from low-income families.
It can be seen immediately that some children may fall into more than one category. It is also the case, though not as immediately apparent, that a child who has SEND does not need to have an Education Health and Care Plans (“EHC Plan”) in order to be eligible for transport. Where, however, a child does have an EHC Plan the local authority will always be responsible for making suitable transport arrangements to the placement named at section I, provided that the child is eligible; which they almost always will be in such circumstances.
A school will be a qualifying school if it is any of the following types of placement:
A maintained (i.e. publicly funded) school or nursery
An academy
A non-maintained special school
A pupil referral unit or
A city technology college.
A school for these purposes can also, if named at Section I of an EH Plan, be an independent school (whether mainstream or specialist), or even somewhere that is not in fact a school; such as an Alternative Provision setting that a child is attending because they cannot go to school.
What constitutes suitable travel arrangements covers a wide range of possible scenarios; from taxis, minibuses and escorts, to bus/train passes and even payments to parents for transporting their children themselves; provided in the case of the latter that the parents consent.
Crucially, however, the travel arrangements must be such that they enable the child to reach school in a condition that allows them to benefit from their education. They must also enable the child to travel in reasonable safety and comfort: see the recently updated Travel to School for Children of Compulsory School Age Statutory Guidance for Local Authorities January 2024 (“The Statutory Guidance”). The Statutory Guidance further suggests a maximum reasonable journey time of 45 minutes for primary school children, and 75 minutes for secondary school children; although it recognises that this is not always possible. Ultimately, suitability will need to be determined on a case by case basis by reference to an individual child’s circumstances including their age and disability.
If you are unhappy with a decision about transport, there is no right of appeal to the SEND Tribunal, rather any appeal must be made via your local authority’s own internal appeals processs, details of which should be publicly available; usually on their website.
If you are struggling to secure suitable transport arrangements for your child, SEND Advocacy can advise and assist you. Contact us today.
[1] Effectively covering ages 5-16, compulsory school age runs from the start of the term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which they turn 16. [2] This is currently defined as 2 miles for children under 8, and 3 miles for those 8+. The distance measured is the shortest route along which a child can walk in reasonable safety.
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