Consent has been obtained from the Parent & parental advocate in this case and names have been changed to ensure anonymity.

Thomas has an EHCP and is at a mainstream high school, which for the purpose of the case study shall be referred to as Tawa High School. The only setting written in section I – the placement section of the plan was Tawa High School.

In preparing the plan the Local Authority (LA) had consulted with other schools, but none were found to be suitable, and the LA therefore named Briony’s (mum’s) choice Tawa High School. Briony applied for Home to School Transport (HtST) and arrangements were made for Thomas in the form of a bus. This was not successful and after review, the LA agreed to fund a taxi to / from school. This arrangement worked well until the LA started to use a different taxi firm – there were a number of late arrivals and cancellations.

Briony complained to the LA and requested that the original taxi firm be used. The LA reviewed the HtST arrangements and decided to stop HtST entirely. When Briony queried this decision, the LA responded that as the school named in the EHCP was parental preference, Thomas was not eligible for transport under section 4.1 of the HTST policy, therefore it had been withdrawn.

Part 4.1 of the Travel Policy

4.1 Parental preference for a school

Whilst parents/carers have the right to express a preference for which school they wish their child to attend, a child and young person who attends a school which is further away than the nearest suitable qualifying school with places available, will not be eligible for travel support, except in exceptional circumstances, even if the distance from home to the school they attend is more than the qualifying walking distance.

Any travelling arrangements or expenses will be the responsibility of parents/carers if there is a nearer suitable qualifying school. It is the parents’/carers’ responsibility to ensure their child gets to and from school safely and they should consider the practicalities of choosing a school that is not within the qualifying walking distance.

SENDIASS discussed the law and guidance Advice around Section 508B and 35B of the Education Act.

Section I of the plan named Tawa High School only – another suitable qualifying school had not been identified and entered into section I.

If the LA had entered Tawa High School into section I and named another suitable school ( which decision the parent could challenge at a tribunal ) then this may be different but only if the total cost of the parent’s choice of school compared to the LA’s choice of school (including transport) is so significant as to represent an inefficient use of resources. The LA can then name two schools, with the condition the parents provide transport to their choice of school. (Case law: S and another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346)

Briony was aware of her right to make a stage 1 appeal against the LA’s decision and set out her reasons for her appeal – excerpt below.

I refer you to the Education Act 1996 and Special Educational Needs and Disability Code of Practice (0-25 years), 2015. Thomas is eligible for transport to school in accordance with section 444(5), section 508B and schedule 35B of the Education Act 1996 for the following reasons:

• He has a special education needs and SEN diagnosis (omitted for anonymity)

• He is of compulsory school.

• He attends a school beyond the statutory walking distance and has an EHCP.

• He is from a low-income family and entitled to free school meals.

• Tawa High School is named in his EHCP and is his nearest suitable available school.

• You are aware that Thomas has an Educational Health Care Plan in which Tawa High School is named in section I as his school.

• You are aware that no closer suitable available school is named within the EHCP, and that Tawa High School is not stated on his EHCP as being ‘parental preference.’

• As you are aware, the legal position is that Tawa was named in Thomas’s EHCP as the nearest available suitable school.

• The Local Authority was unable to suggest any other suitable available school. We understand that they consulted other schools, however the names of those schools were not shared with us.

• The only school that responded to the consultation stating that they could meet needs and offer a place was Tawa High School. In law it is, and was named as, the nearest available suitable school, not parental preference.

I would also draw your attention to the case of S and Another v Dudley Metropolitan Borough Council [2012] EWCA Civ 346 where it was confirmed that even if the Local Authority had named 2 suitable schools in section I and identified Tawa High School Academy as parental preference with the condition that parents provide transport, (in which case we would have challenged this at Tribunal ), that they can only do so if they can evidence that the total cost of the parent’s choice of school compared to their choice of school, including transport, is so significant as to represent an inefficient use of resources.

It is highly unlikely that they would have been able to evidence this in the circumstances described above. However, this does not apply as Tawa High School Academy is in law the nearest suitable available school.

 I would also remind you that you originally assessed Thomas as eligible for transport and this commenced in xxxx. Your decision was further reinforced in xxxx when you changed his transport from a shared minibus to a taxi.

Thomas is an eligible child, you assessed him as such in January, there have been no changes to his circumstances since then and there is no legal basis for withdrawing transport. Therefore, suitable transport should be reinstated without delay.

My email dated xxxx sets out what we consider is suitable in this respect based on Thomas’s special educational needs. I look forward to receiving your written response within 20 days, and the reinstatement of suitable transport for Thomas together with confirmation that this will continue into the next academic year.

Briony submitted her appeal but had to remind the LA that they had exceeded their deadlines.

You had 20 working days to respond.

• This expired yesterday - xxxx

No response has been received. Therefore, it is my intention to

• ·Make a formal complaint.

• ·Seek legal advice to start Judicial Review proceedings.

This does not absolve you from your obligation to respond to this appeal.

Several days later Briony again contacted the LA with regards to the matter being allowed to drift.

To comply with the Council’s policy, we should have received a response to this appeal by xxxx.

Below you state it would be heard by your appeals panel on xxxx. This was 5 days ago, and we still have not received a response.

This is unacceptable and contravenes the Council’s own policy.

Please provide the response without further delay. If this is not received by 17.00 on Monday, then we shall take the further action detailed below.

Regards,

The LA finally wrote to Briony to advise that they had reconsidered their decision and would offer HtST. The LA stated that the application was processed correctly & in line with the Travel Policy. However, on this occasion they found that Briony had presented sufficient information, which demonstrated that there were exceptional circumstances and therefore transport should be arranged outside the policy.

Briony although pleased with the eventual outcome was both disappointed and exhausted with the amount of effort that she had had to put into resolving the dispute. Moreover, as Thomas could not travel into school after the HtST was removed, he had missed out on on-site learning, whilst the dispute was underway.

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Fact sheet 2 - Home to School Transport number 22

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