with SEND Advocate Diana Read
SEND transport is usually the final hurdle for families seeking an Education, Health and Care Plan for their child. It’s also one of the biggest costs for local authorities and so they do everything they can to avoid funding it where possible.
LAs have been known to use transport as an area for negotiation; we’ll fund the placement if you get the child there yourself. LAs are usually legally liable to fund transport for named placements in EHCPs for under 16s, but some families will take this deal to secure a needed placement quickly without needing to go to Tribunal.
Other issues are the types of transport offered – LAs would rather offer a shared minibus or taxi, but for some children, this just isn’t viable, especially if they need a trained escort as well.
Helping us through this transport jungle is Diana Read, a long-time SEND advocate who, among many roles in SEN, is a former Independent Supporter (remember them?). Diana is the parent of a son with Down’s Syndrome who was one of the first children to have a statement of special educational needs following the Education Act 1981. Her son now lives happily in a supported living home, with six other adults.
SEND Transport Truths by Diana Read
To say that school transport for children and young people who have additional needs is a minefield would be an understatement at least. Misinformation and disinformation abound and all too often it seems that local authorities, whether by accident or design, fail to follow the law.
Getting your child or children ready and off to school can be difficult enough as it is. Leaping over the additional hurdles erected by LAs can be the last straw. The result is that families are left struggling sometimes to the point of collapse.
What’s the law?
The law and statutory guidance relating to school transport is separate from the Children & Families Act, 2014, which governs identification, assessment and provision for children and young people with additional needs. There are different rules for different age groups.
Councils must provide free transport for eligible pupils of compulsory school age, from the term after their fifth birthday until the end of Year 11. Transport for pre-school and post 16 pupils is mostly discretionary. This is another can of worms that will be dealt with in a separate article. This one is about the rights of children with SEND who are of compulsory school age.
There is a general expectation that parents will accompany their children to school where necessary. However, the law and statutory guidance recognises that this isn’t always easy. Section 35 (b), Education Act, 1996, sets out four separate categories through which children of statutory school age can be eligible for free transport to be provided by the Local Authority. They are:
- Walking distance – children whose nearest suitable school is not within statutory walking distance, which is 2 miles in the case of children up to 8 years old and 3 miles for those aged 9 to 16 (end of Year 11) – this is known as statutory walking distance of the qualifying school.
- Special educational needs, a disability or mobility difficulties eligibility – Children living within statutory walking distance of their qualifying school who because of their special educational needs, disability or mobility problems cannot reasonably be expected to walk to school, accompanied by an adult if necessary. Usual walking distances are not to be taken into account when considering eligibility in this category and transport needs for each child must be individually assessed. It is not necessary for a child to have an EHCP to qualify under this category.
- Unsafe route eligibility – children who cannot reasonably expected to walk to the nearest suitable school because the nature of the route is deemed unsafe to walk.
- Extended rights eligibility – Children who are entitled to free school meals or their parents are in receipt of maximum Working Tax Credit provided:
- the nearest suitable school is beyond 2 miles (for children over 8 and under 11)
- the school is between two and six miles (if aged 11-16 and there are not three or more suitable nearer schools)
- the school is between two and 15 miles and is the nearest school preferred on the grounds of religion or belief (aged 11-16)
- Secondary age pupils from low income families who receive education other than at school (e.g. at a PRU or FE college) which is over two miles and up to six miles from their home will also be eligible for LA school transport, whether or not there is a nearer suitable school. (para 13, Schedule 35b, Education Act 1996)
There is further explanation set out in the statutory guidance that explains the law, Home to School Travel and Transport Statutory Guidance, 2014. It’s well worth familiarising yourself with this guidance. You may need to remind your LA that it must comply with the law and guidance, even if its own policies say something different.
What should happen when you apply for transport
Details of how to apply should be published online on LAs’ Local Offer pages. If you can’t find them, contact the LA’s School Transport Department or your SEND caseworker if you have one.
When considering transport requests, LAs cannot conflate the extended rights categories above, for example by agreeing that a child’s mobility problems or special educational needs make it unreasonable to expect them to walk to school, but then saying that they don’t qualify due to living too near to the school. This is a common reason often given for refusing transport to children with additional needs. Don’t be fobbed off!
Some children with SEND qualify under more than one of the above categories. If that’s the case, it will probably be more straightforward to make the case for transport under any of the categories other than SEND and mobility problems and so you may choose to focus on other categories that apply.
If your child doesn’t qualify under any other category, it’s certainly possible to obtain transport support under the category of SEND/mobility problems and you shouldn’t be deterred from asking.
Too much variation in approach
The Home to School Travel and Transport Guidance stipulates that LAs must assess the individual transport needs of a child with SEND and/or a disability in order to decide whether they are eligible for transport. In practice, there is no set procedure for conducting this assessment and how it’s approached can vary wildly between different LAs.
Therefore, it’s wise to provide as much evidence of your own as you can. Don’t rely too heavily on the contents of an EHCP, they often don’t include enough detail and won’t necessarily be sufficiently up to date, but do make sure you submit the most recent final version with your request. It has been known for LAs not to look at EHCPs or to look at the wrong version when considering transport requests.
Medical reports and information contained in annual reviews can be helpful. LA annual review report forms often include questions about pupils’ capacity to get themselves to school so it can be useful to let the school know that this is an issue (a switched-on school will probably be aware of this already) and get supporting information included within the annual review. School staff may be willing to provide written information at other times but it can be the case that some are unwilling due to what they perceive as a conflict of interest (the focus should be on the child of course). There is nothing in law to prevent professionals from commenting on difficulties that individual children might encounter in getting to school.
Get outside evidence if needed
- Consider asking your GP or any other medical practitioner involved with your child, including therapists, to provide written information relevant to mobility and transport and the difficulties that might arise if your child had to walk to school.
- Remember also to provide a written statement of your own, clearly detailing the difficulties and hazards that would be encountered if your child had to walk to school, even if there was an adult who could accompany them. Consider that while there may not be any physical barriers to your child’s mobility, hidden disabilities that result in lack of awareness or understanding of danger, behavioural issues such as impulsivity or associated with sensory processing and any medical conditions such as epilepsy, incontinence and so on must be taken into account.
All assessments for transport eligibility must be based on a child’s ability to WALK to school safely. It is IRRELEVANT whether there is a car and driver available, or whether the child receives the mobility component of DLA, other benefits or the family has a Motability car. LAs cannot take these into account when deciding eligibility for school transport. Neither can it require any financial contribution to be made from benefits or otherwise if your child is found to be eligible for transport. However, it can be useful to mention that your child receives the mobility component of DLA, has a Blue Badge etc. If this is the case, it highlights that other agencies, or the LA itself, have already found that your child requires support for their mobility.
If the LA decides that your child could reasonably walk to school if accompanied, that’s not the end of the story. It must then decide whether it’s reasonable for your child to be accompanied by an adult. For example, do parents/carers have commitments such as other children to get to school or do they have work or other caring commitments? Do parents/carers themselves have disabilities or medical conditions that would make it difficult for them to take their children to school?
Your child’s age should also be taken into account; it would be reasonable to expect that a child of infant school age would be accompanied to school but that’s not necessarily the case with older or secondary age children.
Bear in mind that the comparison to be made is with typically developing children of the same age, not others with SEND or disabilities. The Local Government and Social Care Ombudsman (LGSCO) has published many decisions where councils have been found to be at fault for not properly considering whether it would be reasonable to expect parents to accompany children to school. Searching the LGSCO website for ‘school transport’ decisions if you have time can be very useful in framing your argument if that’s where you find yourself. It’s also useful to read the LGSCO’s focus report on school transport. This explains clearly what LAs have to do when considering transport requests and gives examples of where things have gone wrong.
What is ‘the nearest /qualifying/suitable school’ all about?
The law and guidance often refers to ‘the nearest suitable school’ or the nearest ‘qualifying school’ but what do these terms mean?
In the case of a child with an EHCP, the nearest qualifying or suitable school is usually the school that is named in Section I of the EHCP. This can be a maintained mainstream or special school, an academy, an independent or non-maintained special school on the DfE Section 41 list or any other independent school named in Section I.
In a few cases, an LA may have agreed to name a school preferred by parents/carers in an EHCP although a nearer school can make the required provision at less cost (more efficient use of resources is the technical term). In these cases, the LA should name both the nearer school and the school preferred by parents/carers in Section I, making clear that the latter is named as parental preference. The LA is then relieved of its duty to provide transport. However, at the time of naming, the LA must be able to displace the parents’ choice in law. This means that there must be a place available at the LA’s preferred school and that the school is suitable.
If you find yourself in this position and disagree that the LA’s preferred school can displace your choice of setting, you have the right to appeal to the SEND Tribunal once a final or amended final EHCP is issued. Be aware that you will be appealing to have your choice of school named without condition, rather than appealing for transport to be provided as this is outside the Tribunal’s remit.
If your child does not have an EHCP and the LA argues that there is a nearer suitable school, a similar principle applies in that there must be a realistic prospect of a place being available. Unfortunately, without an EHCP, there is no possibility of appealing to the SEND Tribunal. You can, however, use the transport appeals process that each LA must have in order to appeal the decision.
Appeal the transport decision
This leads nicely to the next hurdle that you may have to overcome to secure transport. Whether or not your child has an EHCP, you have the right to appeal to the LA if it refuses your transport request. The next article in this series will explain how to go about lodging an appeal to an LA if it has refused to provide your child with home to school transport. I’ll also look at what the LA has to do once it has agreed to provide transport, including the types of arrangement that can be made, and what you could do if your LA’s SEND Transport Policy doesn’t comply with the law.
Remember these points:
- Distance is not to be taken into account when considering the transport needs of children with SEND, disabilities or mobility difficulties
- Children don’t need to have an EHCP to be eligible for transport due to SEND or mobility difficulties
- Transport needs must be assessed individually but this can be hit and miss. Provide as much evidence of your own as you can!
- LAs cannot base their decisions solely on physical ability to walk, they must also consider health and safety issues related to SEND or disability. This includes lack of road safety awareness, behavioural issues that might pose a risk to own or others’ safety, medical issues such as incontinence, epilepsy etc.
- When considering what is reasonable in terms of accompaniment, LAs must take into account family circumstances and the age of the child
- Don’t be fobbed off with rebuttals such as ‘they don’t meet the distance criteria’. Remember that you can appeal to the LA against a refusal to provide transport
- Make sure that you familiarise yourself with your LA’s SEND Transport Policy but bear in mind that it must comply with the law and statutory guidance
- If you’re considering engaging an advocate or lawyer to help you, check that they have knowledge and experience in the area of SEND school transport
Sources of further help and information
- SENTAS – charity providing advice and support specific to SEND Transport
- IPSEA – free legal educational advice for parents/carers/young people with SEND, Fact sheets on transport entitlement for children with or without EHCPs. Advice line calls available.
- CONTACT – free advice and support on education, social care and benefits for parents/carers/young people with disabilities, additional needs, medical conditions. Has a useful fact sheet on challenging unlawful LA transport policies. Helpline available.
- IASS (Independent Advice & Support Service) – free local advice and support for parents/carers/young people with additional needs.
- SOSSEN – charity providing legal advice for parents/carers/young people with SEND. Helpline available. Worth checking the website as they sometimes arrange webinars on topics including transport
I’ve been involved with SEND since my oldest child and only son was born with Down’s Syndrome forty years ago. He was one of the first children to have a statement of special educational needs following the Education Act 1981. I’d had no involvement with anyone with a disability or special need. I felt lost, bewildered and confused, having landed in a place I was not expecting. I was connected with some other local parents who had disabled children for support and we became an organised local support group, which at one time had over 400 members. Over the years, I’ve supported local parents of new-born babies with Down’s Syndrome and at my local hospital, and many other volunteer roles.
After my son moved out to live in his supported living home, I gained an honours degree in Linguistics, then worked in three different LAs as a special needs officer and casework manager for about 15 years, learning as I went along. My motto was and still is that there should be no sides as we should all be on the child’s side. I may have been a bit of a thorn in the side of some members of senior management though at times. I’m not sorry.
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