Most children make their own way to school either accompanied by their parents or independently if they are older. For some children with special educational needs and/or disabilities (SEND) this may not be possible, either because their school is too far away, because they are not able to walk or because they can’t use public transport in the same way as other children.
Local authorities must make free travel arrangements for these children.
Local Authorities Duties:
Section 508B(1) of the Education Act 1996 – A local authority in England must make, in the case of an eligible child in the authority’s area to whom subsection (2) applies, such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child’s attendance at the relevant educational establishment in relation to him, are made and provided free of charge in relation to the child.
The government has also issued statutory guidance:
- Home-to-school travel and transport guidance, July 2014.
Local Authorities must have regard to this when carrying out their duties on home to school travel and transport and sustainable travel.
Local authorities also have the discretion under section 508C of the Education Act 1996 to provide transport for a wider group of children. This could be free or charged for.
Who is an eligible child?
There are four categories all of which cover only children of compulsory school age who attend “qualifying schools” and:
- Live beyond the statutory walking distance (2 miles for under 8’s and 8 and over 3 miles) OR
- Children with SEND or mobility problems who cannot reasonably be expected to walk to school OR
- Children whose route to walk is unsafe OR
- Children from low income families.
These are separate categories.
This applied if your child lives outside the statutory walking distance to their nearest suitable school. Statutory walking distance is defined as 2 miles for children under 8, and 3 miles for age 8 and over. The distance measured is the shortest route along which a child can walk in reasonable safety. This may not be the same as the driving route and may include footpaths.
Unsuitable walking route
This applies if your child lives within the 2 or 3 mile limit but there is no safe walking route, for instance if the only route were along an unlit busy road with no pavement.
Children with a SEND or mobility difficulty
If your child cannot reasonably be expected to walk to school because of a special educational need, disability, or mobility problem, they will be entitled to free school transport, regardless of the distance they live from the school. An assessment must be made on the child’s individual needs.
Statutory guidance says:
‘Usual transport requirements (e.g. the statutory walking distances) should not be considered when assessing the transport needs of children eligible due to SEN and/or disability.’
This criterion applies to all children with SEND or mobility difficulties, not just children with EHC plans or who attend special schools.
Some children may be unable to walk to school because of a physical disability or medical issue; for others there may be psychological or behavioural issues which may put a child at risk. Local authorities should consider whether a child can walk, along or with an adult and if it would be reasonable to expect a parent to accompany the child on foot. Age should also be considered, it may be reasonable to expect a parent to walk a 6-year old to school but not a 15 year old.
Your ability to drive you child to school must not be considered when looking at eligibility under special educational needs or disability.
Families on a low income
If your family is on a low income, the distance criteria are more generous by lowering the statutory walking distance for over eights and extending the range of schools. You will meet the criteria for low income if your child is eligible for free school meals or you are on the maximum amount of working tax credit or equivalent under Universal Credit. Your child will then be eligible for free travel if they are:
- Age 8 to 109 living over 2 miles from the nearest suitable school
- Age 11 to 16 living within 2 and 6 miles of school if it is one of the three nearest suitable schools
- Age 11 to 16 living between 2 and 15 miles of the nearest school preferred on the grounds of religion or belief.
To be entitled to free school transport, your child must attend a ‘qualifying school’.
- maintained schools
- non-maintained special schools
- Maintained nursery schools
- Academies and free schools
- An independent school named in section I of your child’s EHCP – if this is the only or the nearest school named in the EHCP. (You can’t get school transport if your child does not have an EHCP and is placed at an independent school at your own expense).
Eligibility for transport is considered to the nearest suitable school only.
What is relevant educational establishment?
- The qualifying school the child is registered at, as long as no suitable arrangements have been made enabling him or her to become a registered pupil at a qualifying school bearers to their home.
- For a child without an EHCP, all maintained schools would be deemed suitable as there is no EHCP to dictate otherwise.
- Note the law requires that suitable arrangements have been made by the local authority for enabling the child to become a registered pupil at a qualifying school nearer to their home, if the LA wishes to argue to child is NOT attending the relevant educational establishment for travel arrangements.
- So the fact that an alternative school has been mentioned as a possibility may not preclude a further away school from being the relevant educational establishment, e.g. if the school has no available places.
Nearest qualifying school – with an EHCP
If a qualifying school is named in the EHCP it will be the relevant educational establishment because no arrangements have been made for the child to attend any nearer suitable school.
At the point of choosing a school, parents are often told their choice of school is further away than the LA’s choice, so the LA will only name parents’ choice in Section I if parents transport their child – this does not represent correct legal position – Case law Dudley Metropolitan Borough Council v Shurvington (2012) EWCA Civ 346 provides the correct process / steps to follow.
Children with EHC plans – school preference
If your child has an EHC plan, you have a right to have your preferred school named in section I if it meets specific criteria, including suitability and efficient use of resources.
If the EHC plan names your preferred school with no conditions and it is the only school named, then it automatically counts as the closest suitable for transport purposes and the local authority must provide free school transport if your child is eligible.
Sometimes however, the local authority may consider that another school nearer to home is also able to meet your child’s needs and that the additional transport to your preferred school would cost too much. The local authority may then either:
- Name the further school as parental preference but state in the EHCP that there is a closer suitable school and the parent will be responsible for school transport
- Name the closer school only.
The local authority should not refuse to name your preference if there would only be a small cost difference. If you are not happy about the named school, you can appeal to the SEND tribunal.
If your child is on roll at a mainstream school but has been placed in a pupil referral unit temporarily then they may get school transport if they meet the eligibility criteria, even if they don’t qualify for their usual school.
Most children now start school in the September after their fourth birthday. There is however no duty to provide transport until children reach compulsory school age – the term after they turn five. Your local authority may provide transport for four year olds in receptions class if they will be eligible when they are five. If you are turned down, it may be possible to challenge a decision on equality grounds if your four year old has to attend a school at some distance from home, rather than their local mainstream school.
Including transport in EHC plans
If your child has an EHC plan, you do not need to be concerned if transport is not mentioned, as eligibility is covered under general education law. Transport does not normally count as special education provision. It may be included only in exceptional circumstances for children of compulsory school age. This might be where specialised arrangements are necessary to enable the child to access education.
If your child attends a residential school named in an EHC plan, your local authority should make reasonable travel arrangements. This might be direct transport or reimbursement of travel costs. There’s no legal definition of what would be reasonable but we would expect the minimum to be weekly transport for weekly boarders and at the beginning and end of holidays for termly boarders. The local authority may fund additional visits by parents or expenses for attendance at annual reviews.
Transport outside the normal school day
The legal entitlement for transport is for the beginning and end of the normal school day only. You don’t have a right to special arrangements to enable your child to attend appointments or after school clubs (childcare or school run clubs). If you do need flexible arrangements, it may be worth considering a personal travel budget or mileage allowance if you are able to take your child.
School transport options – suitability
The duty on the local authority is to make suitable ‘travel arrangements’, which may not be door to door transport. Depending on the needs of your child you might be offered:
- A bus pass for use on public transport
- Travel training to enable an older child to walk or take public transport on their own
- A place on a dedicated school bus
- A shared taxi or minibus
- An individual taxi with or without an escort.
Also, with your consent only
- A mileage allowance or personal transport budget
- A walking escort.
Some families like the flexibility of a personal transport budget to enable them to make their own arrangements. The local authority cannot however insist on this, even if you have a Motability car or your child gets higher rate mobility of Disability Living Allowance (DLA).
Suitable school transport
The local authority has a duty to provide suitable transport, which must be non-stressful. This is defined in case law as transport than enable a child:
‘to reach school without undue stress, strain or difficulty such as would prevent his from benefiting from the education the school has to offer, [……] [and] to travel in safety and in reasonable comfort’.
A bus pass and a programme of travel training may, for instance, be appropriate for a young adult with moderate learning difficulties but highly unsuitable for an 11-year-old with severe autism and sensory sensitivities, who may need door to door transport with an escort. Children with physical disabilities may need specialist seating or a wheelchair accessible vehicle.
Statutory guidance recommends maximum journey times or 45 minutes for primary aged children and 75 minutes for secondary.
Guidance is clear that all staff should have up to date training including:
- An awareness of different types of disability including “hidden” disabilities
- An awareness of discrimination
- Skills to communicate with children with different disabilities and to manage behaviour.
Local authorities must also ensure that the necessary safeguarding checks are carried out.
Applying for school transport
You need to apply formally for school transport to the local authority. Some local authorities require parents to reapply either annually or at major transition points such as moving to secondary school. Information on how to apply is on the LA’s website and Local Offer site.
Our understanding is that you have to apply at key stage transfer times as well as every year for post 16’s.
You should include as much information as you can with your application. It’s important to show that your child meets the eligibility criteria. If you are applying under the SEND criterion, explain in detail:
- Why your child is not able to walk to school, both physical reasons and any need for close supervision
- Give details of the actual journey on foot and how your child would be affected e.g. would they arrive stress free?
- Is it safe to walk? Are there lights and paths?
- If you have professional evidence about your child’s walking ability or the difficulties they have in public places, include that too.
Challenging decisions local appeal
You may be unhappy with the LA’s decision on school transport, either because they have decided your child is not eligible or you consider that the transport offered is not suitable. The LA has a complaints and appeals procedure for transport decisions and this is published alongside the transport policy.
Statutory guidance recommends a 2 stage procedure involving an initial review by a senior officer followed by an independent appeal panel. However there is no legal requirement to follow this.
If you are not happy with the outcome of the local appeal process, you may be able to take it further with the LGO – www.lgo.rg.uk
It may be possible to take legal action against the local authority via the judicial review process. It is important to get independent legal advice before taking this step.
If there is a dispute over the closest suitable school and the LA has put more than one school in section I of the EHCP or a note to say that parents will be responsible for school transport, you can appeal to the SEND tribunal to have your preference named as the only school.