Understanding your rights on SEN home to school transport and parental preference of school placement

Understanding your rights on SEN home to school transport and parental preference of school placement.

Background

One of the most common queries Sentas gets from parents is regarding parental preference for naming a school in an EHCP and how this can affect their rights to home to school transport.

When considering the school to be named in an EHCP, Local Authorities (LA’s) tend to say that if your child is eligible they will provide SEN home to school or college transport only to where the LA deems to be the nearest suitable school. LA’s say that parents can use parental preference to name a school that is further away but then the parents will become responsible for the costs of transporting their child.

Legislation for naming a school or college in an Education Health and Care Plan (EHCP)

Section 38 and 39 of the Children’s and Families Act relate to the duties of the Local Authorities when creating a draft and finalizing an EHCP.

The Act says that parents or young adults have the right to name the school or college that they wish the Local Authority to secure a placement at for their child.

The Local Authority (LA) must name the school or college requested by the parent or young adult unless the school or college is unsuitable for the child’s age, ability or special need, or the attendance of the child at the school or college would be incompatible with the efficient education of others, or the efficient use of resources (for example transport costs).

What effect this should have on naming a school with regards to transport

The important wording in the Children’s and Families Act is that the parental choice of education institution must be named unless it is incompatible with an “efficient use of resources”.

Most LA’s say that they will only provide transport to the nearest suitable school with no exceptions, and if the parents preference of school is further away they will agree to name the school but the parents will be responsible for the costs of home to school transport (some LA’s even ask parents to sign a form to agree that they must pay entirely for the cost).

However, should the school choice can be taken to a tribunal asking for only the parents choice of school to be named, with the LA asking for both schools to be named assuming parents pay the transport for their choice of school, there is a process that will be followed by the tribunal in deciding the matter.

  • 1) The tribunal will determine the relative transport costs of the two schools, assuming the Authority will have to provide transport to both. In this example School A is the LA’s choice of school, School B is the parents’ choice of school.
  • 2) If the tribunal determines that the costs of transport to School B is not incompatible with the efficient use of resources, the tribunal must name School B, and only School B, even if School A is also deemed suitable.
  • 3) If the tribunal determines that the cost of transport to School B is incompatible with the efficient use of resources then the tribunal may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.

The above analysis must be applied before a Local Authority can lawfully relieve itself of the duty to provide home to school transport.

 

What is “incompatible with an efficient use of resources?”

This is obviously an important question and one to which it is hard to know the answer. I believe that it needs to be tested by parents taking cases to tribunals to get decisions that may act as benchmarks.

It would make sense for the LA to carry out the above process before refusing to provide transport to a parent’s choice of school. How can a LA argue at a tribunal that naming a parent’s choice of school would be incompatible with an efficient use of resources when they haven’t calculated the difference in cost?

In fact, without knowing the difference in transport cost between the two schools it could be argued that the LA’s must name the parents’ choice of school, as they wouldn’t know one way or the other whether it would be incompatible with an efficient use of resources for a child to attend the parents’ choice of school.

There will be cases that are much easier to argue in the favour of the parents’ preference of school. I suggest that most cases that could be argued successfully would involve transport having to be provided to both the parents and the LA’s choice of school. I have listed a couple of example arguments that could be used below:

  1. Transport would have to be provided whether it was the LA’s choice of school or the parents, and the extra distance for the parents’ preference is a less than a few miles. It could be argued in this case that the actual extra cost of transport for LA’s would be minimal i.e. a few hundred pounds only over a school year.
  2. The parents’ choice of school is further away, however there is shared transport used for a group of students in the local area to the school in question. Assuming there is space on the shared transport it could be argued here that the extra cost would be minimal, even for a child who is within walking distance of the LA’s choice of suitable school.

This article may raise issues for parents in a variety of circumstances, such as their child’s EHCP has just been finalized and either the parents have not been given their choice of school, or the LA has named both choices of school but the parents are having pay for the transport costs to their preferred school.

If you are currently going through the EHCP assessment process and your LA are saying that they will only name your choice of school if you are prepared to pay the transport costs.

There should be some questions that need to be answered: have the LA told you the difference in transport costs? If so, does that difference seem relatively low? Could you source a cheaper transport option yourself and ask for a personal budget?

To challenge this at first tier tribunal you would have to ask for only your choice of school to be named in the EHCP, if the LA want to name both their and your choice of school, with your choice being named if you will pay the transport cost.

Have you just gone through the EHCP assessment process and the LA have refused to only name your choice of school due to transport costs?

You have two months to appeal the school placement to first tier tribunal, asking for only your choice of school to be named in the EHCP, there is no need to consider mediation for this issue. The same questions need to be asked as in the paragraph above.

 Have you already signed a form saying you will pay the transport costs to your choice of school?

If so, was a comparison of transport costs ever completed by the LA? Would the difference have been incompatible with an efficient use of resources? This would appear to be the most difficult of the three situations listed to challenge.

It could be argued that if the LA hadn’t completed the transport cost comparison (and after investigation that the extra transport costs were not incompatible with an efficient use of resources) that the LA were failing to do their duty in allowing a parent to access their preferential school as stated by the Children and Families Act.

The next question in this situation would be how can this decision be challenged by parents and young adults?

If your EHCP was finalized within the last two months you could appeal to the first tier tribunal as stated in “Have you just gone through the EHCP assessment process and the LA have refused to only name your choice of school due to transport costs?

Other possibilities would be asking for your EHCP to be re-assessed or amended giving you the chance to rename the school of your choice in the EHCP and then ask the LA to do a comparison of transport costs. You could write a letter to appeal refusal of transport to the LA directly and follow their appeals process, and ultimately write a complaint to the Local Government Ombudsman if this does not succeed.

You have moved address and the LA have refused to provide transport to the school named in your child’s EHCP as they say that is no longer the nearest suitable school.

This is another common problem and once again the big question is how to challenge this decision. I would suggest that process to challenge the decision should follow similar routes as in the section “Have you already signed a form saying you will pay the transport costs to your choice of school?

 

How can Sentas help?

Sentas is developing template letters to help parents challenge transport decisions, however all circumstances with have their own individual set of circumstances. Sentas is a free advocacy service to help parents challenge LA’s on their refusal to provide SEN Home to School/College transport. Please contact us to discuss your situation:

Email: info@sentas.co.uk

Tel: 07986 768085

http://sentas.co.uk/

 

References

Children’s and Families Act 2014

IPSEA – Dudley Metropolitan Council v Shurvington