After successfully helping a family secure home to school transport for their child with special educational needs (SEN), Samantha Hale, Associate Solicitor in Education and Community Care, from Simpson Millar answers key questions about what this outcome means for other families.
What Did The Case Cover?
Unhappy with their child’s Education, Health and Care Plan (EHCP), one family decided to appeal against Sections B and F to the First-tier Tribunal (Special Educational Needs and Disability).
They requested specific changes to their son’s EHCP. This included recording that their son, known as ‘Adam’, required home to school transport due to his special educational needs, as well as stating what provision was needed to meet his needs.
But, the Tribunal refused to hear the submissions on transport, concluding it was not within its jurisdiction because of the Staffordshire  UKUT 0246 (AAC) case.
What Did The Upper Tribunal Decide?
The Upper Tribunal found that the Staffordshire case is not a legal authority in respect of a child of Adam’s age, who is of compulsory school age.
It helpfully concluded that there is no legal authority that states transport needs can’t be a special educational need or a special educational provision. The Upper Tribunal also held that the First-tier Tribunal was wrong to conclude it had no jurisdiction to hear submissions on transport.
Why Is This Case Important?
This case is important because it confirms the First-tier Tribunal must hear submissions on home to school transport for a child of compulsory school age, and how it could amount to a special educational need requiring special education provision.
It can also be recorded in Sections B and F of an EHCP and in Parts 2 and 3 of a Statement of SEN. But keep in mind that just because the First-tier Tribunal has the power to do this, it does not mean that every child who receives home to school transport will have it recorded in their EHCP/Statement of SEN.
Why Can’t Every Child Have Home To School Transport Recorded In Their EHCP/Statement Of SEN?
Whether or not transport provisions for children with SEN are included in a Statement of SEN or EHCP is decided on an individual basis by the Local Authority (LA) or by the First-tier Tribunal if you’ve made an appeal.
Ideally, they should both base their decisions on whether or not it amounts to a special educational need and special educational provision.
But, in a lot of cases where a child has received home to school transport the LA or Tribunal will not conclude that it is a special educational provision.
It’s therefore likely to only be in exceptional cases in which the tests for this, which are set out in the Children and Families Act 2014, can be satisfied and it will be recorded in Sections B and F of an EHCP or the Education Act 1996 in relation to Parts 2 and 3 of a Statement of SEN.
Should I Ask For Home To School Transport To Be Recorded In My Child’s EHCP or Statement Of SEN?
If you believe that home to school transport is needed for your child due to their SEN, you should request that it’s recorded in Sections B and F of their EHCP or Parts 2 and 3 of their Statement of SEN.I also recommend that you ask for this to be recorded as a special educational provision in Section F or Part 3, if Section B or Part 2 includes a description of transport difficulties, as provision should be recorded to meet the need described.
If you’re unsure about whether you can ask for a transport provision and need some advice, you can contact SENTAS, who will also be able to refer you to Simpson Millar’s Education Law team.
How Can Simpson Millar’s Education Law Team Help My Child?
For many families, having home to school transport is key to ensuring that their child with SEN is able to travel to and from school safely, with the right support in place.
If you’d like to request transport for your child or would like to appeal against a decision made about transport for them, one of our specialist Education Law solicitors will be happy to speak to you.