Inclusion Now 52

Legal Question

“I have two disabled children. Both have a diagnosis of autistic spectrum disorder and have an EHCP. Neither can manage public transport. One attends a mainstream school and the other is at a special school. The local authority have said that we can only have transport for the child who is in special school. How can they justify this and how can I challenge it?”

Children attending schools in England and Wales may be able to get free transport to school, depending on how far they live from their nearest school and also whether they have special needs and if so, what those needs are.

All children between 5 and 16 qualify for free school transport if they go to their nearest suitable school and live at least:

  • 2 miles from the school if they’re under 8
  • 3 miles from the school if they’re 8 or older

The above distance criteria does not apply to children with special educational needs. They are entitled to transport if they cannot reasonably be expected to walk. This includes by reason of mobility difficulties such as them being wheelchair bound but also other needs. Something we do see in situations like this is children with autistic spectrum disorder who do not have physical needs but cannot use public transport and/or travel at peak times because of various reasons including a lack of awareness of danger, challenging behaviour and/or sensory difficulties. In such cases, Local Authorities should be providing transport. There is no distinction between whether a child attends a special school or a mainstream school in law. The key question is whether they can be reasonably expected to walk.

Different rules apply to those under 5 and over 16 years old and we would recommend securing advice on an individual basis for children outside of compulsory school age as the situation is complex and often highly dependent upon the facts.

How to challenge

All Local Authorities must have their own appeals processes in place which parents can follow if their child is refused school transport. This is often a two stage process. Your Local Authority should provide you with details of this process in any decision letter refusing transport. This is a process for which legal advice can be helpful. Should such an appeal not resolve matters, there may be further challenge. This would often be by way of judicial review proceedings for breach of the Local Authority’s duty to provide transport to those who should be considered eligible in accordance with legal provisions contained within the Education Act and the relevant statutory guidance (Home-to-school travel and transport).

Legal aid is still available for judicial review proceedings, and assessment for these types of cases is based on the child’s finances rather than that of the parent. If judicial review is appropriate, action must be taken quickly and it is therefore important for parents to contact a solicitor as soon as possible for advice.

Sarah Woosey

Partner with Simpson Millar specialising in education and community care law.