In this Judicial Review case, I acted on a complex transport policy issue for A, a 13-year-old boy in Year 8 with an Education Health and Care Plan (EHCP).
A has a diagnosis of severe haemophilia and cerebral palsy due to a brain injury sustained at birth. A has very significant medical and physical needs and severe learning difficulties, as well as a gastrostomy peg where most of his fluids and medications are given.
A started having epileptic seizures around 10 years ago which are controlled by medication, but he remains at risk of further seizures.
A had recently started a new school placement at an independent special school, on a weekly residential basis. Shortly after this, the Local Authority changed its transport policy to stop allowing transport escorts and passenger assistants (PAs) to administer emergency epilepsy medication to children transported by the Local Authority’s Special Educational Needs (SEN) transport.
The SEN Transport policy for 2019-20, stated that:
“…Passenger assistants are not authorised to administer emergency rescue medication. Emergency services will be called if a pupil has a medical emergency whilst on the vehicle.”
Because of this, in the event that A has an epileptic seizure while travelling on SEN transport to and from school and home, his passenger assistant is not allowed to provide him with his epilepsy medication, Buccollum (midazolam), and instead is expected to wait for emergency services to arrive.
A’s journey to his new school from his home is 60 miles one way and takes 2 hours by school transport via the M25 motorway. A travels by minibus and he is the only child travelling on the minibus, with the driver and a PA. His medication is in the bag to and from school.
His mother was extremely concerned that due to the high volume of traffic on the M25 on Monday mornings and Friday afternoons when he is travelling, emergency services would be unlikely to reach A in a time. It may take at least 30 minutes or longer for an ambulance to arrive.
This would cause significant and harmful delay in providing A with the emergency rescue medication he needs.
A’s Healthcare Protocol for his Buccollam medication states that in the event of an epileptic seizure lasting more than 5 minutes, the medication should be administered.
It was confirmed by A’s consultant paediatrician that the administering of medication should not be delayed for more than 5 minutes as cessation of a seizure as soon as possible is an essential part of management. So it is highly likely that if he were to have a seizure, emergency services won’t arrive in time to administer the medication.
A has had 2 previous seizures that have led him to being in a coma.
A’s mother had tried to resolve the issue via the SEN transport complaint procedure without success. Due to the urgency and imminent danger posed to A, his mother thought it wasn’t appropriate to make an LGO complaint.
So A’s mother approached me to judicially review the Local Authority’s decision and refusal to provide A with a suitably trained escort who could administer his epilepsy medication.
I argued that failing to provide A with passenger assistants who are authorised to administer emergency rescue medication makes the travel arrangements for A unsafe and unsuitable and so unlawful in accordance with Section 508B of the Education Act 1996.
And as A is clearly is a disabled pupil according to the definition set out in Section 6 of the Equality Act 2010, the Local Authority’s implementation of this policy is in breach of this Act.
It was clear that the Local Authority had applied a policy that discriminated against a disabled pupil.
After sending the Letter Before Action, the Local Authority initially failed to respond whatsoever. And then when it did, it refused to back down.
Because of this, we had to get significant additional medical evidence and clarification from A’s epilepsy doctor to show that the transport decision in place was not safe or suitable for A to travel to school.
Limitation was due to expire but we narrowly avoided Court Proceedings when the Local Authority reversed its decision.
A now has a suitably trained PA escorting him on his home to school transport who can administer his emergency and life-saving medication if needed. His mother is relieved that her son now has the support he needs to keep him safe on his journey to and from school.
"I am pleased that with the help of Esther and a pre action judicial review notification, we were able to resolve my son's SEN transport issue of having trained personal assistants on the bus for all his journeys without having to go to court. Esther took the time to listen and understand my concerns and son's needs and it was unfortunate my Local Authority were only more responsive once a solicitor was involved."
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