Successfully Getting Transport Provisions For Children With SEN
The Law Of… Securing Transport For Children With SEN
In the case of Staffordshire County Council v JM  UKUT 0246 (AAC), it was established that home to school transport is not a special educational need (SEN) nor can it be a special educational provision.
But Samantha Hale, Associate Solicitor in Education and Community Care at Simpson Millar, and Louise Price, Barrister at Doughty Street Chambers, have been successful in an appeal to the Upper Tribunal against the application of the Staffordshire case by the First-tier Tribunal, in the case of AA v LBH  UKUT 0241 (AAC), which is available here.
Background To The Case
In the case of AA v LBH, the parents appealed to the First-tier Tribunal (Special Educational Needs and Disability) against Sections B and F of their son's – referred to as 'Adam' in this decision – Education, Health and Care Plan (EHCP). The amendments they requested included recording their child’s special educational needs in relation to transport and the provision required to meet these needs.
"The Tribunal prevented me from making submissions on these points as it concluded that it was not within their jurisdiction to consider transport in accordance with the Staffordshire case", Samantha explains.
Permission To Appeal To The Upper Tribunal
Both Samantha and Louise represented the parents pro bono so their case could be appealed to the Upper Tribunal. Initially, the First-tier Tribunal refused to give them permission to appeal, but the Upper Tribunal granted them permission to appeal as:
"It is arguable that the effect of the decision in Staffordshire  UKUT 0246 (AAC) was wrongly understood and applied. That case dealt with adults. The Upper Tribunal should consider the position in relation to children."
Appealing To The Upper Tribunal
As part of the appeal, the Upper Tribunal helpfully confirms in relation to the Staffordshire case that:
"It is important to note that Staffordshire concerned an adult (age 21 at the time of the Upper Tribunal decision) and that section 508F of the Education Act 1996, which was considered in that decision, applied only to those over 19. The decision of the Upper Tribunal was that there could be no jurisdiction in such a case in the First-tier Tribunal. That decision was not about the case of a child and is not authority (nor does it claim to be) in respect of a child of Adam's age."
In relation to the Staffordshire case, the Upper Tribunal said:
"They do not go into jurisdiction. I am unaware of any authority that states in terms that as a matter of law transport needs can never constitute a special educational need and that measures to deal with them can never in any circumstances whatsoever be specified in the plan (or in the forerunner statements of a special educational need)."
After considering the case, the Upper Tribunal concluded that:
"The First-tier Tribunal was in error of law in stating that it had no jurisdiction to consider transport matters in this context and was in breach of the rules of natural justice and fair procedure in refusing to hear argument on this from the appellant's legal representative."
Why Is This Case Important And How Can Simpson Millar's Education Team Help Me?
"This case is important not only for Adam's parents, but for all parents who have a child with special educational needs who may require a provision of home to school transport", Samantha comments.
"Those parents now have the right to make submissions in the First-tier Tribunal as to how home to school transport could amount to a special educational need requiring special education provision."
"This will need to be determined on an individual basis by the First-tier Tribunal as to whether or not they include this in an EHCP or a Statement of SEN. I envisage that the First-tier Tribunal will only do this in exceptional circumstances, so I recommend parents seek advice from our Education team first."
"We're experienced in dealing with SEND Tribunal cases and can advise you on the best course of action."