In June 2023, the Department for Education published the long awaited revised school transport guidance, Travel to school for children of compulsory school age: Statutory guidance for local authorities. Cerebra’s Legal Entitlements and Problem-Solving (LEaP) Project team believes that the revised guidance will have a negative impact on disabled children and their families.
(1) Background
Cerebra’s LEaP Project, led by Professor Luke Clements at the University of Leeds, has been providing information and advice for almost a decade to families struggling to get school transport for their disabled children. Our work with individual families led to the publication of our research report, “Local Authority Home to School Online Transport Policies: Accessibility and Accuracy” in July 2017, which highlighted the prevalence of legally inaccurate school transport policies and called for revised government guidance. The report led to discussions with representatives from the Department of Education and a commitment to revising the guidance. Following a public consultation process between July and October 2019, publication of the revised guidance was due in Spring 2020 but delayed indefinitely because of the Covid pandemic. Somewhat out of the blue, the DfE circulated a further revised version in November 2022 and invited ‘voluntary feedback’ from interested parties. Following further amendments in May 2023, the final version, Travel to school for children of compulsory school age, was published on 29 June. The LEaP team has engaged with the process at every stage, providing feedback on the proposed amendments.
(2) Positive developments
The 2023 guidance is certainly more comprehensive and includes several improvements, including:
- clearer explanations of the categories of children who are eligible for transport
- examples of children who have developmental disabilities, as well as physical disabilities
- reference to local authorities’ obligations under the Equality Act 2010
- clarification that the school named in a child’s EHC plan will be their nearest suitable school for school travel purposes (and a clearer explanation of the legal test that local authorities should apply when determining whether or not they are obliged to pay for transport to a parent’s choice of school)[1]
- confirmation that eligibility for Disability Living Allowance or access to a Motability vehicle does not disqualify a child from receiving free travel to school
- a school transport policy checklist (although the model policy included in earlier drafts has unfortunately been dropped)
However, the LEaP team has serious concerns about how other changes to the guidance will affect disabled children and their families.
(3) The law on school transport
It’s important to note that the law underpinning the provision of school transport has not changed at all. Local authorities have a legal duty[2] to make school transport arrangements for ‘eligible’ children, which includes children who cannot reasonably be expected to walk to school because of their special educational needs, disability or mobility problems. The guidance does not change this legal duty.
(4) The 2014 Guidance
Before Travel to school for children of compulsory school age was published in June 2023, local authorities could refer to the 2014 version of the guidance[3] for advice on how to decide when a child was eligible for free school transport because of their SEN or disability.
The 2014 guidance[4] effectively set out the following three stage test[5] for deciding whether children who lived within walking distance of their school were eligible for transport because of their SEN or disability:
- could the child reasonably be expected to walk to school alone?
- could the child reasonably be expected to walk to school if accompanied? and
- could the child’s parent reasonably be expected to accompany him on the walk to school, taking into account a “range of factors” including the child’s age and “whether one would ordinarily expect a child of that age to be accompanied”?
The guidance also expected a child to be accompanied by a parent where necessary, unless there was a “good reason” why it was not reasonable to expect the parent to do so.
Various Local Government Ombudsman decisions confirmed that the 2014 guidance required councils to:
- correctly consider whether it was reasonable for a parent to accompany a child and not assume that children with SEN would be accompanied[6]
- apply the correct test for considering eligibility on SEN grounds, which was one of reasonableness, not ‘exceptionality’[7]
- consider at what age would it usually expect a child to be able to independently travel the route concerned and consider whether, if parents of other children the same age would not have to accompany their children, it was reasonable to ask a parent of a child with SEN/mobility needs to do so and give a rationale for its decision[8]
- consider a child’s age in order to take account of the disproportionate impact on parents of children with SEN who needed to be accompanied to a much higher age[9]
- only consider people with parental responsibility as being available to escort a child[10]
Blanket policies which required pupils of all ages to be accompanied were not compatible with the 2014 guidance, because local authorities were specifically required to take into account the age of a child who had SEN or a disability.[11]
As such, the 2014 guidance was clear that:
- only a parent could be expected to accompany their child
- a parent could only be expected to accompany a child to the extent that it was age appropriate, and
- local authorities had to consider whether there was a good reason why it was not reasonable to expect a parent to accompany their child, taking into account a range of factors, which could include work commitments and caring responsibilities[12]
(5) The 2023 guidance – shifting the responsibility to parents of disabled children
The LEaP team’s main concern is that the following changes to the guidance on accompaniment (paragraphs 47-52) demonstrate a marked shift towards making parents responsible for meeting the disability-related needs of their children:
(i) Expecting parents to accompany children of all ages
In contrast to the 2014 guidance, the revised guidance does not require local authorities to consider a child’s age or the age appropriateness of accompanying a child. Accompaniment is treated as a matter of ordinary parental responsibility. Essentially the guidance says that the daily pressures of fitting work and family commitments around the school run apply to all parents in the same way and it’s up to parents to ‘fulfil their various responsibilities’[13].
We don’t dispute that parents may be expected to accompany their child to and from school where it’s age appropriate, whether the child has a disability or not. But the pressures on parents of disabled children are different because their children will need to be accompanied to a much higher age than their non-disabled peers. This shift towards expecting parents to accompany all children, with no regard for a child’s age, will therefore have a disproportionate and discriminatory impact on parents of disabled children. It demonstrates a marked failure to understand the very well-documented inequalities faced by parents of disabled children in terms of income, employment, health, well-being and more.[14]
In particular, it seems likely that employment opportunities for parents of disabled children, and predominantly mothers, will be adversely affected. We hear from parents who have had to reduce their working hours or consider giving up work altogether simply to be make themselves available for the school run. In its response to the 2019 consultation, the Ombudsman’s office shared our concerns about securing the rights of children with disabilities and their parents and the “undue pressure on parents to accompany their children to school which disproportionately affects children with SEND.”[15]
A parent’s responsibility to accompany a child should be determined by the child’s age, not his or her disability. In our view, expecting parents to accompany disabled children of all ages breaches the prohibition on disability discrimination in the Equality Act 2010. Infantilising disabled young people by expecting their parents to accompany them, whatever their age, amounts to indirect (and arguably direct) disability discrimination and requiring parents to act as escorts in these circumstances constitutes direct discrimination by association. The opening pages of the guidance say that the Equality Act is likely to be ‘particularly relevant’ when local authorities are deciding whether it’s reasonable to expect a parent to accompany their child, but there’s no cross-reference in the body of the guidance itself, only a vague suggestion that local authorities should be ‘sensitive to the particular challenges’ faced by parents of disabled children.[16]
Having brought this issue to the attention of the Department for Education, we asked to see its Equality Impact Assessment (EIA). We were sent a version which had been revised in July 2023, after the publication of the guidance on 29 June. It appears that the initial assessment (i.e. the one completed prior to the publication of the guidance) failed to address the serious question of the guidance’s adverse impact on parents of disabled children and was subsequently amended when this issue was drawn to the Department’s attention. The revised EIA accepts the likelihood of an adverse impact of this kind and states that it is ‘proportionate and justifiable’ but fails to provide cogent evidence in support of the assertion, calling into question the rigour of the EIA.
We believe that treating parents of disabled children in the same way as all other parents may also infringe the prohibition on disability discrimination in the Human Rights Act, which requires public bodies to treat differently persons whose circumstances are significantly different.[17] Failure to ensure that disabled children have access to adequate school transport has also been held to infringe a child’s right to an education under the Human Rights Act[18].
(ii) Raising the threshold for whether it’s reasonable to expect a parent to accompany a child
The 2014 guidance expressly required local authorities to consider whether it was reasonable to expect a parent to accompany a child.[19]
This requirement has been watered down significantly in the new guidance, which now says that ‘in most cases, local authorities will not need to consider whether a parent would be able to accompany their child’[20]. So, the default position appears to be that local authorities can assume that parents are available when they receive a transport application.
The reasonableness test hasn’t disappeared altogether and, if a parent can produce ‘good’ reasons for being unable to accompany their child, local authorities will still have to consider whether it’s reasonable to expect the parent to accompany the child[21]. The guidance says that local authorities must not have a ‘blanket policy’ of refusing transport for children who could walk if accompanied – they must always consider a parent’s reasons for being unable to accompany a child and make decisions based on the circumstances of each case. The problem is that the guidance has seriously limited what constitutes a ‘good’ reason. There is a new presumption that work commitments, caring responsibilities or taking other children to different schools will not ‘normally’ be considered good reasons for being unable to accompany a child. While the word ‘normally’ allows for flexibility in principle, we have already seen in practice that local authorities are adopting a fixed approach[22].
In order to rebut this presumption, it seems that parents will now have to demonstrate that they have exceptionally good reasons why they can’t accompany a child. We think this strays from the ‘reasonableness’ test set out in case-law[23] and earlier guidance[24] and will disproportionately disadvantage disabled children and their families.
(iii) Expecting parents to make ‘other suitable arrangements’
The guidance expects parents not only to accompany disabled children of all ages on the walk to school, but also to ‘make other suitable arrangements for their journey to school’[25].
It’s not clear what ‘other suitable arrangements’ means. Earlier drafts of the guidance contained examples, such as ‘dropping’ a child off at a breakfast club or ‘arranging a lift’ with a friend, which suggested that parents would be required to drive their children to school or arrange car journeys with others. These examples were subsequently dropped and the final guidance doesn’t define ‘other suitable arrangements’ at all.
Once it has been decided that a child isn’t eligible for transport, then it’ s obviously up to their parents to decide how to take them to school – there’s no expectation that all children must walk to school. But the problem here is that the guidance has made the availability of ‘other arrangements’ part of the eligibility decision itself – i.e. local authorities can now consider whether a parent can accompany or make ‘other arrangements’ for a child before deciding whether the child is eligible. In our view, this is inconsistent with the law on school transport[26], which refers only to ‘walking’ routes and does not provide any legal basis for expecting a parent to drive a child who needs to be accompanied to school. Explanatory notes to the school transport legislation state that:
“a local education authority cannot conclude that, merely because a parent has a car and could drive his or her child to school, the local education authority will not be under a duty to make arrangements..”[27]
We also believe that placing the onus on parents to ‘make other suitable arrangements’ is inconsistent with the Equality Act 2010 as it will have a disproportionate impact on disabled children, who are more likely to need support to travel to school. Relatives and friends may not have the time, commitment or skills needed to support a disabled child on the journey to school. Breakfast clubs may be unaffordable or unable to meet a child’s needs.
(6) What does this all mean in practice?
Our LEaP team is starting to hear from parents whose transport applications have been considered under the revised guidance. As we suspected, local authorities are refusing transport and expecting parents to accompany, or make other arrangements for disabled children of all ages, with no regard for any work, family or care arrangements. Some of the comments we’ve seen include:
- Managers wanted me to re-emphasise that we cannot take any parental working arrangements into consideration when assessing eligibility for SEND Transport.
- Our service is not designed to be an extension of private childcare arrangements or as a replacement for other support which young people may need from their parents.
- unfortunately we are not able to take family circumstances into account when determining eligibility e.g. family working or other care arrangements.
- the Council considered whether the action required to get your child to school would be in line with what would be expected of any parent. In this case we believe that there are no exceptional circumstances.
Online application forms are not giving parents an adequate opportunity to explain their reasons for being unable to accompany a child, which means that more families are likely to be refused transport at the application stage, making it necessary for parents to appeal to show that they have (exceptionally) good reasons. In our experience, councils tend to uphold initial decisions on appeal, so parents are likely to have to make a complaint to the Ombudsman’s office, which can be a lengthy process. Not every parent will have the resources to appeal.
(7) Conclusion
The new guidance places the onus on parents to accompany children of all ages to school, and introduces a new presumption that work, caring or family commitments will not normally be considered good reasons for being unable to accompany a disabled child. The guidance also introduces the idea of parents having to make ‘other suitable arrangements’ for their child’s journey to school.
We believe that these changes to the revised guidance will have a disproportionate and discriminatory impact on children with disabilities, because they enable local authorities to shift the responsibility for meeting disability-related travel needs to parents and the wider community, with the effect that children who have a legal entitlement to school transport will be prevented from accessing it.
In our view, the guidance on accompaniment requires urgent review in order to uphold local authorities’ statutory duties under the Education Act 1996 and the Equality Act 2010, and to protect the rights of disabled children and their parents.
Carys Hughes
Cerebra LEaP Project Co-ordinator
27 October 2023
[1] As set out in Dudley Metropolitan Borough Council v Shurvinton & Others [2012] EWCA Civ 346
[2] Section 508B and Schedule 35B of the Education Act 1996
[3] Department for Education, Home to school travel and transport guidance: Statutory guidance for local authorities (July 2014)
[4] Department for Education, Home to school travel and transport guidance: Statutory guidance for local authorities (July 2014), paragraph 17
[5] As set out on page 12 of the Local Government Ombudsman’s Focus Report, ‘All on board? Navigating school transport issues’ (March 2017) https://www.lgo.org.uk/information-centre/reports/focus-reports
[6] Warwickshire County Council (20 003 318) paras 28-31
[7] London Borough of Bexley (18 010 993) para 47
[8] London Borough of Lambeth (18 008 409) para 31
[9] London Borough of Bexley (18 010 993) para 69
[10] Nottingham City Council (18 018 188) para 78
[11] London Borough of Lambeth (18 008 409) para 31 and London Borough of Bexley (18 010 993) para 69
[12] London Borough of Lambeth (18 008 409), para 33 and Suffolk County Council (20 010 169), para 46-51
[13] Department for Education, Travel to school for children of compulsory school age: Statutory guidance for local authorities, (June 2023), para 50
[14] See for example Contact’s various research reports at https://contact.org.uk/help-for-families/campaigns-and-research/research/
[15] See Ombudsman’s response to the consultation on home to school travel and transport, p10, 29 October 2019
[16] Department for Education, Travel to school for children of compulsory school age: Statutory guidance for local authorities, (June 2023), para 52
[17] See for example Thlimmenos v Greece (2001) 31 EHRR 15 and Gorry v. Wiltshire Council and others [2012] EWCA Civ 629.
[18] Article 2 of the First Protocol, incorporated in the First Schedule to the Act, provides that ‘No person shall be denied the right to education’. See Luke Clements, ‘School transport as a human right’ (2 April 2023) https://www.lukeclements.co.uk/school-transport-as-a-human-right/#_ftn2 accessed 8 September 2023.
[19] Department for Education, Home to school travel and transport guidance: Statutory guidance for local authorities (July 2014), para 17
[20] Department for Education, Travel to school for children of compulsory school age: Statutory guidance for local authorities, (June 2023), para 48
[21] See the more oblique references to the reasonableness test on page 8 (‘public sector equality duty’) and in paragraph 52 of the 2023 guidance
[22] See section entitled ‘What does this all mean in practice?’
[23] See R v Devon County Council ex p George [1989] AC 573, which held that a local authority was entitled to consider whether it was ‘reasonably practicable’ for a child to be accompanied and which was cited in R. (on the application of M) v Hounslow LBC [2013] EWHC 579 (Admin)
[24] See Department for Education, Consultation on home to school travel and transport guidance: Government response (July 2014), para 52, which explained that the 2014 guidance would require local authorities to consider whether it was ‘reasonably practicable’ for a parent to accompany their child.
[25] See paragraphs 47, 48, 49 and the example of Child Q on page 21 of the guidance.
[26] Section 508B and Schedule 35B of the Education Act 1996
[27] Explanatory notes to the Education and Inspections Act 2006, para 353 (which inserted school transport provisions into the Education Act 1996)
