S, R (on the application of) v Education (Waltham Forest)

The statutory regime for sixth-form-age children does not impose an absolute duty on a local education authority to provide physical transport, including for children with special educational needs. The authority may provide transport assistance or financial assistance, provided its policy complies with Education Act 1996, sections 509AA and 509AB.

Parents may reasonably be expected to assist, but there is no absolute rule that they must drive a child to school. The appropriate form of assistance is fact-sensitive and must be assessed fairly, with regard to the child’s needs, the effect on the parent, practicability, cost and available alternatives.

The claimant, a severely autistic child of sixth-form age, challenged the defendants’ decision to replace previously provided school transport with a mileage allowance for his mother to drive him to school.

He alleged that the decision was substantively unreasonable and procedurally unfair. The defendants’ policy provided for a range of transport assistance, including parental reimbursement, and treated physical transport as a last resort. The central issues were whether that statutory and policy framework permitted the proposed assistance, whether the decision-making process was fair, and what relief should follow.

1. Statutory framework. Sections 509AA and 509AB of the Education Act 1996, as amended, govern children of sixth-form age. Unlike the former regime under section 509, they do not impose an absolute duty to provide transport. The authority must make and publish arrangements for facilitating attendance by transport or otherwise, and for financial assistance, having regard to matters including practicability, choice, distance and cost.
2. Policy. The defendants’ policy lawfully permitted transport assistance in forms including passes, escorts, shared transport and reimbursement of parental mileage. Physical transport, particularly a dedicated vehicle, was reserved for cases where other assistance was inappropriate. There was no absolute rule that parents of children over 16 who could not travel alone had to drive them; what could reasonably be expected depended on the circumstances.
3. Procedural fairness. The decision to replace an apparent offer of shared transport with parental reimbursement was based partly on a mistaken understanding that the parents had rejected shared transport. The radical change was made without adequate notice or consultation. The appeal was also unfair because the parents were not shown the defendants’ written submission or given an opportunity to respond to material concerning an incident relied upon by the panel.
4. Reconsideration. The defendants were required to reconsider the form of assistance with an open mind and reliable evidence. Relevant matters included the effect on the mother, the effect on the child, cost, and whether escorted shared transport was practicable and safe. The considerations were not exhaustive.
5. Relief. The defendants undertook to accept a fresh application and to disclose material used on any appeal. In light of that undertaking, the court made no formal declaration or quashing order and made no order on the application or costs. Permission to appeal was refused.

This was a first-instance judicial review. Permission to appeal was refused because no arguable hard-edged point of law with a reasonable prospect of success was identified.