D v Bedfordshire County Council & Anor

An adjustment to existing home-to-school transport does not become an auxiliary aid or service merely because it requires separate arrangements for one disabled pupil. The statutory character of the function being performed must be identified. Where transport is provided under the Education Act 1996, altering its collection time may fall within the reasonable-adjustments duty under the Disability Discrimination Act 1995. A general transport policy does not by itself justify refusing an adjustment. The authority must assess whether the disabled pupil is placed at a substantial disadvantage, whether the adjustment is reasonable, and whether there is a substantial reason for refusing it in the particular case.

D, a disabled pupil with Asperger’s syndrome, travelled 16 miles to school using shared transport provided by Bedfordshire County Council under section 508B of the Education Act 1996. He wished to attend an after-school technical theatre club. His parents asked the Council either to arrange later transport or reimburse their travel expenses.

The Special Educational Needs and Disability Tribunal rejected the discrimination claim on 9 January 2008. It held that the requested transport was an auxiliary aid or service and, alternatively, that the refusal was justified by the Council’s transport policy and the financial and administrative consequences of departure from it. The central issues were whether the requested change was excluded as an auxiliary aid or service and, if not, whether the refusal was reasonable and justified.

1. Appeal and remittal. The Tribunal erred in law by concluding that the requested adjustment was an auxiliary aid or service. The matter was remitted for reconsideration.
2. The statutory scheme protects disabled pupils against less favourable treatment and against failure to take reasonable steps to prevent substantial disadvantage. The duty applies to an LEA in connection with the discharge of its functions under the Education Act 1996.
3. The Council’s transport arrangements were made pursuant to its section 508B function of securing suitable home-to-school travel to facilitate attendance at the relevant educational establishment. The fact that the same vehicle also transported other pupils did not alter the character of the function as it applied to D.
4. Altering the time at which D was collected on particular afternoons was capable of being an adjustment to an existing transport arrangement. It did not become an auxiliary aid or service merely because the Council might need to provide a taxi or make separate arrangements. The distinction turns on proper analysis of the statutory function and the requested step, not simply on whether something additional is required in practical terms.
5. After-school activities formed part of the educational provision available at the school. The impact of the transport arrangements on D had to be considered. The reasonableness of the adjustment and any justification for refusing it had to be assessed by reference to the particular case. The existence of a well-considered policy did not necessarily constitute a substantial reason. The authority had to consider the consequences of refusal, the reasonableness of the adjustment and whether departure from the policy was substantial in the circumstances.
6. The Tribunal had not considered all relevant facts and had received insufficient assistance on the law. It remained open to the Council to argue on remission that D was not placed at a substantial disadvantage.

• Special Educational Needs and Disability Tribunal: On 9 January 2008, rejected D’s disability-discrimination claim and held that the requested transport was an auxiliary aid or service. It also considered the refusal justified.
• High Court (Administrative Court): Held that the Tribunal had erred in law and remitted the case for reconsideration.