Staffordshire County Council v JM

Home-to-school transport is distinct from both a special educational need and special educational provision. It cannot be incorporated into an EHC Plan as educational provision merely because transport is needed to access a programme or because the young person’s circumstances are exceptional.

For an adult learner with an EHC Plan, Education Act 1996 section 508F imposes a duty to make free transport arrangements only where the local authority considers them necessary. That judgment must be exercised judiciously and in good faith. A First-tier Tribunal has no jurisdiction under the EHC Plan appeal provisions to determine a transport funding decision. Statutory guidance cannot enlarge that jurisdiction or displace the statutory transport regime.

H was a 21-year-old young person for whom the local authority maintained an EHC Plan. The named institution was distant from her home. Her parents contended that her vulnerabilities and their health problems made funded accompanied transport necessary.

The First-tier Tribunal treated transport as both a special educational need and special educational provision, and required the local authority to provide it. The local authority appealed with the Tribunal’s permission. The Upper Tribunal considered whether transport could be included in the EHC Plan as educational provision, the scope of the authority’s duty under Education Act 1996 section 508F, and whether the First-tier Tribunal had jurisdiction to order transport funding.

1. Appeal allowed. The First-tier Tribunal made errors of law. Its decision was set aside and remade. The EHC Plan was to be amended to remove references to transport needs, transport provision, and any obligation on the local authority to arrange or fund H’s transport.

2. Under the Children and Families Act 2014, a special educational need must arise from a learning difficulty or disability that calls for special educational provision. Special educational provision is educational or training provision additional to or different from that generally made for comparable persons. Home-to-school transport is instead the means of accessing education. It is neither a special educational need nor special educational provision: paras [23]-[27].

3. The fact that transport may be relevant when choosing an appropriate placement does not alter that distinction. In this case, the choice of institution was not in issue: para [25].

4. Section 508F of the Education Act 1996 required the local authority to make transport arrangements for a relevant adult only if it considered them necessary. This was not an unfettered discretion. The authority had to make that assessment judiciously, in good faith, and having regard to relevant circumstances. If arrangements were necessary, transport had to be free. If they were not necessary, section 508F(8) left a residual discretion to contribute to reasonable travelling expenses: paras [35]-[37].

5. The First-tier Tribunal’s appeal jurisdiction under the EHC Plan legislation extended to specified educational matters and the naming of an institution. It did not extend to a transport-funding decision under section 508F. Such a decision could instead be challenged by judicial review: paras [31]-[33], [41].

6. Paragraph 9.215 of the SEN Code could not create a free-standing exceptional-circumstances route for including transport in an EHC Plan. A tribunal must apply Parliament’s legislation where guidance conflicts with it: paras [39]-[41].

• Upper Tribunal (Administrative Appeals Chamber): allowed the local authority’s appeal and set aside and remade the First-tier Tribunal decision: [2016] UKUT 246 (AAC).
• First-tier Tribunal (SEND): on 10 September 2015, treated transport as a special educational need and special educational provision, and required transport provision. Its decision was stayed pending appeal.