Drexler, R (on the application of) v Leicestershire County Council

A local authority may adopt different home-to-school transport arrangements for pupils of different ages where the difference reflects distinct statutory obligations and is objectively justified. Free transport, once provided, falls within the ambit of the right to education under Article 2 of Protocol 1, so Article 14 applies to its provision. A Thlimmenos-type disability claim requires sufficiently similar treatment of materially different groups; it does not create a free-standing positive duty to provide whatever provision would best accommodate disabled pupils. The court also upheld the Council’s compliance with the public-sector equality duty.

The claimant, a severely disabled 17-year-old attending a special school, challenged revisions to the defendant local authority’s home-to-school transport policies. The revised policy generally replaced council-provided transport for pupils aged 16 to 18 with personal transport budgets, reserving transport for exceptional cases. The claimant alleged age and disability discrimination under the Human Rights Act 1998 and failure to comply with the public-sector equality duty under section 149 of the Equality Act 2010.

The issues were whether the discrimination claims were premature, whether the transport arrangements fell within the ambit of Article 2 of Protocol 1 or Article 8, whether the differences in treatment were justified, and whether the Council had complied with its equality duty.

1. Prematurity. The challenge was to the policy adopted by the Cabinet, rather than to the eventual amount of the claimant’s personal transport budget. The claim was therefore not premature. The policy’s discretionary features could be taken into account when assessing legality.
2. Convention ambit. Home-to-school transport is capable of falling within the ambit of Article 2 of Protocol 1. Although that provision does not require free transport, once a local authority provides free transport it must do so without unlawful discrimination contrary to Article 14. The claimant’s circumstances also brought the arrangements within the ambit of Article 8 because withdrawal would directly affect family life.
3. Age discrimination. Pupils aged 5 to 16 were treated more favourably than pupils aged 16 to 18, and age constituted “other status”. Applying the four-stage proportionality structure in Bank Mellat v HM Treasury [2014] AC 700, and the manifestly without reasonable foundation standard applicable to general social and economic policy, the difference was justified. It reflected the statutory transport obligations under the Education Act 1996. The difference between pupils aged 16 to 18 and those within the paragraph 9.3 provision was likewise justified by section 508F(4) of that Act, which required transport for relevant adult learners to be free where transport was necessary to facilitate attendance.
4. Disability discrimination. A Thlimmenos-type claim remains a form of indirect discrimination. It requires sufficiently similar treatment of comparator groups so that a justification inquiry can sensibly be undertaken. It does not impose a free-standing positive obligation to cater for significant differences. The mainstream and SEN policies differed materially: the SEN policy offered transport in exceptional cases and more substantial, generally available payments. There was therefore no sufficiently similar practice capable of constituting indirect discrimination.
5. Public-sector equality duty. The Equality and Human Rights Impact Assessment was imperfect and sometimes insufficiently direct, but it recognised adverse effects on disabled pupils and families, including cost burdens and possible difficulty attending school. The omissions identified by the claimant did not establish a failure to have due regard under section 149(1) of the Equality Act 2010.
6. The application for judicial review was dismissed.

First-instance judicial review proceedings. The application was dismissed by the High Court (Administrative Court).