School transport judgment arrives

April 9th, 2015

Back in December 2014, my colleague Paul Greatorex did a brief post about the decision of the High Court in the school transport case of PP v East Sussex CC, albeit a transcript of the judgment was not available at that time.  A transcript has now appeared on Lawtel, apparently without any prior notification to the parties.  It is not yet available on BAILII but a copy is available here: P v East Sussex CC [2014] EWHC 4634.

The claim was brought by a 15-year-old school girl with a range of medical problems and a statement of special educational needs which named an independent school 27 miles from her home.  The local authority accepted that she was an eligible child entitled to free school transport under section 508B of the Education Act 1996, which duty it discharged by providing a taxi service shared with other pupils.  That service took her to and from school at the beginning and end of the normal school day.  She asked for this arrangement to be varied in two respects: (1) to take her from home to school later than usual when she arrived back there from the frequent medical appointments she required, and (2) to take her from school to home later than usual on certain days to enable her to attend after-school clubs.

The Council refused to do this relying amongst other things on the practical difficulties and extra cost that would be involved in making such arrangements.  That decision was challenged by way of judicial review on the grounds that it amounted to: (1) a breach of section 508B, and (2) a breach of the Council’s duty to make reasonable adjustments under the Equality Act 2010, and (3) a breach of the public sector equality duty in section 149 of the 2010 Act.  All three grounds were rejected.

In relation to section 508B, the judge held that there were three relevant aspects to that duty: (i) the travel to be provided is such travel arrangements as the authority consider necessary, (ii) the authority should consider it necessary in order to secure suitable home to school travel, and (iii) this is for the purpose of facilitating the child’s attendance at her school: see [39]-[41].  The judge said that “school” has a temporal as well as a physical aspect and that the legislation is directed at facilitating attendance for the normal compulsory school day: see [50]-[52].  “After school activities” were just that: activities after school: see [66].

The judge went on to hold at [58] that when determining what travel arrangements they consider necessary, a local authority can take account of cost and practicability and that the duty did not impose a “counsel of absolute perfection”, nor “a requirement that the claimant be provided with a chauffeur” nor was it “a duty which stands to be exercised on a kind of a perpetual stand-by basis, that is to say, to be available at various times to suit medical appointments”, nor could the local authority be put in breach of duty by the actions of a third party in the way that party facilitates its medical appointments: see [59], [62] and [63].  The only purpose of the duty was to facilitate attendance at school and not, for example, to facilitate attendance at medical appointments: see [58] and [62].

In relation to the claim based on section 20 of the Equality Act, the judge said that it was very difficult to see how on the fact of that section such a claim could be sustained: see [71].  He pointed out at [73-74] and [77] that the “service” or “function” in question was transport, not education, there was no complaint about that such as the size of the vehicle or its suitability for the claimant, and no disadvantage.  Rather the complaint was about her distance from school and this was really a complaint about the adequacy of local education provision rather than about provision of transport: see [77].

It had been argued by the local authority that this challenge should also fail on the ground that it should have been brought in the county court under section 114.  The judge did not rely on this point but did observe at [80] that whilst raising Equality Act provisions in a judicial review claim was not barred (see section 113(3)(a)), “that does not lead to a proposition that a claimant is best advised to bring an Equality Act claim by way of judicial review. I suspect in most cases that he is not.”

Finally, the claim under section 149 of the 2010 Act was dismissed on the facts of the case, the judge holding that the decision letter (which had explicitly adverted to this duty and tried to explain how it had been complied with) did not amount to lip service but showed a genuine desire and attempt to engage with the requirements of that section: see [99].

The local authority was represented by Paul Greatorex.
Jonathan Moffett

Comments are closed.