SEN and transport costs

February 22nd, 2011 by Holly Stout

The Upper Tribunal (Administrative Appeals Chamber) in Dudley MBC v JS [2011] UKUT 67 (AAC) has given a significant judgment in relation to the approach that tribunals and local authorities should take to the long-vexed question of transport costs in the context of SEN appeals relating to Part 4 of a child’s Statement of SEN.

Since the decision of the High Court in R v LB Havering ex p K [1998] ELR 402 and R (M) v Sutton LBC [2007] EWCA Civ 1205 it has become increasingly common for local authorities to compromise with parents over the choice of school for their child by providing in Part 4 that School A is the nearest suitable school for the child, but that the child will attend (the more distant) School B on the condition that the parent pays the transport costs.

This is what had happened in the Dudley case, but the parents had been dissatisfied with the compromise and so appealed to the First-Tier Tribunal (“the FTT”) requesting that only School B be named in Part 4. The FTT upheld the parents’ appeal, holding that although both schools were suitable, the greater expense of providing transport to School B was minimal, and outweighed by the benefits to the child of attending School B. Accordingly, the FTT determined that it was not an inefficient use of resources for School B to be named, even though (it was assumed) if only School B was named in the statement, the authority would have to provide transport to the school in accordance with its duty under s 508B of the Education Act 1996 (“EA 1996”).

The (three-judge) UT upheld the FTT’s decision.

They first noted that although the FTT has no jurisdiction over transport per se (it being non-educational provision), if transport and transport costs are put in issue by the authority in the SEN appeal, the FTT must consider them.

They then considered the scope of the local authority’s duty to provide transport. They concluded that even if School A and School B are suitable, if only School B is named in the Statement, the authority will be under a duty to provide transport under s 508B of the EA 1996 because that duty applies unless the authority has made arrangements for the child to be registered at a suitable school nearer to home. The authority cannot rely on the ‘nearer suitable school’ exception where only School B is named in Part 4 because the authority is required by s 324(5)(a)(i) of the EA 1996 to arrange for the child’s attendance at the school named; it would be incompatible with that duty for the authority to make arrangements for the child to attend a school not named in the Statement.

The UT then set out the approach that the FTT should take to such cases as follows:

(1) The first stage is for the FTT to determine the relative transport costs of the two schools, assuming the authority will have to provide transport to both.

(2) If the FTT determines that the costs of transport to School B is not incompatible with the efficient use of resources, the FTT must name School B in Part 4 (and only School B, even if School A is also suitable).

(3) If the FTT determines that the cost of transport to School B is incompatible with the efficient use of resources then it is not required to specify School B in the Statement and should normally specify School A (although the UT took the, perhaps surprising, view that the FTT still has a residual discretion to name School B in those circumstances in order to give effect to parental preference).

(4) Alternatively, the FTT may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.

This is very helpful guidance from the UT, providing clarity on an area on which there has been much doubt and, as a result, a lack of consistency of approach by authorities and FTTs.

Holly Stout

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