Staffordshire County Council v JM

The parties were informed of my decision by a notice dated 22 April 2016. I apologise for the delay in issuing these reasons.

The appellant Local Authority brings this appeal with the permission of the F-tT. I heard the matter at Bennett House, Stoke on Trent, on 8^th February 2016. The Local Authority was represented by Mr James Goudie, QC. Their solicitor, Mr Darville, attended the hearing as did Mr Marsden of the Local Authority. The respondents, Mr and Mrs M (‘the parents) attended the hearing but their daughter H, who is the subject of this appeal, was not present. Mr M represented the family. The parents’ MP, Mr Jeremy Lefroy, attended the morning session of the hearing.

The issues before the Upper Tribunal are (i) whether the cost of transport to and from the place of education specified in an Education, Health and Care Plan (‘EHCP’) is either a special educational need or special educational provision for the purposes of the Children and Families Act 2014; (ii) whether a Local Authority has any duty under section 508F of the Education Act 1996 to pay transportation costs to facilitate attendance at further education of an adult learner over the age of 19 but under 25 years of age who has an EHC Plan; and (iii) whether the F-tT had any jurisdiction to order a Local Authority to pay for transportation costs which it had refused, as a matter of its discretion, to pay.

The errors made by the F-tT under ground (i) are immaterial if the F-tT had no jurisdiction to deal with the Local Authority’s decision on transport costs

H is now 21 years old and lives with her parents. The Local Authority maintains an EHC Plan for her, and only one institution is named in the EHC Plan. That institution is rather distant from H’s home, and the transportation costs to and from home are at the heart of this appeal.

The Local Authority took the view that, because of H’s age, they did not have an absolute duty to make and pay for H’s travel to and from school. They only had to do so if they considered it to be necessary (section 508F, Education Act 1996 as amended by the Children and Families Act 2014). The Local Authority asked the parents repeatedly to provide the necessary information so that they could come to a conclusion on this issue, but Mr M was not cooperative. He considered their requests unnecessary and intrusive. In his view, the Local Authority either had the information already or could find it out themselves.

Over time, quite a lot of the information required had slowly come to light. It was also clear from a letter from the Local Authority to Mr M that he produced at the hearing that the Local Authority required very little further information. Mr M was adamant that he would not provide this information without my personal assurance that no more questions would be asked of him. That, of course, is not an assurance I could give.

H’s parents believe that the Local Authority should be responsible for transport costs to and from the institution. They maintain that (i) H cannot take public transport to and from the institution; (ii) they cannot provide transportation for H reliably because of their own health problems; and (iii) if H is transported to and from the institution by third parties, such as a taxi service, she must be accompanied by a female attendant because of her peculiar vulnerabilities. H’s needs were exceptional, they argued. They sought to rely on paragraph 9.215 of the SEN Code of Practice 2014 as requiring the Local Authority to arrange and pay for transport for a person in H’s circumstances.

The Local Authority’s case to the F-tT was that the provision of transport for a young person in H’s position depended on its transport policies. There was one for those of statutory school age, another for young people between 16 and 19, and a third for those between the ages of 19 and 25. For those in the last category, the requirement to provide transportation depended on whether, in their view, it was necessary to do so. This is a result of section 508F of the Education Act 1996. This is not exactly what the section says, as I discuss later, but at the Upper Tribunal the section was fleshed out properly.

I mean no discourtesy to Mr Goudie’s very detailed submissions on the law by paring them down as follows. Nor do I mean any discourtesy to Mr and Mrs M by giving only the essentials of their daughter’s problems which do not help me with the points of law I have to decide.

It should be said that the F-tT went to great lengths to try to end the stalemate between the parties. It recognised that the EHC Plan was still only in draft form. Given that finding, it is not clear that there was anything capable of being appealed under section 51(2)(c) of the CFA 2014, since section 51(3) only allows an appeal under that subparagraph when an EHC Plan is finalised, or following an amendment or replacement:

This particular jurisdictional point was not expanded before me and I leave it aside.

The F-tT accepted that the Local Authority was entitled to have a policy for post-19 year old pupils and that they were entitled to ask for information [31]. It took the view, however, the building H’s independence required a carefully graded programme at the college, that provision of transportation provision of that programme required provision of transportation to access it, and that this amounted to a form of provision for H’s special educational needs. The F-tT also found that H’s needs were exceptional and that it was accordingly a special educational need. It seems, therefore, that the F-tT considered it both a special educational needs and special educational provision. By taking this approach, the F-tT thought, perhaps, that it would outflank section 508. This was a bold solution in light of authorities that establish that home to school transport is neither special educational needs nor special educational provision.

The Local Authority was given permission to appeal against this decision by the F-tT, which also stayed the order requiring the Local Authority to provide transport.

Issue 1: Is transport to and from the place of education specified in an Education, Health and Care Plan (‘EHCP’) for an adult learner with special educational needs either a special educational need or special educational provision?

The Children and Families Act 2014 (CFA 2014) requires Local Authorities to make special educational provision for children and young people with special educational needs [or disabilities]. I shall refer to these as special educational needs for convenience. Provision is now made through an EHC Plan instead of a Statement of Special Educational Needs, though it will be some time before all Statements of Special Educational Needs are replaced by EHC Plans.

The CFA 2014 defines a young person as a person over compulsory school age (16 and over to 25 (section 83)). The 16 to 25 age range is subdivided for various purposes. Young persons who are over compulsory school age but under the age of 19 are treated differently from those in the post-19 group. For the latter, a Local Authority’s duty to provide education or training is limited to those for whom an EHC Plan is maintained: section 15ZA, Education Act 1996. The post-19 group is, as we shall see, also treated differently in respect of transportation to and from their institution or place of education (‘home to school transport’, for ease of reference).

the locations and times at which the education or training is provided.

The Education Act 1996 as amended by the CFA 2014 contains the bulk of law applicable to educational matters relating to those with special educational needs and disabilities. In order to retain consistency between the system for EHC Plans in Part 3 of the CFA 2014 and the very much more detailed law relating to education in the Education Act 1996, section 83(7) of the CFA 2014 requires the Education Act 1996 and Part 3 of the Children and Families Act 2014 to be read as if Part 3 were contained in the Education Act 1996.

Although section 83(7) is obscurely drafted, in my view it is intended to coordinate the two systems, at least in their core concepts. That is certainly so regarding the terms ‘special educational needs’ and ‘special educational provision’. Those terms and their meanings were largely lifted from the Education Act 1996 into the CFA 2014 subject, obviously, to appropriate changes to reflect (for example) the new age-range of persons for whom education is to be provided.

Under the Children and Families Act 2014, special educational needs has the meaning in section 20(1) and special educational provision has the meaning set out in section 21(1) [section 83]. As relevant, these provisions state:

Sections 21(3) – (5) then go on to increase the scope of matters that are to be contained in an EHC Plan to include (where relevant) health care provision and social care provision. It remains the case, however, that a Tribunal will only have jurisdiction to deal with educational needs: section 21(3) – (6).

The definitions for special educational needs and special educational provision under section 312 of the Education Act 1996 (both before and after amendment) are the same in core respects:

It is clear from the wording of these provisions that a special educational need must arise from a learning difficulty. It is also clear that the learning difficulty must call for special educational provision.

On this language, it cannot be sensibly argued that a need for home to school transport arises from a ‘learning difficulty’ in and of itself. Nor, on the wording, can home to school transport be classed as a form of special educational provision. As recognised in case law examining the structure and language of the Education Act 1996, special educational provision is distinct from the transport needed to access that provision. So, for example, in R v London Borough of Havering ex parte K [1998] ELR 402 at 404-405, a case in which a parent wished the Local Authority to take on responsibility for transporting her child at the beginning and end of each to the school at which he was a boarder, Sedley J said:

This is not to say to say that issues about transportation are irrelevant. It depends on the context. In cases in which the choice of school is in issue in respect of a child , the cost of transportation is a matter which may be taken into account in deciding whether the parental choice or Local Authority choice of school is to prevail. In this appeal, even if H was still a child for the purposes of the Education Act 1996 (which she is not), the issue was not the choice of school.

Section 15ZA of the Education Act 1996 as amended reinforces the analysis in the case law. The duty in described in terms of ‘education’ and ‘training’. Other matters, such as the location and times at which the education or training is provided, go to the suitability of the education to meet the individual’s needs, and not to the meaning of education or training themselves.

My conclusion is that there is nothing in the wording of the sections cited above which suggests that Parliament intended to change our understanding of these core terms. It follows that I accept the Local Authority’s submission that the F-tT erred in law by finding that transportation to and from school was either a special educational needs or special educational provision to meet such a need.

Issue (ii) Does a Local Authority have any duty under section 508F of the Education Act 1996 to pay transportation costs which would enable a young person over the age of 19 with an EHC Plan to access the education specified in the plan?

Mr Goudie’s straightforward submission is that the Education Act 1996 does not impose a duty on the Local Authority to pay for transport for a person in H’s situation even though the Local Authority maintain an EHC Plan for her. He argues that the question of whether a Local Authority is required to pay for a person’s transport is governed by sections 508B to 508F of the Education Act 1996. These apply both to Statements of Special Educational Needs and EHC Plans.

There are two main strands to Mr Goudie’s argument.

The first is that the CFA 2014 only grants a right of appeal against particular aspects of Local Authority decisions. These are the special educational needs in the plan, the special educational provision in the plan, the school/type of school/institution specified in the plan or, if no school is named, that fact. Since home to school transport is not a special educational need, not special educational provision, not the naming of a school and not a failure to name one, it carries no right of appeal to a Tribunal. A person adversely affected by a decision concerning the provision of transport would have to seek a remedy by way of judicial review.

Mr Goudie reinforced his argument by reference to the powers granted to the Tribunal in section 43 of the Special Educational Needs and Disability Regulations 2014.

It is plain that these powers do not permit the Tribunal to deal with transportation in the manner in which the F-tT purported to do so.

The second, critical strand of argument is based on section 508F (italics added).

As H is over 19 years old, has an EHC Plan and would attend a qualifying institution, the flow of section 508 is this:

The Local Authority has a duty to make arrangements for H if they consider that to be necessary having regard to all of the relevant circumstances. This is not a pure discretion. Although the question of what is necessary is a matter for them, in deciding that question they must exercise their judgment judiciously and in good faith. If they come to the conclusion that it is necessary, they must make the necessary arrangements and the transportation must be free of charge.

At the hearing, Mr Goudie distinguished the duty of the Local Authority under section 508F from the more extensive duty owed to an eligible child under Schedule 35 of the Education Act 1996. He was, in my view, right to do so. A Local Authority has a duty to secure home to school transportation for certain ‘eligible’ children (i.e. those who are not over compulsory school age, section 579) under Schedule 35 of the Education Act 1996. The content of the duty varies from paragraph to paragraph of the Schedule, but as a very broad generalisation, as regards children with special educational needs, disabilities and mobility problems the Local Authority must make available to them free transportation if (i) they cannot reasonably be expected to walk to the school at which they are registered and (ii) there are no suitable arrangements to register them at a school nearer to their home. (Footnote: ⁵) There is no correlative provision for those in the post-19 year old group.

In connection with the duty under section 508F, I was also referred to the Code of Practice issued by the Secretary of State under the CFA 2014. The parents sought to rely on the paragraphs relating to transport in the Code to support their case that the Local Authority was obliged to provide transport for H because her circumstances were exceptional.

The relevant paragraphs of the Code say this:

There are problems with these paragraphs, the first two of which reproduce paragraphs in the old SEN Code of Practice. One problem is that 9.214 and 9.215 try to summarise a number of very different situations in as few words as possible thereby creating inaccuracy and confusion. Paragraph 9.214, for example, does not deal with situations under Schedule 35 in which the Local Authority cannot ask parents to pay for home to school transportation for an eligible child to their school of the parents’ choice even though it is further away than one identified by the Local Authority (Footnote: ⁶). Paragraph 9.215, on the other hand, may be wrongly interpreted (as it was in this appeal) to lay down a free-standing rule allowing transport needs to be included in an EHC Plan if exceptional circumstances could be shown to exist, despite section 508F. A Tribunal must apply the law. If a Tribunal finds guidance in the Code which flies in the face of legislative provisions, its duty is to apply the law as laid down by Parliament.

Concluding on this point, the F-tT was in error of law by deciding that it could bypass section 508 by relying on paragraph 9.215 of the Code. It also erred in law in taking jurisdiction over transport where none existed.

There is no need to remit this appeal to a F-tT. All that is required is to eliminate from the EHC Plan any words dealing with responsibility for, and payment by the Local Authority or H’s home to school transportation.