R (S) v Eduaction (Waltham Forest) and the London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE UNDERHILL |
| Judgment Date | 22 November 2006 |
| Neutral Citation | [2006] EWHC 3144 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 November 2006 |
| Docket Number | co/8417/06 |
[2006] EWHC 3144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Underhill
co/8417/06
MR S appeared on behalf of the CLAIMANT
MR D RUTLEDGE (instructed by LEGAL SERVICES DEPT OF WALTHAM FOREST) appeared on behalf of the DEFENDANT
The claimant is a child now aged 16. He is severely autistic. By these proceedings, which he brings by his father as his litigation friend, he challenges the decision of the defendants not to provide him with transport to his school. Somewhat unusually, the claimant's father, who acts in person but is a solicitor by profession, has made no application for an order under section 39 of the Children and Young Persons Act 1933, or under CPR 39. He takes the position, which I respect, that no shame should be attached to his son's condition and that since the case involves no other confidential information about him and there is no respect in which his interest could be damaged by publication of the proceedings, no order designed to procure privacy or anonymity would be justified. The defendants do not regard it as their role positively to seek such an order, but Mr Knafler, who appears for them, has on instructions told me that it is their view that such an order ought to be made in order to protect the confidentiality of a child in all cases such as this. I consider that on balance I ought to make an order that these proceedings be reported in such a way as not to identify the claimant; and for that purpose I will refer to him in this judgment as "W", to his father and mother as "Mr and Mrs S", and to his sisters, who feature briefly in the evidence, by their initials. The general practice of the courts in cases of this kind reflects a realistic and proper assessment that in the case of a child even matters which are not specially confidential or damaging ought not to enter the public domain where there is no special public interest in their doing so.
The circumstances giving rise to the proceedings can be summarised as follows.
(1) The first defendant is the Local Education Authority with responsibility for W's education. The second defendant is a company which by contract with the first defendant is responsible for the discharge of its obligations in the respects relevant to these proceedings. It is unnecessary for the purpose of these proceedings to distinguish between them, and I will refer to them without differentiation as "the defendants". The defendants' Head of Services for Vulnerable Children is Mr Jim Waddington, who is responsible for both their special educational needs service and their transport service.
(2) When he was as young as five, W started to attend Whitefield School in Walthamstow, a large and well-regarded school for children with special educational needs. In the summer of 2005 he was removed from the roll at Whitefield in circumstances which have led to separate litigation but which are not relevant for the purpose of these proceedings. His parents challenged that position using the mechanism of his statement of special educational needs, and in May 2006 his placement at Whitefield was confirmed by the decision of a Special Educational Needs and Disability Tribunal. But it did not prove practicable for him to restart there before the summer holidays, and for various reasons which I need not go into at this stage he has not in fact yet restarted and has been away from school now for over a year.
(3) During the whole of the period until the interruption of his schooling in July last year, W was provided by the defendants with transport to school in pursuance of their duty under section 509 of the Education Act 1996, Whitefield being more than "statutory walking distance" from W's home. Initially he travelled on a bus with other children, but in the latter part of the period he was taken to school on his own with two escorts in a specially adapted minibus: this was because his behaviour could on occasions be disruptive and uncontrolled.
(4) In, I think, 2005 (or it may be earlier this year) Mr and Mrs S separated. W and his younger sister, I, live with their mother at the former matrimonial home in Chingford.
(5) Following the decision of the Tribunal in May 2006 W's parents assumed that the previous arrangements for taking him to school, or at least some equivalent to them, would be resumed. That impression was reinforced by letters from the defendants dated 15th June 2006 and 21st June 2006 which, although they suggested that there might have to be some changes in the details of the arrangements, clearly stated that transport would continue to be provided.
(6) However, in circumstances which I shall have to describe in more detail below, the defendants changed their position, and by letter dated 31st August 2006 they offered not themselves to provide or arrange for the provision of transport for W, but rather to provide "transport assistance" in the form of an allowance calculated to cover the fuel costs of Mr and Mrs S themselves driving W to school and back each day. The figure was calculated on the basis of the mileage from the address where Mrs S and W and his sister were living, and it was in practice Mrs S who the defendants envisaged would be taking W to and from school.
(7) Mr and Mrs S appealed against that decision under an internal procedure permitting an appeal to a non-statutory Transport Appeals Panel. Mr S submitted written representations. He challenged the decision both as a matter of law and on the grounds of the fairness and practicality of the proposed arrangements. As regards the latter he outlined the practical difficulties for Mrs S in taking W to school as well as his sister. There was no hearing but the Panel considered the appeal and decided to uphold the original decision.
It is Mr S's case on behalf of W that the defendants' decision of 31st August, confirmed by the Transport Appeal Panel, is unlawful and that the defendants are obliged to provide not simply "transport assistance" of the kind offered but actual transport. His primary position is that the arrangements which were in place prior to the summer of 2005 should be restored, but he says that he is willing to consider other arrangements such as shared transport if they are judged by the defendants to be practicable.
These proceedings were commenced on 13th October 2006. They have been treated as very urgent because although there have been other issues which have prevented W returning to school at Whitefield, it is Mr S's position that those issues were likely to be resolved in the near future, at which point the question of transport would become critical. In those circumstances Dobbs J was prepared on 25th October to grant permission without sight of an acknowledgment of service from the defendants, and the matter came before me on 15th November. The speed with which the application has come on has created some difficulties for the defendants in preparing their evidence and submissions, which I have been asked to bear in mind in assessing them.
I should start by setting out the statutory background to the rights claimed on behalf of the claimant.
Section 509 of the 1996 Act, as originally enacted, was, so far as relevant, in the following terms:
"(1) A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct, for the purpose of facilitating the attendance of persons receiving education-
(a) at schools
…
(2) Any transport provided in pursuance of arrangements under subsection (1) shall be provided free of charge."
The effect of section 509 when read with section 444, whose terms I need not set out here, is in practice to impose an obligation on a local educational authority to provide free transport to school for children living outside the statutory walking distance —see R (Jones) v Ceredigion County Council [2004] EWHC Admin 1376. It was under these powers that transport was provided for W up to the summer of 2005. However, the Education Act 2002 introduced a new regime as regards children "of sixth form age", which for practical purposes means children of over 16. The position as regards such children is the subject of a new section 509AA which is in the following terms:
"(1) A local education authority shall prepare for each academic year a transport policy statement complying with the requirements of this section.
(2) The statement shall specify the arrangements for the provision of transport or otherwise that the authority consider it necessary to make for facilitating the attendance of persons of sixth form age receiving education or training-
(a) at schools.
…
(3) The statement shall specify the arrangements that the authority consider it necessary to make for the provision of financial assistance in respect of the reasonable travelling expenses of persons of sixth form age receiving education or training at any establishment such as is mentioned in subsection (2).
…
(7) The authority shall-
(a) publish the statement, in a manner which they consider appropriate, on or before 31st May in the year in which the academic year in question begins, and
(b) make, and secure that effect is given to, any arrangements specified under subsections (2) and (3)."
I should also refer to section 509AB, which provides so far as relevant as follows:
"(1) A statement prepared under section 509AA shall state to what...
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