The Queen (on application of) Kirstine Drexler (by her litigation friend Mr. Stefan Drexler) v Leicestershire County Council
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Swift |
| Judgment Date | 19 July 2019 |
| Neutral Citation | [2019] EWHC 1934 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2268/2018 |
| Date | 19 July 2019 |
[2019] EWHC 1934 (Admin)
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT BIRMINGHAM CIVIL JUSTICE CENTRE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/2268/2018
Stephen Broach and Ciar McAndrew (instructed by Irwin Mitchell Solicitors) for the Claimant
Peter Oldham QC and Zoe Gannon (instructed by Legal Services Leicestershire County Council) for the Defendant
Hearing dates: 3rd and 4th April 2019
Approved Judgment
A. Introduction
The Claimant is 17 years old and severely disabled. She attends a special school for pupils with special educational needs. The school is some 13 miles away from her home. At present, Leicestershire Council (“the Council”) provides her with free home to school transport. The Claimant is taken to and from school in a minibus, which also transports other children.
The Claimant challenges the Council's decision, taken by its Cabinet on 9 March 2018. At that meeting, the Council's Cabinet considered a report prepared by its Director of Environment and Transport. That report proposed revisions both to the Council's Mainstream Home to School Transport Policy, and to the Council's Special Educational Needs Transport Policy. The Cabinet resolved to accept the changes proposed, to come into effect from the beginning of the 2019–2020 academic year. Following the hearing of this claim the Council decided to delay implementation of the revisions to the policies until the beginning of the 2020–2021 academic year.
(1) The Council's new home to school transport policies
The two policies, as they will be applied from that time may be summarised as follows. Under the Council's Mainstream Home to School/College Transport Policy (“the Mainstream Policy”) the Council will provide free home to school transport for primary school pupils attending a mainstream school who live 2 miles or more from their nearest school, and for secondary pupils who live 3 miles or more from their nearest school. The “nearest school” condition is important since it rules out free home to school transport for pupils who attend schools other than the nearest school (because of parental preference for a different school). Some further conditions apply, and some additional provision is made for children of low-income families, but those matters are not material for the purposes of the points in issue in this case. For sixth-form pupils in mainstream schools who are in full-time education, and who started a sixth-form course when aged between 16 – 18 years old, and who live more than 3 miles away from the school or college they attend, the Council will not provide transport, but will provide an annual grant of £150 if either: (a) the pupil is from a qualifying low-income family, or (b) the travel time from home to school is more than 75 minutes by public transport. The grant is by way of a contribution to the cost of home to school transport; it will not meet the annual cost of travel.
The policy for pupils with special educational needs (“the SEN Policy”) is stated to be “supplementary” to the Mainstream Policy. Paragraph 1.4 of the SEN Policy is as follows.
“This policy explains how the [Council] assists with home to school travel arrangements for pupils with qualifying SEN/disabilities/other mobility needs whether the pupil's school place is in a mainstream school, unit attached to a mainstream school or a special school and whether it is within the statutory walking distance or further away from home.”
Paragraph 3.1 of the SEN Policy provides
“The assistance provided by the [Council] will be provided in the most cost effective and appropriate way whilst meeting the child's assessed needs. It may be provided in a number of ways, including taxi, bus, and public transport, PTB (Personal Transport budget) and concessionary travel passes as appropriate. Independent travel training may also be provided. All eligibility and travel assistance arrangements will be reviewed annually and at times of transition e.g. moving from primary to secondary education; to ensure that the basis for entitlement continues and the method of travel assistance remains appropriate.”
Paragraphs 3.2 and 3.3 respectively, set out the provision for primary school pupils, and secondary school pupils, who have Statements of Special Educational Needs made under the provisions of the Education Act 1996, or Education Health and Care Plans made under the provisions of the Children and Families Act 2014 (“EHCPs”). For each group, “travel assistance” will be provided if the pupil attends the school designated by the Council as appropriate to meet the needs of the pupil (or some nearer school), and the home to school distance is more than 2 miles in the case of a primary school pupil, or 3 miles in the case of a secondary school pupil. The travel assistance comprises the provision of free home to school transport. What is done to secure this is determined, from case to case, in accordance with paragraph 3.1 of the SEN Policy. For pupils falling outside paragraph 3.2 and 3.3, the Council retains a residual discretion to provide something in terms of assistance: see paragraphs 3.4 and 3.5 of the SEN Policy.
Paragraph 9.3 of the SEN Policy addresses pupils aged over 19 who are in education at a further education (“FE”) College or a free-standing sixth-form college. For this group the policy provides that the Council will provide home to school transport, free of charge “if the Council deems transport to be necessary to facilitate attendance” at the college.
The part of the SEN Policy primarily in issue in this litigation is the part concerning pupils at school aged between 16 and 19 years old. Paragraph 8 of the SEN Policy states that the Council may, as a matter of discretion provide “travel assistance”, and that the exercise of that discretion depends on the provisions in Section 3 of the SEN Policy. In the course of the hearing I asked for clarification: which parts of Section 3 of the SEN Policy were material for this purpose? Specifically, did paragraph 3.1 apply, such that the discretion would always be exercised in such a manner as to meet a child's “assessed travel needs” whether by money payment or by provision of transport in kind? The answer given was that the reference to Section 3 brought into account only the home to school travelling distances at paragraph 3.3 and the residual discretion at paragraph 3.4. Thus, the intention behind paragraph 8.1 is not that a child's “assessed travel needs” should be met by the Council (whether by Council-provided transport, or money payment). Paragraph 8.3 of the SEN Policy states that if travel assistance is provided, it will be in the form of a Personal Transport Budget – i.e. a money payment – not provision of actual transport, save that the paragraph goes on to state “there may be some exceptions [which will] be considered on a case by case basis – see Appendix 1”.
Appendix 1 to the SEN Policy takes the form of a list of Frequently Asked Questions. Three material points arise from this list of questions and answers. First, Council-provided taxis, buses and minibuses will, save in exceptional cases, cease to be provided, and will be replaced by money payments — the Personal Transport Budgets (“PTBs”). Second, a parent can ask the Council to continue to provide transport. Yet it is clear that such requests will only be granted in very rare instances. The material part of the answer to this FAQ is as follows.
“The offer and type of Post 16 transport remains at the discretion of the Council, but we will take into consideration individual circumstances and the needs of your child (including a consideration of your application form, the EHCP and any current transport risk assessment that the Council has undertaken). Bearing in mind that the Council is aware that all of the children that are affected by these changes have varying degrees of SEN, some examples that the Council would not ordinarily see as exceptional (in their own right):
• Single parent families
• Parent(s) that work — see below for further information on this
• Having other children to look after and/or at other schools
• Living in a rural area with or without access to public transport
• Parents/students unable to drive or having access to a car
• Students in wheelchairs
It will be for parents to demonstrate why they believe that Council-provided transport is the only viable option for their child — the Council will consider any exceptional circumstances advised for individuals on a case by case basis.
You can't use your PTB to buy back transport services through the Council, as the Council plans to maximise the usage of seats on taxis and fleet buses to those students that it must provide those services to.
You can only query your transport offer once you have been officially notified of this … If you still believe that the council has not applied its policy correctly, then there is a separate appeals procedure. You cannot appeal against the provision of a PTB just because you disagree with the policy.”
Third, in respect of the level of the PTB, the FAQ and the answer to it, is this.
“What if I feel that my PTB does not cover the costs of getting my child to school/college?
We expect that in the vast majority of cases the PTB will cover your costs and remember that it can be used in a number of other ways, not just to drive your child directly e.g. paying someone else to take your child, paying for childcare for other children while you take your child to school/college, ‘pooling’ of PTBs with other parents to car share. Some students may also be eligible for a government bursary to ‘top-up’ the PTB (see below). Ultimately, as Post...
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