The Queen (on the application of Kirstine Drexler, by her father and litigation friend, Stefan Drexler) v Leicestershire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Singh,Lord Justice Bean |
| Judgment Date | 07 April 2020 |
| Neutral Citation | [2020] EWCA Civ 502 |
| Date | 07 April 2020 |
| Docket Number | Case No: C1/2019/1914 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 502
Lord Justice Bean
Lord Justice Newey
and
Lord Justice Singh
Case No: C1/2019/1914
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Swift
Royal Courts of Justice
Strand, London, WC2A 2LL
Jenni Richards QC and Ciar McAndrew (instructed by Irwin Mitchell) for the Appellant
Peter Oldham QC and Zoe Gannon (instructed by Legal Services, Leicestershire County Council) for the Respondent
Hearing dates: 20–21 February 2020
Approved Judgment
Introduction
The Appellant appeals against the order of Swift J of 19 July 2019, by which he dismissed the Appellant's challenge to the Respondent's decision, taken by its Cabinet on 9 March 2018, to amend its Special Educational Needs (“SEN”) Home to School/College Transport Policy for the 2019/2020 academic year (“the SEN Policy”). Limited permission to appeal was granted by Males LJ on 14 November 2019.
Factual Background
The hearing before this Court took place before the coronavirus pandemic changed life in this country, for example resulting in the closure of schools. I will therefore summarise the factual background as it was at the time of the hearing.
The Appellant was born on 2 June 2002 and is severely disabled. She attends a school for pupils with special educational needs. The school is some 13 miles away from her home. At present the Respondent (Leicestershire County Council or “the Council”) provides her with home to school transport in a mini-bus for an annual contributory charge of £660 as hers is a non-low income family. The Appellant is taken to and from school in a minibus, which also transports other children.
The Appellant's journey to school is a 26-mile round trip: depending on traffic, the journey takes between 30 and 45 minutes each way. In addition it takes about 10 minutes at each end of the journey to load or unload the Appellant, and to settle her. In evidence which is before the Court her father explains that looking after his daughter is tiring, and is a full time commitment. He is her primary carer. His wife works full-time. For now, he uses the time while his daughter is at school and travelling to and from school, to complete all other household tasks he has to do, both for the Appellant and her two siblings. This time provides a form of respite for him. In the event that the Council-provided transport is withdrawn, he will spend up to three hours each day taking his daughter to and from school.
The Appellant challenges the Respondent's decision, taken by its Cabinet at a meeting on 9 March 2018. At that meeting, the Respondent's Cabinet considered a report prepared by its Director of Environment and Transport. That report proposed revisions both to the Respondent's Mainstream Home to School Transport Policy and to the SEN Policy. The Cabinet resolved to accept the changes proposed, to come into effect from the beginning of the 2019–2020 academic year. The Respondent subsequently (after the hearing before the High Court had taken place but before judgment was given by Swift J) decided to delay implementation of the revisions to the policies until the beginning of the 2020–2021 academic year.
The SEN Policy governs the way in which the Respondent provides home to school transport for children and young people (“CYP”) with SEN. Para. 3.1 of the SEN Policy states:
“The assistance provided by the [Respondent] 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.”
The SEN Policy entitles pupils aged 5–16 to free home to school transport if they attend the school designated by the Respondent as appropriate to meet their needs (or some nearer school) and the home to school distance exceeds a set threshold: see the SEN Policy, paras. 3.2–3.3. Students aged 19 or over who attend a further education college or free-standing sixth form college are also entitled to free home to school transport if the Respondent deems transport to be necessary to facilitate attendance at the relevant institution: see the SEN Policy, para. 9.3.
In respect of CYP such as the Appellant, who attend school, have SEN and are aged between 16 and 18 years old, the SEN Policy states that the Respondent has a discretionary power to provide transport assistance: see the SEN Policy, para. 8. Under the previous version of the SEN Policy, the Respondent commonly exercised that discretion by providing actual home to school transport to the Appellant and other pupils in her cohort. Under the revised version of the SEN Policy, however, the transport previously provided by the Respondent will, save in exceptional cases, be replaced by money payments known as Personal Transport Budgets (“PTBs”): see the SEN Policy, para. 8.3. In most cases the amount of the PTB will be insufficient to cover the cost of providing the actual transport currently provided: see the judgment of Swift J, at paras. 36 and 63.
Appendix 1 to the revised SEN Policy takes the form of a list of Frequently Asked Questions. In this section it is noted that Council-provided taxis, buses and minibuses will, save in exceptional cases, cease to be provided, and will be replaced by PTBs.
Under the present arrangements, the transport provided to CYP such as the Appellant is not provided free of charge. Save for children of low-income families, the Council makes a charge of £660 per annum. The £660 charge will continue to apply under the new policy: it will apply in exceptional cases where the Respondent provides transport and will also apply when a PTB is provided, in that the Council will reduce the PTB payment by £660.
Applications for home to school transport assistance under the revised SEN Policy were invited to be made by 31 March 2019. The Appellant applied to the Respondent for transport assistance and, on her application form, the Appellant's father contended that her case was exceptional, so that she should continue to receive actual transport rather than a PTB. In a decision letter dated 31 May 2019 the Respondent determined that the Appellant's case was not exceptional and therefore she would be granted a PTB when the revised SEN policy comes into effect. As mentioned above, the Respondent has decided to delay implementation of the revisions to the SEN Policy until the beginning of the 2020–2021 academic year.
Material provisions of the Human Rights Act 1998
Section 6(1) of the Human Rights Act 1998 (“ HRA”) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. Subsection (2) provides that subsection (1) does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. It was common ground in the present appeal that there is no relevant legislation within the meaning of subsection (2).
The relevant Convention rights are set out in Sch. 1 to the HRA. The Appellant relies upon the equality provision in Article 14, read with the right to respect for private and family life in Article 8 and the right to education in Article 2 of the First Protocol (“A2P1”). The first sentence of A2P1 provides:
“No person shall be denied the right to education.”
Although age is not one of the express grounds mentioned in Article 14, it is common ground before this Court that it is an “other status” and therefore in principle falls within Article 14.
Relevant education legislation
Section 8 of the Education Act 1996 (“the 1996 Act”) defines a person of “compulsory school age” as a person who attains the age of 5 until the age of 16. That is an over-simplification of the statutory definition but will suffice for present purposes.
Section 2(2) of the 1996 Act defines “secondary education” to mean both (a) full time education suitable to the requirements of pupils of compulsory school age and also (b) full time education suitable to the requirements of pupils who are over compulsory school age but under the age of 19, which is provided at a school at which education within the meaning of para. (a) is also provided.
Under section 14 of the 1996 Act, a local authority in England has a duty to secure that sufficient schools for providing, amongst other things, education that is secondary education by virtue of section 2(2)(a) are available for their area. It is important to appreciate that that provision refers only to para. (a) of section 2(2).
In contrast, section 15ZA provides that a local authority in England must secure that enough suitable education and training is provided to meet the reasonable needs of persons in its...
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