Challenging school transport policies in England

8 mins read

This advice applies in England only.

Local authorities set their own school transport policies. These policies must comply with the law.

Research we carried out as part of our school transport inquiry has shown that a number of policies do not comply with the law. We are also aware of parent groups who have successfully challenged potentially unlawful policies when they have been put out for consultation.

For full details of school transport eligibility, see our main transport page.

Local school transport policies and requirements to consult

Local authorities in England must publish policies for the following age groups:

Children of statutory school age

This transport policy must be published under the Education (School Information) Regulations 2002 (as amended). It must form part of the composite prospectus, a document the local authority publishes annually to show admission arrangements for state funded schools in the area. The composite prospectus must be published by 12 September the year before admission.

Statutory guidance (Home to School Travel and Transport Guidance) states that the information in the policy should:

• Be clear and easy to understand.
• Give full information on travel and transport arrangements.
• Explain both statutory transport provision and that provided on a discretionary basis.
• Set out the appeal process.

The law does not say how or when the local authority should consult on transport policies for this age group. Statutory guidance recommends that local authorities should consult widely on any changes with all interested parties for at least 28 days during term time.

Young people of sixth form age (16-18).

Under section 509AA of the 1996 Education Act, the local authority must publish a transport policy statement for 16-18 year olds. This must be published by 31 May to take effect the next academic year, i.e. from September.

Local authorities must have regard to statutory guidance ( Post-16 transport to education and training) when drawing up the policy for this age group. There are legal requirements for who must be involved in the consultation, including young people and their parents.

Relevant young adults (18-24 year olds with an Education, Health and Care (EHC) plan)

Under section 508G of the 1996 Education Act, the local authority must publish a transport policy statement for relevant young adults who are entitled to transport under the adult transport duty. ‘Relevant young adults’ are defined as those under 25 with an EHC plan (although the guidance still uses the old terminology, ‘subject to learning difficulty assessment’). 

The policy must be published by 31 May to take effect the next academic year, i.e. from September. There are legal requirements for who must be involved in the consultation, including relevant young adults and their parents.

Many local authorities consult on all age groups as part of the same consultation.

Local offer

Local authorities must publish details of school transport for children and young people with special educational needs and disabilities (SEND) in their local offer. This is set out in the Special Educational Needs and Disability Regulations 2014 – schedule 2 paragraph 14.

Consultations

A formal consultation is when a public body, such as a local authority, seeks the views of stakeholders on a new policy, a proposed change to eligibility criteria or other policy changes.

Case law has established the general principles of consultation. Consultation must be proportionate and fair. In particular:

• Consultation should happen when proposals are still being developed.  It should be possible to change proposals in light of the consultation.
• Stakeholders must be given enough reasons for the proposals to allow them to make an informed response.
• Stakeholders must have adequate time to consider and respond to the proposals.
• The outcome of the consultation should be taken into account.

Case law has established that the definition of what is “fair” will be more stringent if people stand to lose an existing service or benefit. This would apply to cuts in school transport services.

It may be possible to mount a legal challenge via judicial review if a consultation has not been carried out fairly.

There is more information on consultations in Disabled Children – a legal handbook . This is a free download from the Council for Disabled Children.

Common reasons to challenge a local school transport policy

Below are issues we’ve identified in proposed and actual school transport policies. These issues are potentially, and in some cases actually, unlawful and could be reason to challenge the policy.

Inadequate consultation

For example, if stakeholders are not made aware of changes, don’t have enough time to respond, or if responses are limited to an online questionnaire.

Inadequate policy

When a transport policy does not comply with the recommendations set out in statutory guidance. Common issues are:

• The policy is difficult to understand for the average parent.
• The policy does not include all eligibility criteria e.g. children with SEND or mobility difficulties.
• There is limited information on how to apply or appeal.

Blanket policies that restrict eligibility

Some local authorities have blanket policies that limit eligibility to children with SEND who:

• Live outside the statutory walking distance.
• Have an EHC plan (or one that specifies transport arrangements).
• Attend out of authority schools.
• Attend special schools.
• Have physical/ medical difficulties only.

Such policies are not lawful. Children who cannot reasonably be expected to walk to school because of SEN, disability or mobility difficulty are eligible for transport under section 508B and schedule 35B (2) of the Education Act 1996. The policy should explain how a child with SEND meets the criterion for school transport.

Local authorities are only obliged to provide transport to the nearest suitable school and can refuse transport if parents choose a school further away. To be considered “suitable”, a school must be right for the child’s age, ability and aptitude, as well as being able to meet their SEN. The policy should explain this. 

Requiring parents to arrange transport

This includes:

• Forcing parents to accept  a mileage allowance or individual travel budget.
• Expecting families with a Motability car to drive their children to school.
• Expecting families to use a higher rate mobility component payment to pay for school transport.

This is unlawful. The local authority must provide travel arrangements for eligible children. Mileage allowances or use of the parental car can only be with the parent’s consent (Education Act 1996 – section 508B (4)(b)).

Equality issues

Local authorities must comply with the public sector equality duty under the Equality Act 2010. They must consider the potential effect of their transport policy on disabled people, both disabled children and disabled parents.

Below are common ways in which disabled children or disabled parents may be disadvantaged:

Under 5s

There is no legal obligation to provide free transport for this age group, but a blanket refusal could be discriminatory. For example, if a four year old attends a special school some distance from home and could not access education without transport.

Travel training

It is reasonable to ask parents and young people to consider travel training, but it should not be a blanket policy. It should be based on individual assessment and tailored to the young person’s needs. Some young people may never manage independent or supported travel by public transport. There may be issues in rural areas if times of courses for young people with SEND don’t fit in with bus times.

No door to door transport

Some local authorities now expect parents to take children to pick up points instead of collecting children from home. This is legal but should be based on individual assessments, not a blanket policy. Local authorities have a duty to provide ‘non-stressful’ transport arrangements.

Charging for transport for young people of 6^th form age

This is lawful, but the local authority should avoid indirect discrimination. For example, will the contribution be set at a similar level to that of a bus pass for non-SEND students? The local authority should also take into account that students with SEND may have to travel further to a suitable course.

Taking action

Here are things you can do to have your say on school transport policies in your area.

• Check the Local Offer section of your local authority website for proposed changes to transport policies.
• Respond to consultations when the opportunity arises.
• If you think there is something wrong with an existing transport policy, make a formal complaint to your local authority.   
• Contact the education team on our helpline for further advice if you need to.

If you need advice about your son or daughter’s transport to school or college, look at our section on school transport and call our helpline to talk to one of our advisers. 

Guidance and resources

Statutory guidance:

• Home to school travel and transport guidance.
• Post-16 transport to education and training.

Independent Support factsheet on consultations:

• Independent Support Fact Sheet #12: Consultation (councilfordisabledchildren.org.uk)

Blog post from barrister Steve Broach on fair consultations:

• https://rightsinreality.wordpress.com/2014/10/29/duty-to-consult-supreme-court-sets-down-what-fairness-requires/

Related information

Parent guides and factsheets

Factsheet: Challenging school transport decisions

Download now

Blue Badge disabled parking permits

Read more

Transport & leisure discounts

Information about help with parking, getting a car, paying road tax and rail and bus travel, as well as advice on saving…

Read more