In 2017, the case of AA v London Borough of Haringey* suggested that transport could be considered Special Educational provision. Upper Tribunal Judge H Levenson stated at paragraphs 11 and 12:
“11. I am unaware of any authority that states in terms that as a matter of law transport needs can never constitute a special educational need and that measure to deal with them can never in any circumstances whatsoever be specified in the plan…”
It has been argued that this decision left much uncertainty about whether or not transport can ever be considered to be special educational provision, and so the position has now been clarified in Birmingham City Council v KF**.
In this case, Birmingham City Council Appealed against the First-tier Tribunal’s decision to insert provision relating to transport in Section F of a young person’s EHC Plan. In considering Birmingham City Council’s Appeal, Judge Levenson decided at Paragraph 19 that:
“School transport is capable of being special educational provision if it educates or trains (Section 21 of the 2014 Act, and also ESCC v JC [2018] UKUT 81 (AAC)). It is for the appellant to make the case that the transport fulfils some educational or training function or for the First-tier Tribunal to consider this pursuant to its inquisitorial or quasi-inquisitorial function. The answer will depend on the facts of the particular case.”
In considering all of the previous case law which stated that transport could not be considered to be Special Educational Provision, Judge Levenson had this to say:
“I acknowledge that Mr Greatorex has submitted a list of authorities which have held or appear to have held that transport cannot possibly be special educational provision but this is a statutory regime, the 2014 Act is new legislation and, although it could easily have done so, it did not exclude that possibility.”
In brief, the Upper Tribunal has highlighted that when drafting the Children and Families Act 2014, the government did not expressly state that transport can not be considered to be special educational provision in any circumstances, which leads the door open to instances where transport may well be considered to be special educational provision.
Whether or not transport can be considered to be special educational provision will rely heavily on the facts of each case. Section 21(5) of the Children and Families Act 2014 states that provision that educates or trains a child is to be considered to be special educational provision. Therefore, if transport is “deemed” to educate or train a child or young person, then it can be written into an EHC Plan as special educational provision.
What sorts of circumstances might lead to transport educating or training a child or young person remains to be tested in the First-tier Tribunal, and potentially in the Upper Tribunal. Perhaps 2019 will provide yet further clarity.
*[2017] UKUT 241 (AAC) ** [2018] UKUT 261 (AAC)