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Court of Appeal Decision on School Transport for disabled 16-18 Year Olds

By Rebecca de Winter, Trainee Solicitor at SEN Legal

On the 7th April the Court of Appeal handed down a Judgement dismissing an Appeal brought against changes to Leicestershire County Council’s Transport Policy for disabled 16-18 year olds.

The case of Drexler v Leicestershire County Council started with a Judicial Review against Leicestershire County Council’s changes to its transport policy for disabled 16 to 18 year olds - from the direct provision of transport to giving families personal budgets to arrange their own transport, money payments known as Personal Transport Budgets (“PTBs”). It was claimed by the parents that not only would the amount of the PTB’s not cover the actual cost of transportation but that parents would have the very difficult task of finding suitable transport or undertaking the journey themselves. The Judicial Review was on the basis this discriminated against disabled students and students of that age in their enjoyment of their Article 8 right for a private and family life, in addition to their right to Education under Protocol 1 Article 2. As well as a Public Sector Equality Duty challenge (an instrument that requires public sector organisations to consider the impact on equality when they are planning to change, cut or introduce services, right from the start). The Court found the policy was lawful and the claim was dismissed.

The Claimant then brought an Appeal against the dismissal of the claim. However, the Court of Appeal’s only consideration was whether there was discrimination in the enjoyment of these rights on grounds of age.

The Claimant argued that if you compare the treatment of under 16s and over 18s to those aged between 16-18, the Council’s new policy treats these age groups differently. The policy resulted in disabled 16-18 Year Olds being treated less favourably, simply on the basis of age.

The Court held that the Council was entitled to adopt this policy, which largely mirrored the Education Act 1996 which distinguishes these three age groups. Under the Act the provision for eligible children in the different age groups is as follows;

  1. Children under 16 MUST be provided with transport;

  2. For those aged between 16-18 Local Authority is only required to prepare a “transport policy statement”; and

  3. The Local Authority has a duty to make transport provision if ‘necessary’ for those over 18.

The Court interestingly highlighted the distinction in the Statute between the mandatory provision of transport for pupils of compulsory school age and the discretionary nature of the duty for those who are not. The Court also had regard to the fact that children of compulsory school age were treated differently by the law, such as in s.444 of the Education Act 1996 which provides for potential commission of criminal offences by their parents if they do not attend school.

This begs the question; will we see further Local Authorities adopting policy’s like to save costs? Sadly, the answer is most certainly yes.

We understand the parents in this case will be seeking permission to Appeal this decision, so if an updated judgement follows, we will keep you posted.

If you are concerned that your Local Authority are not complying with their duty to transport your child or require any help regarding home to school transport please do not hesitate to contact us at – we can help.

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