Suitable school transport is often crucial for children who have additional needs – it’s key to enabling them to attend school regularly. Access to education can be severely restricted if they lack appropriate transport to and from school.
The Human Rights Act (HRA) 1998 provides a powerful legal tool to secure the necessary transport, particularly when councils have very restrictive policies. The act can be used to ensure the right to education is respected and protected.
Key articles in the act that are relevant here include:
- Article 2 of protocol 1: right to education; this ensures that no one is denied the right to an effective education
- Article 14: freedom from discrimination; this article guarantees that the rights set out in the HRA must be protected without discrimination.
The right to education, as set out in article 2, was discussed in a 2010 case against a local authority – A v Essex County Council.
The judge noted “that an authority with the responsibility for providing education, if it knows that a pupil is not receiving it and engages in a completely ineffectual attempt to provide it, is in breach of the provision”.
The Education Act 1996 requires local authorities to make suitable travel arrangements for eligible children, who include many with special educational needs and disabilities (SEND).
If an authority that knows that a pupil is not receiving education and engages in a completely ineffectual attempt to provide it, this is in breach
However, these provisions are not always good enough or properly implemented. When this happens, the HRA can be used to ensure that the right support is made available.
Article 14 states that the rights included in the HRA must be enjoyed without discrimination.
It is not a standalone right; it is a right not to be discriminated against when you are relying on your other rights in the HRA.
It is sometimes called a piggyback right so, when one of your other rights is at risk, you can also raise your right to non-discrimination if you think that is an issue (see Olivia’s story, below).
In relation to children with SEND, the freedom from discrimination means they should not be disadvantaged compared to their peers when accessing their right to education.
Denying or failing to provide suitable transport can constitute discrimination if it results in a child with SEND being unable to attend school regularly and on time, therefore holding back their progress at school. The principle is that children should not face barriers to education because of a lack of transport.
Enrolled but out of school
A recent high court case against Croydon Council showed how school transport is part of the right to education (B & Anor, R (On the Application Of) v NHS South West London ICB).
The court found that a local authority’s failure to provide suitable transport breached two children’s right to education under article 2 of protocol no 1.
The court stressed the importance of transport in ensuring that the children could access education and that the council must provide transport where needed.
It was found that Croydon had agreed to transport the children to school but was unable to provide a suitable transport solution and argued it was not its responsibility.
The children were not transported to school for 18 months and Croydon’s efforts to ensure they were provided with an education were completely ineffective.
Although the judge accepted that it was not just the fault of the local authority that the children were not attending school (their mother had additional needs and did not fill out paperwork effectively), “once it became aware that the children were not attending school, Croydon had a primary responsibility to ensure that they did so, or at the very least that they were able to do so”.
Croydon had refused to make any educational provision for the children because they were enrolled at a school already, while not taking the steps necessary to ensure that they could actually attend that school.
The judge decided this meant that they were denying the children their right to education under article 2 of protocol 1 by failing to provide transport to the school.
Olivia’s story
Olivia is eight years old, has a moderate learning disability, global development delay and uses a wheelchair.
She has an education health and care plan (EHCP) and, although there is a disagreement on where she will attend school next, she is enrolled in a specialist school that is five miles from her home.
Olivia and her family have recently moved into the area, so the EHCP is being reviewed as part of the handover during the change of responsible local authority. The new council agreed it would transport her to and from this school while it remained named in her EHCP.
Olivia requires an adapted vehicle and an escort. While the local authority provided the adapted vehicle, it did not have an appropriate escort available, and Olivia was only able to travel to school if her father took her.
Failing to provide suitable transport can constitute discrimination if it results in a disabled child being unable to attend school regularly and on time
This was not a feasible solution because of his work commitments, so Olivia had not been going to school.
The local authority argued that it had provided the transport so had fulfilled its duties, and therefore the issue was no longer their responsibility as this is what it said in its policy.
Olivia’s father challenged this, but the council kept referring to its policy and refusing to provide an escort.
In a formal complaint letter, Olivia’s father explained that, under the HRA’s right to education, the local authority must make arrangements to allow Olivia to attend school.
By knowing that she was unable to attend her school because of a lack of appropriate transport,
the council was unlawfully preventing her from accessing an effective education.
He also made it clear that this is only happening because of Olivia’s additional needs, so it was also denying Olivia her right to be free from discrimination under article 14.
This is because they were failing to treat Olivia appropriately as she needed different support to get to school, and this failure had the knock-on effect of depriving her of an education.
The local authority apologised and agreed to provide Olivia with escorted transport from the following week.
Phoebe Craig is a human rights officer at the British Institute for Human Rights
Cases
