School Transport and the Right to Education

Blog 5 of our 6-part Human Rights in SEND series.

Suitable school transport is often crucial for children who have additional needs, it is a key part of enabling them to attend school regularly and benefit from their educational experience. The Human Rights Act (HRA) provides a powerful legal tool to secure these necessary transport arrangements, particularly when local authorities have very strict and limiting policies. This blog will explore how the HRA can be used to guarantee school transport for children with SEND, ensuring their right to education is respected and protected.

Key article of the Human Rights that are relevant to securing school transport for children with SEND include:

Article 2 of Protocol No. 1 (Right to Education): This article 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 Human Rights Act must be protected without discrimination, You can read more about the right to be free from discrimination here.

The Right to Education

Article 2 of Protocol No. 1 clearly states that everyone has the right to education. It was described in a very useful 2011 legal case:

‘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’.

Read the case of A v Essex County Council (National Autistic Society intervening) [2011] here.

For children with SEND, access to education can be severely restricted if they lack appropriate transport to and from school. The Education Act 1996 requires local authorities to make suitable travel arrangements for eligible children, which includes many children with SEND. Read about s508B of The Education Act here. 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.

Freedom from Discrimination

Article 14 states that the rights included in the HRA must be enjoyed without discrimination, so it can only be used when another right is engaged, to understand what this means please read our explainer on this here..

This means that children with SEND 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 with SEND should not face barriers to education due to lack of transport.

A recent legal case on how school transport is part of the Right to Education

ZB & Anor , R (On the Application Of) v London Borough of Croydon [2023]:

In this case, the High Court found that the 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 child could access education and they must provide transport where needed.

In this case it was found that Croydon had agreed to transport the children to school, but they were unable to provide a suitable transport solution and argued it was not their responsibility. This meant that the children were not transported to school at all for a period of 18 months, and Croydon’s efforts to ensure they were provided with an education were completely ineffective.

Although the judge did accept 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, whilst not taking the steps necessary to ensure that they could actually attend that school. Under Article 2 Protocol 1, the judge decided this meant that they were denying the children their Right to Education by failing to provide transport to the school.

You can read the judgment in full here.

Olivia's Story

Olivia is 8 years old, has a moderate learning disability, global development delay and uses a wheelchair. She does have an EHCP and although there is currently a disagreement on where she will attend school next, she is enrolled in a specialist school that is 5 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 of responsible local authority. The new local authority agree that they will transport her to and from this school while it remains named in Section I of her EHCP.

Due to Olivia’s needs, she requires an adapted vehicle and an escort. While the local authority has provided the adapted vehicle, they don’t have an appropriate escort available, and Olivia is only able to travel to school if her dad acts as an escort. This is not an appropriate solution due to his work, so Olivia has not been going to school. The local authority argue that they have provided the transport itself, so they have fulfilled their duties, so the issue is no longer their responsibility as this is what it says in their policy.

Olivia’s dad has challenged them on this, but they keep referring to their policy and refusing to provide the necessary escort.

In a formal complaint letter Olivia’s dad explains that under the 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, they were unlawfully preventing her from accessing an effective education. He also made it clear that this was 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 differently when 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 the escorted transport from the following week.

Practical things you can do

Read our resources on all rights protected under the Human Rights Act: All rights explained here.

Include any human rights concerns in formal complaints to schools or the local authority itself. As well as in any submissions to the SENDist Tribunal. We will have model letters available soon and include the link to those in our next blog.

A reminder of our blog series