DfE guidance on post-16 transport to education and training

The Department for Education (DfE) issued new post-16 transport guidance on 26 October for Local Authorities (LA). The guidance is, we suspect, as a response to problems that parents have voiced in recent months about problems with school/college transport for young people. We previously wrote about cuts to school transport here. It seems that LAs are increasingly asking parents to contribute towards funding transport. Parents often ask us whether LAs are permitted to do this and, if so, what steps LAs must take before asking for a contribution.

Aim of the guidance

Note that although this is guidance only (i.e. not the law), LAs must have regard to it when carrying out their duties and developing their transport policy for young people of sixth form age and those up to 25 years who have an Education Health and Care Plan (EHCP).

The aim of guidance, it says, is to reiterate its mission to improve social mobility for young people including providing education and training opportunities for them to gain qualifications and skills they need to reach their potential. The guidance states that LA transport policies play an important role in supporting young people’s participation in education and training. The focus of the guidance is on LAs to publish their transport policies so that young people and their parents can take account of this when choosing between different options. Note, however, that the situation is slightly different for young people with an EHCP as for them; their placement is named on their Plan. Before naming a placement on an EHCP there should always be discussion about the options with parents and the young person and the cost of transport should be considered alongside this. This is of course assuming that there is a choice of placement. In reality, there are often very options available for those looking for very specialist placements in particular locations.

Duty to continue in education from 16-18 years

The duty to participate full time in education or training and/or training through an apprenticeship (or employment provided this includes some training) is set out in Section 2 Education and Skills Act 2008. It is important to remember that the requirement falls on the young person and not the parent/carer. Enforcement does not form part of the current law and therefore the young person will not receive a sanction for non-participation.

The LA transport duties apply to all LAs in England in respect of arrangements for young people aged 16-18 years and those continuing learners up to 19 years. Under Section 509(AA) Education Act 1996 the LA has a duty to set its own transport policy, details of transport arrangements and financial assistance in respect of reasonable travelling expenses that the LA considers it necessary to make to ensure access to education or training for learners of sixth form age.

Furthermore Section 509(AB) (1) Education Act 1996 requires LAs to set out how their transport statement facilitates the attendance of young people with SEND. The guidance states that the transport needs of young people with SEND should be reassessed when a young person moves from compulsory schooling to post-16 education. Arrangements cannot be limited to those young people who had been assessed as having particular transport needs prior to the age of 16.  Local authorities should publish their transport policies on their “local offer” as required under the Children and Families Act 2014.

The point to note here is that whilst the duty to attend education or training falls on the young person, it is parents who will be asked to contribute towards any transport costs. This does not seem to sit well with giving young persons the autonomy to choose their own placement or to take responsibility for attending education/training.

What arrangements must LAs make?

Local authorities fund their transport responsibilities through the grants they receive from national government, which are not ring-fenced, and through generated income, such as Council Tax.

When considering the transport arrangements or financial assistance that is required, the LA must have regard to:

• The needs of those who would not be able to access education or training if no arrangements were made. When considering this, the needs of young people with special educational needs and disabilities (SEND) should be specifically considered and arrangements put in place which must be documented in the transport policy.
• The LA must ensure that young people have reasonable opportunity to choose between different establishments at which education or training is provided. As discussed above, this is questionable for young people with SEND as often there is little choice in provision that is suitable or available.  Furthermore, if there is consideration of the cost of transport, it is likely that this will narrow the choice even further.
• The distance from the learner’s home to placements.
• The journey time to access different placements. Young people should be able to reach their education or training without incurrent stress or strain or difficulty that would prevent them from benefiting from the education provided. This is particularly applicable to young people with SEND. The guidance states that best practice suggests that a child of secondary school age may reasonably be expected to travel up to 75 minutes each way to access learning and that LAs should apply similar expectations to young people of sixth form age. However, note that the situation is likely to be different for young people with SEND, many of whom have sensory processing difficulties and other medical conditions that would make a 75 minute journey too long. Each case must be considered individually. There should be no blanket policies.
• Local authorities can consider the cost of transport to the placement and may ask learners and their parents for a contribution to transport costs but when exercising their discretion they should ensure that any contribution is affordable and should take into account the likely duration of learning and ensure that transport policies do not adversely impact particular groups, eg young people with SEND are more likely to stay in education or training longer than their peers and any contribution sought from these families would need to allow for the fact that they may have to contribute for longer.

From some of our cases it is unclear whether LAs take this into consideration and whether contributions from parents/carers of young people with SEND is adjusted accordingly.

Transport Arrangements and the EHCP

Young people with an EHCP already have a placement named on their Plan at Section I. The guidance makes it clear that there is no entitlement to transport to and from this named provider and that transport should only be named in an EHCP in exceptional circumstances. See our article regarding recent case law in this respect – Staffordshire CC v JM (2006).

It should be noted that a learner with SEND may take longer to complete their learning or training and it would, therefore, be good practice for the LA to extend the arrangements for the provision of transport until the learner has completed their programme, even if that means that this is after the age of 19. The guidance also reminds LAs of their adult transport duties under Sections 508(F) and 308(G) of the Education Act 1996 as inserted by Section 57 of the Apprenticeships, Skills, Children and Learning Act 2009, with regard to the responsibilities for the 19-25 year age group.

The LA also has a duty under Section 508(G) to prepare a transport policy statement setting out any transport or other arrangements it proposes to make for that academic year in respect of adults aged under 25 years with EHCPs.

Complaints

Where parents do not agree with transport arrangements made by their LA, they should first complain and appeal to their LA. If this is not successful, they should consider contacting the Local Government Ombudsman or complain to the Secretary of State. The Secretary of State may direct an LA to make transport arrangements or provide reasonable travelling expenses where particular transport arrangements or financial assistance have not been included or are not covered by the LA’s transport policy statement.

You can read the full transport guidance here.