Post-16 transport for young people with special educational needs and disabilities (SEND) in England

Under the Education and Skills Act 2008, local authorities in England have broad duties to encourage, enable, and assist all young people to participate in education or training who are aged 13 to 19, as well as those aged between 20 and 25 with special educational needs and disabilities (SEND). See statutory guidance published by the Department for Education for more information.

Local authorities also have specific legal duties relating to transport to school or college for young people with SEND. These are set out in legislation, especially the Education Act 1996, and statutory guidance last updated in January 2019. To meet their duties, local authorities use funding from central government grants, which are not ring-fenced, and through income they generate themselves, such as council tax.

Who are young people?

Section 83 of the Children and Families Act 2014 defines a young person as over compulsory school age and under 25. Compulsory school age ends on the last Friday in June of the academic year in which a student turns/turned 16. This is usually at the end of Year 11.

Different transport duties apply depending on whether the young person is:

• of “sixth form age”, which means they are over compulsory school age and aged 16 to 19 or 19+ if the student began the course before their nineteenth birthday; or
• an “adult learner”, which means the student is over sixth form age.

The duty a young person is owed depends on their age when they started their current course.

16 to 19 students

While local authorities are required to arrange free school transport for some children of compulsory school age (5 to 16) with SEND, there is no corresponding legal duty that requires them to provide free transport for young people with SEND over compulsory school age.

This means local authorities have discretion to decide what transport and financial support is necessary – from travel allowances to the provision of a shared minibus – to help young people with SEND attend school or college. When making decisions, local authorities consider the needs of their population, local transport infrastructure, and the resources they have available. They must also act reasonably and take into account all relevant legislation and statutory guidance.

Transport policy statements

Section 509AA of the Education Act 1996 requires local authorities to publish a ‘Transport Policy Statement’. This will be available on the local authority’s website or it can be found through the postcode search at gov.uk.

The statement must explain the travel arrangements the local authority will make to facilitate attendance at education or training for young people, as well as how a young person or parent can appeal if they disagree with a local authority’s decision.

Statutory guidance published by the Department for Education on post-16 transport states that local authorities must consider the needs of students with SEND, and set out the extent to which any arrangements will facilitate their specific attendance. Local authorities must consult with certain stakeholders when developing the statement, including young people and their parents.

Parental contribution to costs

Transport arrangements are unlikely to be free for young people of sixth form age, and local authorities may ask students and their parents for a contribution to the cost. When exercising their discretion in this area, page 12 of the post-16 transport statutory guidance states local authorities should:

• ensure any contribution is affordable for learners and their parents;
• ensure there are arrangements in place to support families on low incomes;
• consider the likely duration of learning. For example, young people with SEND are more likely to remain in education or training longer than their peers and so the local authority should be aware such families may have to contribute for longer.
• target any financial support on those young people and families most in need.

The statutory guidance also explains it would be “good practice” not to require a contribution to costs for a young person of sixth form age if it is likely they would be eligible for free transport under the adult transport duty (see below for more information on this duty).

Students with Education, Health, and Care plans

Young people with an Education, Health, and Care (EHC) plan will have an institution named in their plan, but there is no entitlement to transport to and from this institution. The statutory guidance states transport should only be named in an EHC plan in “exceptional circumstances”, with any support considered in line with the local authority’s post-16 transport policy.

19+ students

Through the adult transport duty, local authorities are required to provide free transport for certain adult learners (young people over sixth form age). They have the discretion to pay some or all of the reasonable costs of transport for other adult learners.

Transport policy statements

Local authorities have duties under section 508G of the Education Act 1996 to publish a transport policy statement specifying any travel arrangements and support for adult learners with EHC plans. Local authorities must consult with further education colleges and other stakeholders about these arrangements and how they carry out their duties towards adult learners.

Duty to provide free transport

Page 7 of the statutory guidance on post-16 transport states that the intention of the adult transport duty is to ensure:

Those with the most severe disabilities with no other means of transportation are able to undertake further education and training after their 19th birthday to help them move towards more independent living.

Under section 508F of the Education Act 1996, if it is “necessary” for a local authority to provide transport to an adult learner, such as through a specialised vehicle or minibus, so that they can attend their education setting, there is a duty for this to be provided free of charge.

Two purposes determine whether the local authority will consider transport provision necessary for an adult learner:

• To facilitate attendance at:
  • further or higher education institutions maintained or assisted by the local authority
  • institutions within the further education sector.
• To facilitate attendance at institutions outside the further and higher education sectors where the local authority has secured the provision of education or training and boarding accommodation.

The Independent Provider of Special Education Advice (IPSEA), a charity that specialises in SEND law, has said that since local authorities have a duty to secure the special educational provision set out in an adult learner’s EHC plan, this may strengthen any arguments about the necessity of transport provision.

Discretion to pay transport costs

Pages 39 to 40 of the statutory guidance on post-16 transport explains that if an adult learner’s requirements are for a personal travel budget, mileage allowance, or public transport pass, then this does not need to be provided free by the local authority because they have not put the travel arrangements in place.

In circumstances where the local authority decides not to provide transport for an adult learner, they still have discretion to pay all or part of their reasonable travel expenses.

Appealing decisions about transport

In the first instance, complaints and appeals about post-16 transport decisions and policies must be taken up with the local authority. Local authorities should publish how the appeals process works as part of their transport policy statement. The statutory guidance on post-16 transport says that it is “good practice” for this to be a two-stage process:

• stage one being a review by a senior officer
• stage two being a review by an independent appeal panel

There is no legal requirement for local authorities to follow this process, but most do. The guidance goes on to explain that if the two-stage appeals process does not lead to a satisfactory outcome for a young person or their family, they may be able to complain to the Local Government and Social Care Ombudsman. This is a free service, and more information is available in a Commons Library constituency casework article.

If the matter is serious and time-sensitive, families may want to get legal advice about making a judicial review claim. This considers whether decisions made by public bodies were made in a lawful, fair, and reasonable manner. The Commons Library briefing paper Legal help: where to go and how to pay may be of use.

The SEND charities IPSEA, Contact, and SOS!SEN have helplines that can provide advice and support to families about transport issues, including appealing decisions made by local authorities. Every local authority in England will also have a SEND Information Advice and Support Service (SENDIASS), which is a free, impartial, and confidential service offering information to young people and their families. Local SENDIASS services can be found using the postcode search on the website of the SEND charity Kids.

Support with transport costs

The 16 to 19 Bursary Fund provides financial support, including with travel costs, to help young people remain in education. There are two types of bursaries:

• Bursaries for defined vulnerable groups, including for students in receipt of disability benefits.
• Discretionary bursaries which education providers award using policies they set.

Students aged 19 and over could also get a bursary if they have an EHC plan. Adult learners on a further education course and facing financial hardship may also be able to get Learner Support, which can help with travel costs.

Information about locally available support, such as concessionary travel passes offered by transport providers, will be set out in post-16 transport policy statements. These are available on local authority websites or through the postcode search at gov.uk.

Footnotes