Archived decisions

APPENDIX 1

SCHOOL TRANSPORT APPEALS PANEL

SCHOOL TRANSPORT - AVAILABILITY OF WALKING ROUTES

STANDARD BRIEFING NOTE

1. Introduction

1.1 This paper provides a brief background to the County Council's policies and practices for the provision of free school transport by Local Education Authorities. A summary of the facts concerning the individual route under consideration by the Panel is circulated separately.

2. The Legal Requirements Applying to School Transport

2.1 The duty imposed upon a Local Education Authority (LEA) is to facilitate the attendance of children at schools and to ensure no parent can have a defence to a prosecution for non-attendance simply because the LEA has not made suitable arrangements either for transport to and from the school or for enabling a child to become registered at a school nearer to the parental home.

2.2 The obligation to provide transport only arises, however, where the child lives outside the walking distance between his or her home and the child's school. "Walking distance" is defined by the Education Act 1996 as meaning, in relation to a child who is under the age of 8 years, 2 miles (3.218688 km) and, in relation to a child who has attained the age of 8 years, 3 miles (4.828032 km), in each case measured by the nearest available route. The County Council has, however, introduced a slightly more favourable policy towards children in that the 3 mile distance will not be applied until the start of the academic year during which a child has his or her ninth birthday. (Education Committee 24 May 1995)

2.3 The meaning of the "nearest available route" has been considered in a number of recent cases.

2.4 In the case of Rogers v Essex County Council, the House of Lords stated that for a route to be available within the meaning of [Section 444 Education Act 1996] it must be a route along which a child accompanied as necessary can walk and walk with reasonable safety to school. It does not fail to qualify as "available" because of dangers that would arise if the child remained unaccompanied.

2.5 The legislation has recently been amended and the relevant provision is contained in Section 509 of the Education Act 1996 which now, as amended, reads:

"(1) A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary ... for the purpose of facilitating the attendance of persons receiving education at schools, ... at any institution within the further education sector ...

(2) Any transport provided in pursuance of arrangements under sub-section 1 shall be provided free of charge.

(3) ..........

(4) In considering whether or not they are required by subsection (1) above to make arrangements in relation to a particular person, the local education authority shall have regard (amongst other things)

(a) to the age of the person and the nature of the route, or alternative routes, which he could reasonably be expected to take, and

(b) to any wish of his parent for him to be provided with education at his school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres."

2.6 In addition, the case of R v Hereford - Worcester County Council provided that the LEA is under a duty to make such arrangements as it considers necessary for a child to reach school without undue stress, strain or difficulty as would prevent him or her from benefiting from the education the school has to offer (non-stressful transport).

2.7 Consequently, Section 509 together with the various legal rulings, must now be considered by local education authorities in defining their policies on the provision of school transport and in considering the eligibility of the individual pupils for free transport.

2.8 The authority should therefore have regard to the age, health and maturity of the child and the availability of an adult companion where these are relevant.

2.9 The terms of reference of the School Transport Appeals Panel are:

"To consider any appeals against a decision of the County Education Officer as to whether a walking route is available accompanied as necessary and whether there are any circumstances which prevent a child from being accompanied."

2.10 Accordingly, the Panel's role is to consider the question whether, where a child lives within walking distance of his or her school, the route which is shorter than the relevant walking distance is the "nearest available route", i.e. whether that route is one along which a child (of the age, health and maturity of the child concerned) accompanied as necessary can walk and walk with reasonable safety to school.

2.11 On the basis of children being accompanied, a "significant risk to safety" may include a traffic hazard which may be assessed and taken into account; for example, the following circumstances:

(a) where there is no defined footway or where the footway is so narrow that there is no adequate clearance between pedestrians and vehicles on the carriageway, allied with one or more of:

- a narrow carriageway;

- poor sight lines;

- no space for the pedestrian to step off the carriageway;

(b) where crossing facilities are justified, using the criteria laid down by the Department of Transport, and none is provided; or

2.12 The Authority must assess the safety of the route by the standard of a reasonably prudent parent.

2.13 In another case involving Devon County Council, the High Court took the view that:

"For an ordinary child whose home is within walking distance, but who applies under [Section 509(1) and (2)], a local education authority should consider:

(i) the age of the child and the nature of the route which he could reasonably be expected to take;

(ii) the question should the child be accompanied on the route or alternative routes? If the answer is "no", then normally there would be no case for free transport. If the answer is "yes", then:

(iii) the question whether the nature of the route or alternative routes is dangerous for the child if accompanied. If the answer is "yes", then normally there would be a case for free transport. If the answer is "no", then:

(iv) the question whether it is reasonably practicable for the child to be accompanied. If the answer is "no", then normally there would be a case for free transport.

This is a proper sequential approach for a Local Education Authority to adopt when considering an application under [Section 509(1)] from a child whose home is within walking distance of his school".

2.14 The House of Lords confirmed the position and determined that the Authority had been entitled to conclude that it was reasonably practicable for the boy to be accompanied and to take that into account in reaching its decision.

R3899

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