Archived decisions

REGULATORY COMMITTEE B: 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 relevant legislation is contained in Section 509 of the Education Act 1996 (as amended), attached as (Appendix 1) and Section 444 of the Education Act 1996 (attached as Appendix 2). The 1996 Act has been amended extensively by the Education and Inspections Act 2006, as summarised at the end of this paper.

2.2 The basic duty on a Local Education Authority (LEA) to provide school transport is set out in Section 509(1) of the 1996 Act:

"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."

2.3 The duty is therefore to facilitate the attendance of children at schools, but only where the LEA considers it necessary to do so. However, an LEA will be acting unreasonably where it does not consider it necessary to provide free transport in circumstances where parents would then have a defence to a prosecution for non-attendance under Section 444(4) of the 1996 Act on the grounds that the LEA has not made suitable arrangements for transport to and from the school, for boarding accommodation at or near the school, or for enabling a child to become registered at a school nearer to the parental home.

2.4 This obligation 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 Section 444(5) of the 1996 Act 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 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).

2.5 In R (Jones) v. Ceredigion County Council [2004] EWHC 1376 (Admin), the High Court confirmed that the effect of Section 509(1) combined with Section 444 is in practice to impose an obligation on the LEA to provide free transport to school to children who live outside the statutory walking distance. In other words, it is always necessary to make suitable transport arrangements under Section 509 if otherwise the sanction against truancy in Section 444 would be unenforceable.

2.6 As explained above, the statutory walking distance is measured by reference to the "nearest available route". The meaning of this phrase has been considered in a number of legal cases.

2.7 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. In summary:

(a) The mere fact that a route is dangerous for an unaccompanied child does not mean that it is unavailable.

(b) A route will be available even if the child would need to be accompanied along the route, as long as it is reasonably practicable for the child to be accompanied. LEAs may therefore take into account parents' capacity to accompany their child (see George v Devon County Council below).

2.8 In addition, the case of R v. Hereford &Worcester City Council ex parte P (1992) 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) but only the general nature of the provision had to be specified there was no obligation to specify the maximum duration of the journey.

2.9 It was held in R v. Vale of Glamorgan County Council ex parte J (2001) that an LEA was entitled to refuse to pay for transport to school where there was a suitable school within walking distance.

2.10 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.

2.11 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.

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

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

2.13 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.

2.14 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;

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

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

2.16 In George v. Devon County Council (1988), 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".

2.17 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.

Recent Changes

2.18 The school transport provisions contained in the Education Act 1996 have been amended substantially by the Education and Inspections Act 2006. In broad terms, the intention behind these changes is to extend the role of LEAs in supporting access to schools through improved travel arrangements, particularly for children from low-income families.

2.19 Part 6 of and Schedules 8 and 9 to the 2006 Act insert into the 1996 Act a range of new sections and schedules in relation to school travel: see in particular new Sections 508A-E, new Schedules 35B-C, and new subsections 444(3A-F). The new provisions are extensive and complex, but can be summarised as follows:

(a) By new Section 508B, LEAs in England must make such arrangements as they consider necessary to secure that suitable home to school travel arrangements are made free of charge for an "eligible child" of compulsory school age in their area for the purpose of facilitating the child's attendance at his or her relevant educational establishment. This duty does not apply where suitable free travel arrangements are already provided to the child by persons other than the LEA (such as, for instance, a school or local transport body).

(b) New Schedule 35B defines the meaning of "eligible child" by reference to a range of categories. These categories include:

(i) children with special educational needs, disabled children and children with mobility problems, who are registered at a school within the statutory walking distance of home, but where no suitable arrangements have been made by the LEA to enable the child to register at a school nearer to his or her home and where, having regard to the child's special needs, disability or mobility problems, the child cannot reasonably be expected to walk to school;

(ii) children registered at a school within the statutory walking distance of home, but where no suitable arrangements have been made by the LEA to enable the child to register at a school nearer to home and where, having regard to the nature of the routes which the child could reasonably be expected to take, the child cannot reasonably be expected to walk to school;

(iii) children outside the walking distance, where no suitable arrangements have been made by the LEA for boarding accommodation at or near the school and for enabling the child to register at a school nearer to his or her home;

(iv) children aged 8 to 10 registered at a school more than 2 miles from the child's home, where the child is in receipt of free school meals or whose parents receive the maximum rate of Working Tax Credit, and where no suitable arrangements have been made by the LEA for enabling the child to register at a school nearer to home;

(v) children aged 11 and above registered at a school more than 2 (but not more than 6) miles from home, where the child is in receipt of free school meals etc., and where there are not 3 or more suitable qualifying schools nearer to home; in other words, these pupils are entitled to free transport to any one of their 3 nearest schools between 2 and 6 miles from the parental home;

(vi) children aged 11 and above registered at a school more than 2 (but not more than 15) miles from home, where the child is in receipt of free school meals etc., and where the child's parent has chosen that school for religious reasons and, having regard to the parent's religion/belief, there is no suitable qualifying school nearer to the child's home.

(d) By new Section 508E, LEAs in England may make a "school travel scheme" covering home to school travel arrangements for pupils of compulsory school age or below. Schedule 35C sets out detailed provisions on the content of such schemes. Where a school travel scheme is in force the LEA must give effect to the scheme, and the provisions outlined above (arrangements for eligible and non-eligible children) do not apply. The school travel schemes provisions are to be piloted in accordance with Regulations made by the Secretary of State.

(e) Section 82 of the 2006 Act amends Section 444 of the 1996 Act to reflect the other changes made to that Act. Essentially, the amendments ensure that a parent will have a good defence to the Section 444 offence if the LEA has failed to discharge its duty to make travel arrangements for eligible children under new Section 508B or its duty to make travel arrangements pursuant to a school travel scheme under new Section 508E. The amendments also make it clear that LEAs are not under a duty to make travel arrangements to schools in the private sector.

(f) By new Section 509AD, a LEA in England must, when exercising its travel functions, have regard to a parent's wish for a child to be educated at a particular school where that wish is based on the parent's religion or belief.

2.20 These provisions have come (or, in some cases, will come) into force on different dates. In summary:

(a) New Sections 508B and 508C (duty to secure suitable home to school travel arrangements) came fully into force on 1 September 2007.

(b) New Schedule 35B (setting out the categories of eligible children for free transport for the purposes of Section 508B) also came into effect on 1 September 2007.

(c) However, those paragraphs of Schedule 35B relating to children of 11 years and above from low income families are proposed to be brought into force on 1 September 2008, until which time they are excluded from the definition of "eligible child".

(d) New Section 508E (school travel schemes) came into force on 1 April 2007.

(e) The changes to Section 444 of the 1996 Act (offence of failing to secure regular attendance) came into force on 1 September 2007.

(f) New Section 509AD (duty to have regard to religion) came partially into force on 1 April 2007.

APPENDIX 1

Extracts from the Education Act 1996

Section 509
Provision of transport etc

(1) A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct, for the purpose of facilitating the attendance of persons [not of sixth form age] receiving education-

(a) at schools,

(b) at any institution maintained or assisted by the authority which
provides further education or higher education (or both), [or]

(d) ...

(2) Any transport provided in pursuance of arrangements under subsection (1)
[or (1A)] shall be provided free of charge.

(3) A local education authority may pay the whole or any part, as they think fit, of the reasonable travelling expenses of any person [not of sixth form age] receiving education [or training]-

(a) at a school, or

(b) at any such institution as is mentioned in subsection (1) [or (1A)],

for whose transport no arrangements are made under [either of those subsections].

(4) In considering whether or not they are required by subsection (1) [or (1A)] to make arrangements in relation to a particular person, a 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 or
training at a school or institution in which the religious education
provided] is that of the religion or denomination to which his parent
adheres.

APPENDIX 2

Education Act 1996

Section 444

Offence: failure to secure regular attendance to school of registered pupil

(1) If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence.

[(1A) If in the circumstances mentioned in subsection (1) the parent knows that his child is failing to attend regularly at the school and fails without reasonable justification to cause him to do so, he is guilty of an offence.]

(2) Subsections (3) to (6) below apply in proceedings for an offence under this section in respect of a child who is not a boarder at the school at which he is a registered pupil.

(3) The child shall not be taken to have failed to attend regularly at the school by reason of his absence from the school -

(a) with leave,

(b) at any time when he was prevented from attending by reason of
sickness or any unavoidable cause, or

(c) on any day exclusively set apart for religious observance by the
religious body to which his parent belongs

(4) The child shall not be taken to have failed to attend regularly at the school if the parent proves -

(a) that the school at which the child is a registered pupil is not within
walking distance of the child's home, and

(b) that no suitable arrangements have been made by the local education
authority ... for any of the following -

(i) his transport to and from the school,

(ii) boarding accommodation for him at or near the school, or

(iii) enabling him to become a registered pupil at a school nearer to
his home.

(5) In Subsection (4) `walking distance' -

(a) in relation to a child who is under the age of eight, means 3.218688
kilometres (two miles), and

(b) in relation to a child who has attained the age of eight, means 4.828032
kilometres (three miles),

in each case measured by the nearest available route.

(6) If it is proved that the child has no fixed abode, subsection (4) shall not apply, but the parent shall be acquitted if he proves -

(a) that he is engaged in a trade or business of such a nature as to require
him to travel from place to place,

(b) that the child has attended at a school as a registered pupil as regularly
as the nature of that trade or business permits, and

(c) if the child has attained the age of six, that he has made at least 200
attendances during the period of 12 months ending with the date on
which the proceedings were instituted.

(7) In proceedings for an offence under this section in respect of a child who is a boarder at the school at which he is a registered pupil, the child shall be taken to have failed to attend regularly at the school if he is absent from it without leave during any part of the school term at a time when he was not prevented from being present by reason of sickness or any unavoidable cause.

(8) A person guilty of an offence under [subsection (1)] is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[(8A) A person guilty of an offence under subsection (1A) is liable on summary conviction -

(a) to a fine not exceeding level 4 on the standard scale, or

(b) to imprisonment for a term not exceeding three months,

or both

(8B) If, on the trial of an offence under subsection (1A), the court finds the defendant not guilty of that offence but is satisfied that he is guilty of an offence under subsection (1), the court may find him guilty of that offence.]

(9) In this section `leave', in relation to a school, means leave granted by any person authorised to do so by the governing body or proprietor of the school.

06/2008

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