One of the many niche areas I have built up over the course of my career is the overlap between education and social care. For a period of 18 months or so, I ran a mixed social care and education case load, and I was called in to advise on a few overlap cases after that.
One of the big issues that come up in this overlap is who funds the transport to and from and education placement. It arises most often with young people over mandatory school age, because that’s when the provisions in the Education Act 1996 change and local authority’s duties concerning home to school transport become more flexible.
It can also arise with younger children though, which often comes down to whether the child is attending their closest suitable school. The definition of suitable becomes very important in that situation. But I’ll stick to talking about young adults and adult learners as that is where my experience really lies. Which means I’m looking at people aged over 16.
Under s509AA Education Act 1996, local authorities have a duty to prepare a transport policy. That policy has to set out the transport arrangements it considers ‘necessary’ to enable 16-19 year olds to attend education. The same threshold of being ‘necessary’ is also used in s508F of the same Act, which relates to adult learners who have an Education Health and Care Plan.
There are lots of factors that the local authority can take into account when deciding what is ‘necessary’ in its area. That includes the cost, the different travel options and the distances involved. Which means that there is no guarantee that any particular young person will be eligible for local authority transport, although the needs of people with disabilities must be taken into account when policies are written. So they might be eligible, but the precise criteria are up to the local authority.
You might think that when coverage is a bit patchy, the legislation would provide more specific duties towards young people with disabilities in, perhaps, the Education, Health and Care Plan provisions. But you’d be wrong.
Transport is not specifically covered in the EHCP provisions. The transport guidance from the Department of Education says that transport should only be considered an educational need in ‘exceptional circumstances’. The case law takes a similar approach, in that it has stopped short of saying that transport can’t be an educational need. But the circumstances where it will be are limited to when the transport itself ‘educates or trains’ the person. It might be easier to argue that if the support provided enables the young person to learn how to travel more independently, such as having someone help them use public transport. A taxi door to door, seems more of a stretch.
That doesn’t mean that transport can’t be included in the EHCP. It might be possible to include it in the ‘care’ element of the EHCP. After all, accessing education is an area of need that can be eligible under the Care Act 2014. It can be difficult to secure though. In my experience education and social care departments guard their budgets like dragons on their hoards and are rarely willing to let each other touch a single penny. Arguments about which budget such funding should come from can drag on for months.
You might wonder why this is such a contentious issue. But if the individual has needs that require a specialist education establishment, the chances are that said establishment is not 20 minutes up the road. The chances that the individual will be able to tolerate public transport are also quite slim. So I was involved in cases where the cost of transport, with an escort, was more than the cost of a supported living placement. So it’s often more cost effective for the social care department if the person isn’t in education and instead is supported to gain independence skills through a care package.
This issue probably could have been resolved by not creating two regimes that might apply, and instead specifying one regime that does apply. Perhaps with consistent criteria.
That’s not what we have though.
Which means there are some cases where neither department provides funding for transport but both are still acting lawfully. But the clearer the evidence of a need for transport support, the more likely that transport will be provided.
Good luck!
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation.