Cheshire East

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Council defeats judicial review challenge over changes to school transport and SEN transport policies

Leicestershire County Council has defeated a High Court challenge brought by a 17-year-old, severely disabled girl over proposed changes to its school transport policies.

The claimant in Drexler, R (on the application of) v Leicestershire County Council [2019] EWHC 1934 attends a special school for pupils with special educational needs. The school is some 13 miles away from her home.

At present, Leicestershire provides her with free home to school transport. The claimant is taken to and from school in a minibus, which also transports other children.

The claimant challenged the council's decision, taken by its Cabinet on 9 March 2018. At that meeting, the council's Cabinet considered a report prepared by its Director of Environment and Transport proposing revisions both to the council's Mainstream Home to School Transport Policy, and to its Special Educational Needs Transport Policy.

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The Cabinet resolved to accept the changes proposed, to come into effect from the beginning of the 2019-2020 academic year.

The changes would, save in exceptional cases, remove transport for eligible pupils aged 16-18 and instead provide their families with direct payments to arrange their own travel. The claimants said that many of those affected would as a result have to make a contribution towards it.

Following the hearing of the claim the council decided to delay implementation of the revisions to the policies until the beginning of the 2020-2021 academic year.

Three grounds of challenge were advanced:

  1. A claim of age discrimination that the SEN Policy unlawfully discriminated between, on the one hand pupils aged 5 to 16 and students aged 19+, and on the other hand pupils aged 16 to 18.
  2. A claim, also under the Human Rights Act, of indirect discrimination on grounds of disability. The claimant relied on ECHR Article 8 and/or Article 2 of the First Protocol, read together with ECHR Article 14, and on the principle in Thlimmenos v Greece (2000) 31 EHRR 41, applied in Burnip v Birmingham City Council [2013] PTSR 117. The claimant contended that the SEN policy discriminated on grounds of disability, because travel assistance for children aged 16 to 18 under the SEN Policy was insufficiently different to the annual grants paid to pupils aged 16 to 18 under the Mainstream Policy.
  3. The council's decision to adopt the new SEN Policy was taken without compliance with the public-sector equality "due regard" requirements under section 149 of the Equality Act 2010.

Mr Justice Swift rejected the claim.

In relation to ground 1 the judge said he considered the difference in treatment between pupils aged 16 to 18 and those of compulsory school age to be justified.

He said: “The additional benefit available under the Council's policies to the compulsory school age group reflects the statutory obligations in respect of provision of home to school transport owed to that group under the provisions of the Education Act 1996. The Council's policy of providing free transport to pupils of statutory school age pursues a legitimate objective; there is a rational connection between the objective and the policy; and the difference in treatment under the SEN Policy is the minimum necessary to achieve the objective of compliance with the home to school transport obligations under the 1996 Act.

“I consider, applying the manifestly without reasonable foundation approach, that the difference in treatment strikes a fair balance between the interests of the 16 to 18 age group and the general interest represented by the provisions in the 1996 Act for requiring a home to school transport for pupils of statutory school age.”

In relation to 19+ students Mr Justice Swift said that such difference as may exist between the 16 to 18 group and those within the scope of the paragraph 9.3 provision [of the SEN Policy, namely that free transport will be provided where ‘the council deems transport to be necessary to facilitate attendance…’] was justified by reference to the obligation imposed on the Council by section 508F (4) of the Education Act 1996.

In relation to ground 2 and the disability discrimination claim, the claimant argued that the SEN Policy was unlawful because the better provision made insufficiently reflected the different positions of those within the SEN Policy and those within the Mainstream Policy.

“My first reaction was that this was sufficient to bring the present case within the class of Thlimmenos claims. On reflection, I have concluded that this case does not disclose such a claim on grounds of the Claimant's disability,” the judge said.

“When the policies are considered overall, there is no sufficient similarity in the treatment afforded to the comparator groups so as to permit sensible consideration of a claim of indirect discrimination.”

He added: “My conclusion is that the differences of approach to each of the comparator groups means that it is not possible to identify any consistent practice applied across the groups, which affects the groups differently, and can be the subject of a justification inquiry.”

The judge said that he did not consider that the discrimination claim recognised in Thlimmenos goes beyond claims that are recognisably claims of indirect discrimination. “Contrary to the Claimant's submission, neither the judgment in Thlimmenos, nor the judgment in Burnip gives rise to any free-standing ‘… positive obligation to make provision to cater for … significant difference’.”

Mr Justice Swift said the claimant’s argument amounted to a form of positive discrimination, but it did not disclose a discrimination claim either under the Human Rights Act, or otherwise. “For these reasons, the claim of unlawful discrimination on grounds of disability under the Human Rights Act fails.”

The judge did, however, criticise the lack of information in the SEN Policy as to which matters, in what circumstances might produce Personal Transport Budgets (PTBs) either higher or lower than the amounts in the ‘ready reckoner’ document, describing this as “astonishing”.

Applicants such as the claimant’s father were simply left to guess as to how the council calculated the PTB. “The Claimant's experience of the PTB application process does not provide any assistance because although the Council decided that it would provide her with a PTB (when it still intended to introduce the revised policy for the 2019-2020 academic year), it did not state the amount of the PTB, and the correspondence I have seen gives no clue as to the approach that would have been taken to reach the final amount of that PTB.”

The judge said these matters did not affect this conclusion on the grounds of challenge but he added that they “ought to give the council pause for thought”. He added that what the SEN Policy says about the calculation of PTBs was “deeply unsatisfactory”.

On the third ground, the judge said that there were criticisms that could be made of the Equality and Human Rights Impact Assessment (EHRIA) produced by the council – it was "a little confusing" in places and the way in which questions were formulated tended to promote a lack of clarity in the answer.

However, the judge said he did not consider these criticisms to be sufficiently material to warrant a conclusion that the council had failed to comply with its section 149(1) obligation. “Looking at the EHRIA document overall, I consider it provides sufficient evidence that the Council did comply with the public sector equality duty.”

Commenting on the ruling, Blake Pain, county council cabinet member for environment and transport at Leicestershire, said: “We welcome the judgement, which dismissed the judicial review on all grounds.

“We were very aware of concerns raised by families, but were satisfied that we have followed proper processes in relation to our new policy for post-16 SEN transport arrangements."

Cllr Pain added: “We’ve already contacted parents to let them know about the ‘pause’ to the implementation of the new policy until September 2020 while we awaited the outcome of the judicial review.

"As part of this process we confirmed to most parents what type of transport assistance will be provided and we are working hard to confirm these arrangements ahead of the new academic year.”

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