Court of Appeal to hear challenge to changes to school transport policies

The Court of Appeal earlier this month granted the family of a Leicestershire teenager with special educational needs permission to appeal a High Court ruling dismissing their legal challenge over proposed changes to the county council’s school transport policy.

The council provides the 17-year-old, severely disabled claimant with free home to school transport. She 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.

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 Drexler family, whose daughter Kirstine is the claimant, said that many of those affected would as a result have to make a contribution towards it.

The changes have been paused until September 2020.

Three grounds of challenge were advanced in the High Court:

• A claim of age discrimination that the council’s 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.
• 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.
• 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.

However, in Drexler, R (on the application of) v Leicestershire County Council [2019] EWHC 1934 Mr Justice Swift rejected the claim in July 2019.

The two-day hearing will take place in the Court of Appeal on 20 and 21 February 2020 at the Royal Courts of Justice.

Steven Baylis, Associate at Irwin Mitchell, who is acting for the Drexler family, said: “Throughout this process the family have been very concerned about how these changes would affect Kirstine and many other young people across the region. Access to transport is often key in ensuring young people with a range of complex needs can have the education they deserve.

“It is welcome that we have now been given an opportunity to once again put the view of Kirstine and her family forward and ensure that their voices are heard on this matter.

“This family would rather not be in this position, and we once again encourage the local authority to work with families to rethink these changes.”