Court of Appeal rejects appeal over changes made by county council to SEN transport policy affecting 16-18 year olds

The Court of Appeal has dismissed an appeal over a council’s decision to amend its Special Educational Needs Home to School/College Transport Policy for the 2019/20 academic year.

The Cabinet at Leicestershire County Council decided in March 2019 to implement a revised version of its SEN Policy which meant that the transport it previously provided to children and young people (CYP) such as the appellant – who attend school, have SEN and are aged between 16 and 18 years old – would, save in exceptional cases, be replaced by money payments known as Personal Transport Budgets.

In the High Court, the appellant had challenged the revised SEN Policy on the basis that it:

i) unlawfully discriminated, on grounds of age, between CYP with SEN aged 16-18 such as the appellant, and pupils and students with SEN who are aged 5-16 or 19+, contrary to Article 14 ECHR read with Article 8 and/or A2P1;

ii) unlawfully discriminated, on grounds of disability, against disabled CYP aged 16-18 when compared to non-disabled CYP of the same age, again contrary to Article 14 read with Article 8 and/or A2P1; and

iii) had been adopted contrary to the public sector equality duty in section 149 of the Equality Act 2010.

Mr Justice Swift had dismissed all three grounds.

Permission was subsequently granted for an appeal but only on the first ground.

In Drexler, R (On the Application Of) v Leicestershire County Council [2020] EWCA Civ 502 the appellant argued that Mr Justice Swift had “erred in:

(a) Applying the 'manifestly without reasonable foundation' standard when assessing whether the age discrimination arising from Leicestershire’s SEN Policy was justified.

(b) Finding that such age discrimination was justified, to any standard, solely by reference to the objective of compliance by the defendant council with its legal obligations under the Education Act 1996, to the exclusion of other relevant statutory provisions.

(c) Concluding that such age discrimination was justified notwithstanding the existence of numerous flaws in the SEN Policy which clearly demonstrated the policy to be unreasonable and unjustified."

The Court of Appeal dismissed the appeal.

Lord Justice Singh found that:

• Swift J did not err in applying the manifestly without reasonable foundation test.
• The crucial point was not so much whether the "manifestly without reasonable foundation" test was the applicable test; it was “rather how the conventional proportionality test, even if that is the applicable test, should be applied given that the context is one in which a public authority is required to allocate finite resources and to choose priorities when it comes to setting its budget; and is also a context in which the ground of discrimination is not one of the ‘suspect’ grounds. In this context, it seems to me that there is no material difference between application of the conventional proportionality test, giving appropriate weight and respect to the judgement of the executive or legislature, and the ‘manifestly without reasonable foundation’ test.”
• Even if the correct test to be applied was not the one of manifestly without reasonable foundation, he had reached the clear conclusion that the council was entitled to adopt the policy which it did and that it did not act unlawfully in breach of Article 14. In particular, Singh LJ was convinced that the policy fell within the margin of judgement which was afforded to it even applying the conventional proportionality test.
• The council was entitled to take into account the difference in the statutory regime which applies to children under the age of 16, who are of "compulsory school age", and those above 16. “Although there are obligations to take part in some form of activity if not education for those who are aged 16-18, very importantly the sanction which Parliament has sought fit to impose in the former case is a potential criminal liability on the part of a child's parents: see section 444(1) of the Education Act 1996. In that context it is important to note that a potential defence is made available by the legislation to those parents who are able to argue that appropriate school transport was not provided by a local authority to their child: see section 444(3B) of the 1996 Act.”
• The policy could not be regarded as being unlawful under Article 14. “It did have a legitimate aim (the saving of public money)…. and the means chosen to achieve that aim complied with the principle of proportionality.”
• Mr Justice Swift had been entitled to reach the conclusion which he did overall as to the objective justification of the policy under Article 14. “He clearly had in mind the specific criticisms which he made, albeit in another section of his judgment at paras. 60-63, but this did not lead him to conclude that the policy lacked objective justification under Article 14. In my view that analysis was not only one that was available to him; it is the correct one.”

Lord Justice Newey and Lord Justice Bean agreed.

Responding to the ruling, Leicestershire said it would work closely with affected families and planned to introduce the new approach to transport funding in the next 18 months.

Cllr Blake Pain, the county council’s acting deputy leader, said: “Introducing a new policy was a tough decision for us to make. Families have understandably raised concerns and we’re committed to working closely with them over the next 18 months.

“We welcome today’s judgement and, as the leading judge acknowledged, the council has to make ‘difficult choices in straitened financial circumstances’.”