Supreme Court refuses permission to appeal in challenge to amended SEN transport policy

The Supreme Court has refused permission to 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 court’s latest permission decisions – published last week – revealed that a panel comprising Lord Hodge, Lord Stephens and Lady Rose refused permission on 13 July 2021, ruling that the application did not raise an arguable point of law of general public importance.

The background to the case was that 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.