England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/03/2013

Mr Justice Sales :

Introduction

1. This is an application for judicial review of the approach adopted by the Defendant ("the Council") in relation to making travel arrangements for eligible children to get between their homes and school pursuant to section 508B of the Education Act 1996. It is brought by the two claimant children, by their mothers as their litigation friends. The category of eligible children is set out in Schedule 35B to the 1996 Act. It includes children with disabilities and special educational needs who may experience difficulty in getting themselves to school. The claimants are both eligible children with special needs.
2. The background to the claims is disagreement between the claimants' parents and the Council regarding the extent of the obligation of the Council under section 508B, and in particular whether (as the claimants contend) the Council is obliged under that provision to make travel arrangements for the claimants all the way from their respective homes to school and back again or (as the Council contends) may instead in an appropriate case arrange for transport to be provided from a pick-up point some reasonable distance from a child's home.
3. The disagreement dates back to 2011. The Council originally proposed to provide transport from a pick-up point, with the practical effect that the claimants' parents would have to accompany them to get them from home to the pick-up point. The parents did not agree to this and made representations about the difficulties they and the claimants would face, maintaining that the Council's legal obligation was to arrange for transport all the way from and back to the claimants' homes. Legal proceedings were commenced. By concession by the Council in each of the claimants' cases, free transport was in the end provided door-to-door between home and school. Those arrangements are currently in place and will extend at least to the end of the current school year.
4. Meanwhile, the Council is in the process of reviewing its Policy for Travel Assistance for Children and Young People, and a final draft of a new policy to be issued by the Council in conjunction with five other local authorities in West London is shortly to be considered by the cabinet of the Council and is expected to be adopted. The travel arrangement options in that document include, in the case of eligible children, "A seat on a vehicle suitably adapted as necessary to transport the pupil to the appropriate education provision from home or where appropriate and suitable in the context of the child's needs an agreed meeting point."
5. In the light of these developments, at the outset of the hearing I addressed with counsel for the parties the question whether the application for judicial review was academic. As it seemed to me, the option set out in the proposed new Policy, with its reference to "an agreed meeting point", did not contemplate that the Council would have the ability to insist upon transport from a pick-up point other than the child's home if the parents of an eligible child did not agree to that. Mr Edwards for the claimants, however, submitted that there remained live between the parties important issues of principle turning on the interpretation of section 508B as to whether a local authority such as the Council has a power in any case to insist on transport from a pick-up point other than the home. He submitted that, despite the terms of the proposed Policy, the Council had made it clear by its arguments in the proceedings that it did still maintain the position that in an appropriate case it had the power under section 508B to arrange transport to school for an eligible child from a pick-up point a reasonable distance from the child's home, even if the parents did not consent to this. He also said that, against the background of decisions taken previously by the Council in relation to the claimants, there was a significant risk that the Council might seek to impose such a pick-up point travel arrangement on them when they applied for travel assistance between home and school in the next school year. Moreover, the claimants' cases had been selected as test cases, and there were other eligible children in the Council's area needing transport between home and school whose position would be affected by a determination by the Court of the issue of legal principle arising under section 508B.
6. When pressed on these points, Ms Scolding for the Council confirmed that the Council did continue to maintain that it had the power under section 508B in an appropriate case to arrange for transport for an eligible child from a pick-up point rather than from home, and that whilst the Council would seek to agree such an arrangement with the child's parents it reserved the right to impose that arrangement if it considered that the parents were acting unreasonably in refusing to agree to it. The Council could offer no guarantee that the travel arrangements for the claimants for the current school year, involving transport from home rather than a pick-up point, would be continued in future years.
7. I was left uncertain how the Council's position might be reconciled with the terms of the proposed new Policy, set out above. But however that might be, in light of Ms Scolding's answers I was persuaded that there is an issue of law dividing the parties with sufficient practical impact on their position and the position of other eligible children in the Council's area that the application for judicial review, seeking declarations as to the extent of the Council's obligations under section 508B, could not be dismissed as academic.
8. The submissions for the claimants which I am invited to address, and which I consider I can usefully address, raise the following issues of law:

i) Does the phrase "home to school travel arrangements" in section 508B require in every case provision of transport between the child's home and school? The claimants submit that it does; alternatively,

ii) If section 508B permits the designation of pick-up points, does it permit the Council in any case to designate pick-up points (other than the child's home) which are imposed as opposed to consented to by the child's parents? The claimants submit that it does not.

9. Ms Scolding submitted that the Court should decline to consider these questions, on the grounds that the claimants and their parents had the ability to appeal to the Secretary of State to invite him to exercise his general default powers under section 497 of the 1996 Act. That provides that if the Secretary of State is satisfied that a local education authority has failed to discharge any duty imposed on it by the Act, he may make an order declaring the authority to be in default in respect of that duty and giving directions to enforce performance of the duty. Ms Scolding emphasised that judicial review is discretionary and that a court will not grant relief in judicial review proceedings where there is an appropriate alternative remedy available. She referred to R v London Borough of Brent, ex p. F [1999] ELR 32 and R v Essex County Council, ex p. EB [1997] ELR 327 and submitted that the availability of complaint to the Secretary of State to seek exercise of his general default powers in the Act is an appropriate alternative remedy which ought to be pursued in preference to judicial review.
10. I do not accept this submission, for three reasons. First, it appears from guidance issued by the Secretary of State (referred to below) that on the points of law raised by the claimants on this application he takes the view that they should be answered adversely to the claimants (that is, on the first issue he would give the answer "no" and on the second he would give the answer "yes"). In my opinion, where the supposed alternative remedy is by way of an appeal to a person who has expressed a firm view on the very question to be determined, the Court will not treat that as a satisfactory alternative procedure which should preclude its own consideration of the case. It is not reasonable to expect the claimants in this case to go to the Secretary of State for relief rather than coming to the Court in the first instance.
11. Secondly, the issues which are raised in these proceedings are pure issues of law and interpretation of statute, which the Court is the most appropriate body to determine. It is the Court which has primary responsibility for giving authoritative rulings on such issues, not the Secretary of State. The position in this case may be contrasted with that in a case such as ex p. EB, where the issue was whether a route to school was safe or not, and the Secretary of State (through his officials) was better placed than the Court to judge that issue.
12. Thirdly, the issues in these proceedings are of general significance for a potentially wide range of cases. What is sought is a general ruling on the law, rather than on its application in any individual case. Judicial review proceedings are therefore likely to be a more efficient way to resolve the issues so as to provide authoritative guidance across that range of cases than individual applications to the Secretary of State under section 497.
13. I have therefore concluded that it is right for the Court to consider the application for judicial review and to determine the issues identified by the claimants.

Section 508B of the 1996 Act

14. Section 508B provides:

"508B Local authorities in England: travel arrangements for eligible children

(1) A local authority in England must make, in the case of an eligible child in the authority's area to whom subsection (2) applies, such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made and provided free of charge in relation to the child.

(2) This subsection applies to an eligible child if–

(a) no travel arrangements relating to travel in either direction between his home and the relevant educational establishment in relation to him, or in both directions, are provided free of charge in relation to him by any person who is not the authority, or

(b) such travel arrangements are provided free of charge in relation to him by any person who is not the authority but those arrangements, taken together with any other such travel arrangements which are so provided, do not provide suitable home to school travel arrangements for the purpose of facilitating his attendance at the relevant educational establishment in relation to him.

(3) "Home to school travel arrangements", in relation to an eligible child, are travel arrangements relating to travel in both directions between the child's home and the relevant educational establishment in question in relation to that child.

(4) "Travel arrangements", in relation to an eligible child, are travel arrangements of any description and include–

(a) arrangements for the provision of transport, and

(b) any of the following arrangements only if they are made with the consent of a parent of the child–

(i) arrangements for the provision of one or more persons to escort the child (whether alone or together with other children) when travelling to or from the relevant educational establishment in relation to the child;

(ii) arrangements for the payment of the whole or any part of a person's reasonable travelling expenses;

(iii) arrangements for the payment of allowances in respect of the use of particular modes of travel.

(5) "Travel arrangements", in relation to an eligible child, include travel arrangements of any description made by any parent of the child only if those arrangements are made by the parent voluntarily.

(6) "Travel arrangements", in relation to an eligible child, do not comprise or include travel arrangements which give rise to additional costs and do not include appropriate protection against those costs.

(7) For the purposes of subsection (6)–

(a) travel arrangements give rise to additional costs only if they give rise to any need to incur expenditure in order for the child to take advantage of anything provided for him in pursuance of the arrangements, and

(b) travel arrangements include appropriate protection against those costs only if they include provision for any expenditure that needs to be incurred for the purpose mentioned in paragraph (a) in the case of the child to be met by the person by whom the arrangements are made.

(8) Travel arrangements are provided free of charge if there is no charge for anything provided in pursuance of the arrangements.

(9) Schedule 35B has effect for the purposes of defining "eligible child" for the purposes of this section.

(10) References to a "relevant educational establishment", in relation to an eligible child, are references to–

(a) in the case of a child who is an eligible child by virtue of falling within any of paragraphs 2, 4, 6, 9, 11 and 12 of Schedule 35B, the qualifying school (within the meaning of that Schedule) at which the child is a registered pupil referred to in the paragraph in question, and

(b) in the case of a child who is an eligible child by virtue of falling within any of paragraphs 3, 5, 7, 10 and 13 of Schedule 35B, the place other than a school, where the child is receiving education by virtue of arrangements made in pursuance of section 19(1), referred to in the paragraph in question. …"

Analysis

15. Section 508B is rather dense in its drafting. In my judgment, it is important to focus on the concept of "suitable home to school travel arrangements" in sub-section (1). That concept is to be interpreted in the light of the definition of "home to school travel arrangements" in sub-section (3), so as to read: "suitable travel arrangements relating to travel in both directions between the child's home and the relevant educational establishment in question in relation to that child."
16. Within this formulation, the "travel arrangements" do not have to cover the whole of the distance from the front door of the child's home to the school gate. The definition in subsection (3) does not say that the travel arrangements which constitute "home to school travel arrangements" are travel arrangements which cover the whole journey from home to school; they only have to be travel arrangements "relating to" travel in both directions between home and school. The phrase "relating to" is different from some other word or phrase which the drafter could have used, such as "covering" or "covering the entirety of" travel between home and school – which, by contrast, would indicate that the relevant travel arrangements constituting "home to school travel arrangements" had to cover the entirety of the journey, rather than just a part of it. The phrase "relating to" indicates a weaker form of connection between relevant travel arrangements and the child's journey between home and school than such an alternative formulation would do.
17. For the purposes of complying with the duty imposed by sub-section (1) – i.e. in those cases falling within sub-section (2) - the local authority "must make … such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made and provided free of charge in relation to the child." This means that the local authority must make travel arrangements relating to travel between home and school (i.e. travel arrangements which cover the whole or part of that journey), and must be satisfied that those travel arrangements are "suitable" for the purpose of facilitating the child's attendance at their school. As Ms Scolding submitted for the Council, the question of what travel arrangements are suitable for this purpose involves consideration of the circumstances of the particular case concerning both the abilities and disabilities of the child and the position of the parent, and what can reasonably be expected of them.
18. There are a number of features of the legislation which, in my view, lend strong support for this interpretation of section 508B:

i) The duty in sub-section (1) only arises "in the case of an eligible child in the authority's area to whom subsection (2) applies". Subsection (2) does not apply if there is a "suitable" free transport service provided by a person other than the local authority, including one which involves a pick-up point at a reasonable distance from the child's home. If there is, say, a public bus service which is free for school children which stops at a bus stop a reasonable distance from the home of an eligible child and also at a stop a reasonable distance from the school gate, that will be a travel arrangement provided free of charge by a person other than the local authority "relating to travel" between the child's home and school, so that the precondition in subsection (2)(a) is not satisfied. The question would then arise whether the alternative precondition in subsection (2)(b) was satisfied, namely whether it could be said that such a bus service does "not provide suitable home to school travel arrangements" for that child. That would depend upon whether it was reasonable to expect the child to be able to walk between the bus stop and his home, accompanied if need be by a parent. Since a local authority is under no duty under section 508B(1) to provide free home to school travel arrangements if there is, say, such a free public bus service which is suitable, it is difficult to infer that Parliament intended that the duty of the local authority under section 508B(1) should be more than to provide some equivalent substitute travel arrangements where no such public bus or other service is available – especially since the relevant test is expressed in the same language in subsection (1) and subsection (2)(b) ("suitable home to school travel arrangements"). This indicates that it is intended that in an appropriate case it may be lawful for the local authority to establish free travel arrangements with a designated pick-up point a reasonable distance from the child's home, just as the bus-stop in the example could be a reasonable distance from the child's home;

ii) Mr Edwards submits that the word "suitable" in the phrase "suitable home to school travel arrangements" in subsection (1) relates only to the mode of transportation or arrangement provided, not to both the mode and extent of the travel arrangements provided. In my view, however, there is no warrant for limiting the application of the word "suitable" in this way. On a straightforward reading of subsection (1) together with the definition of "home to school travel arrangements" in subsection (3), the word "suitable" governs both the mode and the extent of the travel arrangements to be provided;

iii) Section 508C of the 1996 Act provides that, in relation to non-eligible children in its area, a local authority may make such "school travel arrangements" as it considers necessary for the purpose of facilitating their attendance at school. Section 508C(3) provides a definition of "school travel arrangements" which is closely similar to the definition of "home to school travel arrangements" in section 508B(3), as follows: "… travel arrangements relating to travel in either direction between [the child's] home and any relevant educational establishment in relation to the child, or in both directions". It was common ground that the school travel arrangements which a local authority could make for non-eligible children under section 508C could involve transport (e.g. by bus) with a pick-up point at a reasonable distance from the child's home. That must be on the basis that the definition of "school travel arrangements" in subsection (3) allows that (as in my view it clearly does). The same meaning should be given to the nearly identical working of section 508B(3) (in particular, to the words "relating to travel" between home and school as used in both provisions);

iv) Eligible pupils for the purposes of the duty in section 508B are defined by reference to Schedule 35B to the 1996 Act. Wide categories of pupil are covered by Schedule 35B, including, for instance, children living within the statutory walking distance of school (two or three miles, depending on age) who are unable to walk the whole distance to school by reason of their special educational needs, disability or mobility constraints (paragraphs 2 and 3) and children living within the statutory walking distance but unable to walk to school in safety because of the nature of the route (paragraph 4). But it may well be possible for such children to get to school without difficulty if they only had to walk to a designated pick-up point close to their home for free transportation to school. If every such child had a right to insist on being picked up from home, considerable public expense might be involved going well beyond what would be involved in setting up more efficient travel arrangements with designated pick-up points. In my view, the width of the categories of children covered by Schedule 35B and the absence of any real need on the part of very many of those children to be transported from the front door of their homes (rather than from a pick-up point reasonably close to their homes) to school indicates that Parliament intended only that actual needs for assistance should be met by the local authority, not that there should be a legal obligation in each case (absent the agreement of parents to the contrary) to collect each child from the front door of their home;

v) Section 444(1) of the 1996 Act provides that a parent is guilty of an offence "If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school". Section 444(4) provides for a defence if the parent proves that the school is more than a stipulated walking distance from the child's home and "that no suitable arrangements have been made by the local education authority for … his transport to and from the school." The test of "suitable arrangements" mirrors the language of section 508B(1) and is intended as a compendious reference to such travel arrangements as the authority might make under either section 508B or section 508C. This again suggests that in the context of the 1996 Act the question of suitability of travel arrangements covers both the mode and extent of the arrangements to be put in place;

vi) In reviewing the effect of the predecessor of section 444 (section 39 of the Education Act 1944) and section 508C (section 55 of the Education Act 1944), the House of Lords in Devon County Council v George [1989] 1 AC 573, at 606E-607A per Lord Keith of Kinkel (with whom the other members of the Appellate Committee agreed), indicated that the general standard in this area is that "the parent must do those things which are reasonably practicable to be done and which an ordinary prudent parent would do." In the context of the question whether "suitable home to school travel arrangements" have been made for the purposes of section 508B(1), I think that the fact that Parliament is taken to expect a parent in ordinary circumstances to act in such a way is also indicative of an intention that it can be lawful for a local authority to make travel arrangements, in an appropriate case, involving a pick-up point a reasonable distance away from the child's home;

vii) This view is also supported by other authority on sections 39 and 55 of the Education Act 1944, Surrey County Council v Ministry of Education [1953] 1 WLR 516. That case concerned whether a local authority which arranged to pay for free transport for children who lived outside the statutory walking distance of three miles from their school only to get them from home to within the three mile perimeter from the school (from where they would be expected to walk or pay for their further transportation to school) had complied with its duty under section 55 to provide suitable travel arrangements between home and school. Lynskey J held that the local authority had not complied with its duty, because it had not arranged to provide for transport to the school, as required. He held that the local authority's scheme to pay for transport stood in substitution for it providing transport itself and should be co-extensive with the authority's obligation to provide transport, and said that the scheme should "cover the cost of taking the child by public transport from a point reasonably near his home to a point reasonably near the school – I do not say to the school door, but reasonably near thereto" (p. 521). This judgment was cited with approval in Devon County Council v George at p. 601E-F, where Lord Keith referred to the obligation in section 55 as an obligation "to provide free transport for the child all the way from home to the vicinity of the school" (p. 601F – it is relevant to bear in mind that the Surrey County Council case was primarily concerned with travel to school; I do not think that Lord Keith was intending to say that the obligation was to provide transportation from the front door of a child's home, but only to the vicinity of the school). The ruling in the Surrey County Council case has been accepted as governing the extent of the obligation of a local authority to provide free travel arrangements to school for a very long time, and there is no clear language in sections 508B and 508C to indicate that Parliament intended that there should be any departure from the extent of that obligation under those successor provisions to section 55 of the 1944 Act.

19. Sections 508B and 508C were introduced into the 1996 Act by Part 6 of the Education and Inspections Act 2006. They were only brought into force on 1 September 2007. Shortly before that, the Secretary of State issued Home to School Travel and Transport Guidance ("the Guidance") pursuant to sections 508A and 508D of the 1996 Act, to which local authorities are required to have regard in exercise of their functions under, inter alia, sections 508B and 508C. In my view, the Guidance - issued as it was contemporaneously with the bringing into force of sections 508B and 508C and as part of the regime to govern travel arrangements for school children - constitutes contemporanea expositio by the relevant Government Department regarding the operation of those statutory provisions and is a legitimate aid to their proper interpretation: see Bennion on Statutory Interpretation, 5^th ed., pp. 702-706 and 711-712.
20. Part 2 of the Guidance deals with travel arrangements under sections 508B and 508C. Paragraphs 52 to 55 deal with the topic of suitability of arrangements. They do not support the distinction suggested by Mr Edwards in relation to section 508B(1) between suitability of the mode of transport and suitability of the extent of the travel arrangements made. Both issues are covered together in the guidance. Paragraph 52 states that suitable travel arrangements "must enable an eligible child to reach school without such stress, strain or difficulty that they would be prevented from benefiting from the education provided." Paragraph 55 states in terms that "the duty to make travel arrangements does not necessarily imply a door to door service", and emphasises the need to ensure that children are not required to walk unreasonably long distances. In my view, the Guidance supports the interpretation of section 508B set out above.
21. It follows from this interpretation of section 508B that it is potentially lawful for a local authority to arrange for an eligible child to be transported to school via a pick-up point at a reasonable distance from the child's home, if it considers that such home to school travel arrangements are "suitable". A local authority is not in every case obliged to arrange transport for an eligible child direct from the child's home to their school.
22. There may well be debate in individual cases whether transport arrangements established with a pick-up point other than at the home of an eligible child are "suitable", as required by section 508B(1). That is a matter of judgment, and it is primarily for the local authority to decide. It is only obliged to make such travel arrangements "as they consider necessary" to secure suitable home to school travel arrangements for an eligible child.
23. Where a parent disagrees with the judgment made by the local authority, they may be able to appeal under that authority's own internal procedures (in the case of the Council, there is currently an internal appeal procedure and that will continue under its proposed new Policy) and can seek to have recourse to the Secretary of State to invite him to exercise his general default power under section 497 of the Education Act 1996 to give directions to the authority or to have recourse to the Court to claim judicial review.
24. The interpretation of section 508B and analysis above also show that Mr Edwards' alternative submission cannot succeed. Mr Edwards fastened in particular on subsection (5), which defines "travel arrangements" as including travel arrangements made by a parent of the child "only if those arrangements are made by the parent voluntarily". Mr Edwards submitted that if a local authority decides that a child requires transport by, say, bus or taxi to get to school, the obligation under section 508B(1) would be to provide such transportation from the child's home, unless the child's parent voluntarily agreed to other travel arrangements such as involved the child walking to some other pick-up point. This would mean that in the event of dispute between parent and local authority, the authority could not seek to impose on the child and parent a pick-up point other than the child's home.
25. In my view, this interpretation of section 508B is flawed, because section 508B(1), read with section 508B(3), does not require a local authority to make "travel arrangements" (as defined in subsections (4) to (6)) for the entirety of the child's journey between home and school: see paras. [15]-[17] above. The obligation under section 508B(1) is only to make "suitable home to school travel arrangements", and those may comprise "travel arrangements" for only part of the journey, provided that those "travel arrangements" are suitable for the purpose defined in section 508B(1). The "travel arrangements" which comprise the "suitable home to school travel arrangements" may be only, say, a free bus journey provided by the local authority from a pick-up point reasonably close to the child's home to the child's school, with the question whether those travel arrangements are "suitable" covering the issue whether it is reasonable to expect the parent of the child to get them to that pick-up point. This is the relevant analysis even though, if a parent did not voluntarily consent to walk with the child to the pick-up point, that part of the journey would not itself constitute a "travel arrangement" as defined in the section.
26. I would therefore answer the questions in para. [8] above as follows:

i) The phrase "home to school travel arrangements" in section 508B does not require provision of transport between the child's home and school in every case; and

ii) Section 508B permits the Council in an appropriate case to designate pick-up points (other than the child's home) which are imposed as opposed to consented to by the child's parents.

Conclusion

27. For the reasons set out above, this application for judicial review fails. The parties are at liberty now to address submissions to the court directed to the question of relief. But it may well be that the judgment makes declaratory relief unnecessary, and that it will not be helpful or appropriate to issue such relief.