EHCP / transport help

[User4532456734]

My ex and me have 50/50 care of the children, both children have EHCPs and receive home to school transport. We currently have a ‘dual’ contract and the taxi picks up from both addresses on alternate weeks.

The kids dad is moving soon - no choice, landlord served notice. The LA are saying that we won’t get a dual contract now as they have changed their policy to save money.

I’m trying to find out if there is any law about this but can’t find anything, the SEN code of practice says look at the local offers. I can only see that local policies ‘ususally’ only pick up from the child’s registered address. How is that fair to children whose parents have shared care?

Also, the LA have now responded further and said the kids aren’t eligible for transport anyway as we chose to send them to a school further away than a school that can meet their needs. They have been receiving the transport since September last year when the La emailed me and said they were eligible.

We sent them to the school named on their EHCPs. As far as I’m aware the other school was never asked if they could meet their needs and in my view they can’t anyway. As part of the last EHCP annual review a specialist ASD teacher said neither child would cope at the nearer school due to the size of it and the noise levels.

When I get a decision in writing I am going to challenge/appeal but I am not clear on what is being challenged. EHCP or a decision not to provide transport???

The EHCPs are final and in place - so the LA can’t backtrack and change the named school without a review can they?

If they accept the EHCPs as written then my understanding is they do have a duty to provide transport to the named school?

Is this an appeal against the transport decision which I could potentially issue a JR against to expedite matters? If I wait to go through a complaints process it could be weeks/months without transport.

Sorry this is long. Thanks for reading if you got this far.

Just to add - there was nothing written into the EHCPs about parents being responsible for travel arrangements.

Transport is separate from the EHCP. You can challenge the refusal to provide transport at all. The only time you would need to challenge the EHCP as well would be if the LA wrote about parental preference. See this SENTAS page about parental preference. Refusal to provide transport at all can (mostly, there are some cases that aren’t suitable) go down the pre-action letter then JR route.

You can see the statutory transport guidance here. Although some of it is inconsistent with the legislation and it cannot overrule that.

There are some situations where the LA can amend without a review or reassessment. Although they must proceed as if the proposed amendments were amendments proposed after a review (Reg 28 of the SEN Regs 2014). However, when moving placement, a review should typically be held. It isn’t meant for major amendments like that.

Moving on to transport to two different properties. This is less clear. The statutory guidance states there is no expectation to provide transport to both addresses, but some manage to successfully challenge it, especially if DC would not be able to attend school without.

@StrivingForSleep

Thanks very much, this is really helpful.

So I think I need a definite decision that they will not (well actually no longer) provide transport, then I can issue a pre action letter? Do you think the fact that they previously (last summer) said the children were eligible for home to school transport puts us nesting position?

There is nothing at all about parental preference in the EHCPs, it seems to me they are trying to apply this now with hindsight. If they were to change the named school now this would have such a big effect on the kids mental health/ anxiety - if it gets to it I think I need to argue that that’s unreasonable. Also, would I need to demonstrate that the closest school can’t meet their needs? Or as their current school is named is it assumed that is the best fit as the LA should have done their due diligence and costs analysis of transport before finalising the EHCPs?

Regarding the different addresses I am not sure if this will become a non issue now as the bigger issue is the LA saying they aren’t eligible now anyway. But if it does come back I think it’s unreasonable to change their mind now when it was already approved last summer?

Nesting position - should be puts us in a strong position 🤦‍♀️

The LA accepting responsibility for transport then withdrawing it can help your case. If the school is named in the EHCP without a caveat, you don’t need to now prove nearer schools are unsuitable. You won’t be able to jump straight to a pre-action letter. You should warn the LA of your intentions - JR is a remedy of last resort, so you need to show you have tried to resolve the situation first. SOSSEN’s information on JR is a useful read. But, as you say, the normal timescales of the complaints and appeals process mean they aren’t a suitable remedy because it takes too long.

Withdrawing transport to two addresses after agreeing to it can sometimes be unreasonable (in the legal sense). It really depends on the specifics of your individual case. Transport full stop is more straightforward and you can probably resolve that yourself/via a pre-action letter, but on the point of both addresses it might be worth contacting Gavin at SENTAS.

@StrivingForSleep
Thank you again!

I am currently drafting a letter as this morning the LA have said I need to apply to the Transport Exceptions Panel.
They have ignored the points I made about them attending the named school.

My main argument is as they have
already assessed the children as being eligible they cannot withdraw it unless they can demonstrate to me that the children are no longer eligible. I am asking them to put this decision in writing and will suggest than I will look to issue a pap - reluctantly as I would like to resolve it amicably - but pointing out the urgency.

This is so stressful 😩

I will also contact Gavin, I was looking at their website last night. I also found SEN Legal who have a website on YouTube all about transport so I'm learning lots!

Am I right in thinking that even if I am successful now then this issue will come up at a later date - next annual review of EHCPs they will likely try to put the caveat in then about transport??

The LA might not raise it at the next ARs. They could just be trying their luck. If they see they won’t get away with that, they may not pull a stunt at the next AR. But if they do, you would be able to appeal. Depending on specifics JR may be possible.

Hopefully that would be the case!

@StrivingForSleep
Just to update you - had an apology today from a director at the LA saying this has been badly handled and that the home to school transport will continue. So relieved - I did have to threaten JR though and it’s been really stressful this week. With the LA constantly changing the goal posts, trying to say the named school was wrong, I’d have to apply to an exceptions panel for means tested transport and so on….

I have it in writing now that both children should continue to receive transport on a dual basis as that’s what is in place currently.

Anyway, all’s well that ends well!

I’m really grateful for your help as a lot of the points I made when pushing back were from you, thank you ☺️

I am pleased to hear the LA has seen sense.