[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> TYC, R (On the Application Of) v Birmingham City Council [2025] EWHC 623 (Admin) (13 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/623.html Cite as: [2025] EWHC 623 (Admin)

[New search] [Printable PDF version] [Help]

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

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

		Birmingham Civil Justice Centre Bull Street, Birmingham B4 6DS
		13 March 2025

HHJ Richard Williams:

Introduction and background

1. This is my judgment following the hearing of an application for judicial review against the Defendant's decision dated 24 August 2024 ("the Decision") regarding TYC's package of home-to-school transport. TYC brings this claim through his mother and litigation friend, KVD.
2. By order dated 22 January 2025. HHJ Worster granted permission on the papers and directed that the substantive application be heard on an expedited basis.
3. TYC, who was born on 7 January 2007, has an Education, Health and Care Plan maintained by the Defendant.
4. TYC attends a special school for pupils with autism. In support of an unrelated personal independence payment, the school provided a letter dated 23 September 2022, which stated that:

"….. [TYC] has an education health and care plan which will remain in place until he is 25 years old….. [TYC] is unable to travel independently and needs assistance to embark and disembark from transport. He currently has access to specially-provided home to school transport with a trained pupil guide to transport him safely from home to school each day.

[TYC] has confirmed diagnoses of:

1. Additional material on chromosome

2. Autistic Spectrum disorder

3. Learning disability

4. Oculomotor apraxia

5. Dyspraxia

6. Hypermobility

7. Bilateral leg and foot pain

8. Challenging behaviour

9. Anxiety

10. Obesity

[TYC's] conditions are long term and affect his mental health as well as his mobility and daily functioning.

…

[TYC] needs support with mobility due to his physical health needs. [TYC] uses a wheelchair to support his access to activities which require walking in excess of a short distance or short period. He is able to move around school with adult assistance but needs adult help and supervision in unfamiliar areas or for example to mount or dismount from the step on and off the school bus. This additional support helps him to maintain his balance and prevents him from falling and sustaining injury.

At present [TYC] never leaves his home without adult support….. in environments outside of the home, [TYC] is supported by two adults (2:1).

Daily functioning for [TYC] can be a challenge and he needs a significant amount of extra time to complete basic daily tasks. He suffers from fatigue due to his conditions and this affects his level of functioning at all time. It would not be safe for [TYC] to be at home alone. He is never left unsupervised due to his inability to perform daily tasks independently nor assess danger or risk.

……"

5. From 2018, and funded by the Defendant, TYC was transported to school by minibus with an escort.
6. On 7 January 2023, TYC turned 16 and was no longer of compulsory school age. The Defendant decided to withdraw the package of home-to-school support for the academic year 2023/2024, since there was no evidence that TYC could not be taken to school by his mother or another family member. That decision was successfully appealed and, on 1 August 2023, the Defendant reinstated the package of home-to-school support for the academic year 2023/2024 since it had a discretion to do so and was satisfied that there were "exceptional circumstances that would justify departing from the general policy."
7. On 11 March 2024, KVD applied for a continuation of the package of home-to-school support for the academic year 2024/2025.
8. On 28 June 2024, TYC was awarded a bus pass for the academic year 2024/2025. KVD appealed. The first appeal was unsuccessful. On the second appeal, which is the Decision subject to challenge, the Defendant decided "Your Stage 2 Appeal for Discretionary Travel Assistance has been upheld, and the Panel have decided that [TYC] can be offered a cash equivalent of a travel pass to the value of £315. Please note that this exceeds the value of the Council's 'standard' PTB." The reasons for the Decision were:

"The Panel thoroughly considered everything that was written in your appeal and supporting documents. They agreed that a travel pass cash equivalent was suitable for [TYC] in the current circumstances. The Panel also agreed that the Sixth Form Centre should be used to measure the Journey, rather than the main school site which had originally been used, and this made the journey shorter.

The Panel noted that the Motability car which has been provided on the condition that it is used to support [TYC's] transport needs. It is also noted the scheme also covers insurance, breakdown cover, Tax, servicing and MOT.

Although [TYC] does use a wheelchair, the Panel found that this was only occasionally based on the information contained in part C of his EHCP. The Panel therefore concluded that [TYC] could safely be taken to and from school in the Motability car.

Next, the Panel went on to consider whether it was reasonable to expect you to drive [TYC] to college. The Panel noted that although you referred to health problems, there was no independent evidence that demonstrated that this means that you could not take him to and from college. [TYC] does not have any school aged siblings. You indicated that the journey to and from college caused difficulty with your working hours. Although the statutory guidance 'Travel to school for children of compulsory school age, January 2024' was not directly applicable to [TYC's] Sixth form application, the Panel concluded that it was reasonable to apply the principles in paragraphs 49 – 54 and noted that the guidance stated that working patterns will not normally be considered good reasons for a parent being unable to accompany their child.

The Panel therefore decided that the original award of a travel pass was not suitable but suitable arrangements would include the cash equivalent value of a bus pass, which is reasonable to expect could be used by you to take [TYC] in the Motability Car or to make other arrangements to travel the 1.3 miles each way to college."

Applicable legal framework

9. Ss 509AA and 509AB of the Education Act 1996 requires local authorities to publish transport statements concerning persons of sixth form age.
10. The Defendant's published transport policy that applied at the time of the Decision was:

"Key Principles

…….

Budgetary considerations: The Council has a limited budget for the provision of travel assistance to those in education. Any discretionary decision about the provision of travel assistance will take account of this and the number and type of competing claims that are made upon it.

………

Parental involvement: Parents are expected to accompany their children to school or college where necessary until they turn 18 unless there is a good reason why it is not reasonable to expect them to do so.

Reviews of travel assistance: All grants of travel assistance will be reviewed at least once per year and in all cases where there is, or may be, a significant change in circumstances affecting eligibility for travel assistance (e.g. change in school or home address, change in personal or family circumstances, change in recipient's needs). Where the recipient of travel assistance has an EHC plan then this review will be undertaken at or following the annual review of the plan. Any changes to travel assistance following a review will be implemented from the beginning of the next academic term, or sooner by mutual agreement.

………

Part 3: Young persons aged 16-18 (sixth form age)

[20.] This part of the policy includes the Council's Transport Policy Statement which the Education Act 1996 requires it to publish each year, setting out what travel assistance is available, from the Council and other bodies, to facilitate the attendance of young persons of sixth form age receiving education or training at schools, FE colleges/institutions, 16-19 Academies, and certain other institutions maintained or funded by the Council.

[21.] The vast majority of young people do not receive or require travel support from the Council and, unless the circumstances are exceptional, the only category of young persons of sixth form age the Council will consider providing travel assistance for are those with an Education Health and Care Plan, a disability or learning difficulties. In considering whether to provide travel assistance the Council will have regard to the following:

The needs of those for whom it would not be reasonably practicable to attend a particular establishment to receive education or training if no arrangements were made;

The needs of those who are vulnerable to becoming not in education, employment or training (NEET) at the age of 16 or 17, or who have already become NEET;

The needs of young persons who are parents;

The need to ensure that persons in the Birmingham area have reasonable opportunities to choose between different establishments at which education or training is provided;

The Council's legal duties, including the duty to ensure that enough suitable education and training is provided to meet the reasonable needs of 16-18 year olds;

Distance and journey time from the student's home to establishments of education and training, the cost of transport there and alternative means of facilitating attendance at establishments;

The nature of the route or alternative routes which the young person could reasonably be expected to take;

Any preference to attend a particular educational establishment based on religion or belief;

The nature of the young person's special educational needs, disability or learning difficulty;

Anything said in an EHC plan about transport;

Whether there is a nearer institution which is suitable and can provide the same or similar qualification(s);

The best use of the Council's resources."

11. As observed by Underhill J (as he then was) in R (S) v EduAction A15 (Waltham Forest) [2006] EWHC 3144 (Admin), albeit in the context of a differently worded transport policy:

"[33] ……. The regime under ss 509AA and 509AB is deliberately one where there are no absolute obligations on local authorities to provide transport, even as regards children with special educational needs. It is clear, in particular from s 509AB(3), that the authority's policy is intended to have regard to a range of discretionary factors, including in particular – at (a) – the reasonable practicability of the child receiving education if no arrangements were made and – at (d) – the cost of the provision of transport. In those circumstances it seems to me that parents have obligations too. They should not be encouraged to believe that they should do nothing to help to get their children to school on the basis that if they do not the local authority will have to. (I do not of course say that that is Mr and Mrs S's attitude; I am speaking generally.) There is perhaps some parallel, although the specific legal issue was different, with the decision of the House of Lords in Rogers v Essex County Council [1987] AC 66, [1987] 1 FLR 411, where it was held that in the case of a school journey within statutory walking distance, parents would in certain circumstances be expected to walk their children to school. I appreciate that, as Mr S pointed out, in the case of disabled children their transport needs may not, unlike the case of children without a disability, get any less as they reach the age of 16. But the fact remains that the statutory rules and regime do change at that point. Children with disabilities or special educational needs cease at that age to get the transport provision that all children get, and they enter a different world where their parents may have to do more. I do not wish to be misunderstood on this point. There is no absolute rule that the parents of children over 16 who cannot travel to school on their own are expected to take them. What parents can be expected to do will depend on their circumstances. There will be cases where it is not reasonable to expect them to drive a child to school. Each case will turn on its facts."

The arguments

12. It is argued on behalf of TYC that the Decision is irrational as the Defendant failed carefully to assess TYC's needs or grapple with the practicalities of requiring his mother to take him to school. In short:

i) KVD is a single parent and is the sole breadwinner for the family. Her ordinary shift schedule means that she cannot take TYC to school every day if she is working;

ii) KVD has no support network and would need to give up her job to take TYC to school every day. That would have a significant impact on the family's financial situation and TYC's wellbeing;

iii) It is unclear what the Defendant expects KVD to do. Plainly she cannot give up or change her job as this would have a significant impact on the family's financial situation and TYC's wellbeing. This would cause an unreasonable amount of disruption. KVD's income is already reduced by her inability to take on overtime which, on average, accounted for a quarter of her hours worked. Continuing her weekend arrangement inflexibly puts her employment at risk and undermines her relationship with TYC, which is adverse to his wellbeing;

iv) The Defendant erred in proceeding upon the basis that it would be feasible for KVD to change her working patterns. The Defendant's failure to interrogate that assumption means that there was not the "careful and sensitive" evidence-based consideration that is required for a rational assessment of a young person's home-to-school-transport needs; and

v) The Defendant baldly asserts that TYC's application was "properly considered". Crucially the disclosed minutes do not record any consideration of whether TYC's situation is one in which the "normal" expectation that his mother should transport TYC is displaced. The Decision cannot be rational if the relevant assessment was not completed.

13. It is argued on behalf of the Defendant that:

i) Unlike for children of compulsory school age, the relevant statutory provisions do not confer any entitlement to school transport on children of TYC's age;

ii) Both case law and statutory guidance make clear that it is reasonable to expect parents to accompany their children to their place of education;

iii) Statutory guidance also makes clear that parental work commitments are not considered a sufficiently good reason to displace that expectation. The claim makes no mention of the statutory guidance on this in relation to children of compulsory school age, 'Travel to school for children of compulsory school age - Statutory guidance for local authorities'. The key part of this is as follows (emphases added):

"Accompaniment

[49.] A child will not normally be eligible for free travel to school on the grounds of their special educational needs, disability or mobility problem, or on the grounds that the route is unsafe, if they would be able to walk to school if they were accompanied. Where the local authority determines that a child would be able to walk if they were accompanied, the general expectation is that the parent will accompany them or make other suitable arrangements for their journey to and from school. A child will not normally be eligible solely because their parent's work commitments or caring responsibilities mean they are unable to accompany their child themselves, but local authorities must act reasonably in the performance of their functions.

[50.] In most cases, local authorities will not need to consider whether a parent would be able to accompany their child, but they should not have a blanket policy that they will never arrange free travel for a child who would be able to walk to school if accompanied. They must consider cases where the parent says there are good reasons why they are unable to accompany their child, or make other suitable arrangements for their journey, and make a decision on the basis of the circumstances of each case.

[51.] The circumstances that a local authority should take into account may include, but are not limited to, whether the parent has a disability or mobility problem that would make it difficult for them to accompany their child, and the parent's reasons for not being able to accompany their child or make other suitable arrangements.

[52.] Reasons such as the parent's working pattern or the fact they have children attending more than one school, on their own, will not normally be considered good reasons for a parent being unable to accompany their child. These apply to many parents and, in most circumstances, it is reasonable to expect the parent to make suitable arrangements to fulfil their various responsibilities (for example, their responsibilities as an employee and as a parent.)

[53.] Where a local authority determines that a child could not reasonably be expected to walk even if they were accompanied, they are eligible for free home-to-school travel regardless of whether their parent would be able to accompany them or make other arrangements for their journey.

[54.] We know it can be difficult for local authorities to make decisions in relation to children of secondary school age whose special educational needs, disability or mobility problem mean they could not reasonably be expected to walk to school unaccompanied. Other children of this age may normally be expected to walk to school unaccompanied which might, for example, enable parents to increase their working hours. When deciding whether it is reasonable to expect the parent of a child with special educational needs, disability or mobility problem to accompany their child to school, local authorities should be sensitive to the particular challenges parents of such children may face."

Although this guidance was issued in relation to section 508B, it is sensible and reasonable to take the same approach to transport for 16-19 year olds;

iv) The Defendant's own policy reflects all of this;

v) The Defendant considered the application on three separate occasions (in the initial decision and on the two appeals) such that the key point relied upon about KVD's work commitments was well understood and was given proper consideration;

vi) It is clear that the Defendant did not, as alleged, make any "unreasonable assumptions", or "proceed on the basis that it would be feasible for [TYC's mother] to change her working pattern", and nor was the Defendant under any duty to say what arrangements should be made;

vii) Working parents all over the country face difficulties and challenges in balancing their work and parental responsibilities and local authorities are not required to provide travel assistance unless they can explain how this should be done; and

viii) The wider context is also relevant. In the Defendant's area there are 1610 persons of sixth-form age, who have an EHCP. The cost of travel assistance can be substantial and the Defendant is in well-published financial difficulties. The Defendant is obliged to apply its policy fairly, and its decision in this case that there was not a good reason to displace the expectation of parental accompaniment was plainly rational.

Analysis and conclusion

14. The Defendant's transport policy for sixth form age children was, in summary, that:

i) such children will not, absent exceptional circumstances, be awarded discretionary travel assistance; and

ii) a parent's working pattern will not normally be considered a good reason for a parent being unable to accompany their child to school.

15. The Defendant's policy in this regard is not subject to challenge, and nor could it be in circumstances where:

i) There is no absolute obligation on a local authority to provide transport for sixth form age children even for children with disabilities or special educational needs;

ii) Budgetary constraints are a relevant consideration;

iii) Parents may have to do more when their children attain age 16;

iv) The general expectation is that the parent will accompany their child or make other suitable arrangements for the child's journey to and from school; and

v) A parent's working pattern on its own will not amount to exceptional circumstances justifying the award of travel support on a discretionary basis.

16. In addition, I consider that it would be unreal and wholly disproportionate to expect the Defendant to provide discretionary travel assistance unless it could explain how otherwise a particular child could be transported to school.
17. That said, local authorities must act reasonably in the performance of their functions. They should not have a blanket policy of never providing discretionary travel and must properly consider and engage with the reasons given by a parent as to why they consider that their child's particular circumstances are exceptional and justify an award of travel support to school.
18. In her stage 2 appeal (against the decision to award a bus pass), KVD stated (with my emphasis added):

"I am writing to inform travel assist that I totally disagree with the outcome first stage decision,the route is definitely not safe it's on one of the most busiest roads and routes and the bus stop is no where near the school so Google has definitely got that wrong there isn't a bus stop no where near the school,has I hope you all relised it's not at the main school,it's on ryland road.whete there isn't a bus that goes by there,also has medical evidence supports [TYC] a wheelchair user in the community you expect him to use one of the most busiest routes in Birmingham,the noise on its own will cause major trauma, getting on a bus where he doesn't know anyone will cause another trauma,if there's no space where's the wheelchair supposed to go ,has this bus is one of the busiest buses ,he can't communicate or understand what people mean,he can't have anyone near him ,so again another trauma to him,so your expecting a disabled person with all these medical conditions where evidence proves this ,to get to school this way,it will impact his quality of life and it wiil deparimental to [TYC's] life,and yes I know you all don't care that I work but I will lose my job because I'm a single parent with no family support,and I'm the only person [TYC] has,so yes im very upset and frustrated because all the evidence yoy have proves [TYC] cpmes under extreme circumstances,so from tbis email i wont this has proof i wont the appeal to go to second stage,also I won't to point out his planning and moving around for pip was the highest points you can get and iv proved that with the evidence so thst shows [TYC] can not get around safely and plan a journey.But i will be contacting the legal team now that are offering there services has they havr told me i have a good case."

19. Therefore, KVD was not saying that she would have to change her working pattern to accompany TYC to school but rather she would have to give up her job altogether because she was a single parent with no family support. The Defendant failed properly to consider/engage with those particular reasons when it stated:

"You indicated that the journey to and from college caused difficulty with your working hours. Although the statutory guidance 'Travel to school for children of compulsory school age, January 2024' was not directly applicable to [TYC's] Sixth form application, the panel considered that it was reasonable to apply principles in paragraphs 49 – 54 and noted that the guidance stated that working patterns will not normally be considered good reasons for a parent being unable to accompany their child."

The Defendant failed to consider whether, in the particular circumstances, it was reasonable to expect KVD, who was a single parent/sole earner, to give up work to accompany TYC to school. By disregarding this material fact, it rendered the Decision irrational.

20. It is also striking that in her application and appeals for the previous academic year, KVD had also stated that she was unable to take TYC to school, or make arrangements for others to do so, because she was a single working parent with no support network. Ultimately, the Defendant accepted that there were exceptional circumstances, which justified a departure from the general policy, and awarded a package of home-to-school support at least for that academic year. It is difficult to rationalise how, only some 12 months later, the Defendant had formed the view that there were no longer such exceptional circumstances and when faced with the same facts.
21. For these reasons, I consider that the Decision was irrational.

No substantially different outcome

22. Under section 31(2A) of the Senior Courts Act 198, the court is bound to refuse the grant of relief if it appears to the court highly likely that the outcome for TYC would not have been substantially different if the conduct had not occurred.
23. It is argued on behalf of the Defendant that, even if there was some deficiency in the Defendant's decision-making process, it is highly likely that the outcome would not have been substantially different and so the relief must be refused.
24. It is argued on behalf of TYC that the Defendant has failed to adduce any evidence to substantiate that the outcome would not have been substantially different.
25. In TYC's mother's witness statement dater 19 November 2024, it was stated that:

"[24.] My current working hours are 7am to 3pm. I work three shifts over a week. I have been with my employer for almost 18 years and I am a support worker. I am a single parent, and my sole income supports myself and [TYC]. I do not claim any benefits. If I was to give up my job, then this would leave [TYC] and myself in a very vulnerable position financially. I am fortunate that I own our home with no mortgage, but I have no other source of income to support us. I used to pick up overtime shifts for extra income, but this transport issue means I am not unable to do this anymore. I used to pick up approximately one extra shift a week, but it did vary from 2-3 hours to two full shifts (18 hours), depending on business need.

[25.] My employer has recently been taken over by new management and they are pushing me to take on more hours and change my shift pattern. I have been able to resist this so far. I have had to amend my work pattern to make sure [TYC] gets to sixth form, but this is not sustainable long-term. At present, I am working Saturday and Sunday for two of my shifts, so I can take [TYC] to sixth form 4 days a week. However, this does mean I need to try and ask favours from different friends to look after [TYC] during the weekend days when I am at work. For the sixth form day I am working, I must get [TYC] ready in the morning before I have to leave at 6:45am, I then ask a friend to drive him to sixth form in their car. This is the same friend, who [TYC] has known for years so he is comfortable with them. I take the Motability car to work so I can be home as soon as possible for [TYC] finishing sixth form. [TYC's] sixth form are currently dropping him off back home afterwards as a favour, as they agree the Local Authority's proposal is wholly unsuitable for him. The sixth form day ends at 2:50pm, and I finish work at 3pm, so the sixth form stay with him until I get back from work. I do not believe that this is a sustainable approach going forwards, nor is it the Sixth Form's duty to do this."

26. Therefore, it appears that, at least in the short term, TYC has been transported to school without his mother having to give up work and due to a combination of KVD changing her shift pattern and also making arrangements for others to help out. However, KVD also stated that these arrangements are not sustainable in the longer term.
27. I admit in evidence the letter from TYC's school dated 22 January 2025, which I consider relevant and which states:

"…..

Previously, [TYC] maintained an attendance rate close to 100%, demonstrating his dedication to his education and routine. However, since the cessation of travel assistance last July his attendance has sharply declined. [TYC] has regularly not been able to complete a full school week, and the disruptions to his routine have had a profound impact on his overall well-being.

……

.... the school's hours of operation clash with is mothers' work schedule making it exceptionally difficult for her to transport him to and from school consistently. This has led to increased stress within the family and contributed to [TYC's] disrupted attendance. As a temporary measure, the school has intervened to provide transportation support on occasion, but this is not sustainable or long-term solution. The current situation is placing undue strain on both [TYC] and his family, and it is critical that this matter is addressed promptly.

….."

28. Therefore, I cannot be satisfied that the outcome for TYC would not have been substantially different had the Defendant properly engaged with/considered KVD's stated reasons for exceptional circumstances justifying a departure from the general policy when there is evidence that:

i) KVD changed her working pattern to work weekends in order to be able to accompany TYC to school during at least part of the week;

ii) KVD asked others to help out during other times in the week;

iii) Despite KVD making those arrangements (and consistent with the expectation that "parents may have to do more"), TYC's attendance rate has sharply declined and even after the school itself intervened to provide occasional transportation, which support the school says is not sustainable in the long-term in any event; and

iv) It is not a binary choice between granting or withholding full home-to-school-transport. In other words, if properly considered, TYC's particular circumstances might justify a discretionary award of partial home-to-school transportation with the balance of TYC's transport needs being reasonably met through a combination of a change in KVD's working pattern and support from family/friends.

Overall outcome

29. The Decision is quashed, and the Defendant shall reassess the Claimant's home-to-school travel package.