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Education Law – Interpretation of Legislation – Special Needs Transport

The case of Sim v Argyll and Bute Council [2006], involved the provision of transport to and from a special needs school for a pupil suffering from a number of conditions which affected his learning ability. A petition was brought by the mother of J, who was 12 years old at the time of the hearing. J was due to commence secondary education at Tarbert Academy in August 2006. In November 2002 the respondents opened a record of needs for J in terms of s.60(2) of the Education (Scotland) Act 1980 (“the 1980 Act”).

J suffered from a combination of difficulties including dyspraxia, developmental language delay and epilepsy. As a result, a typical school day left him very tired. One of the measures proposed by the respondents to meet J's special education needs was the provision of transport to and from school. J had received primary education at Tighnabruaich Primary School. A meeting was held at the primary school in 2005 to attempt to make plans for J's transition to secondary education. There was agreement at the meeting that a place should be sought for J at Tarbert Academy.

There was a school bus service from Tighnabruaich to Dunoon. However, it left before 8.00 am and returned after 5.00 pm, and J would not have been able to cope with a school day of that length. The respondents put in place arrangements for J to attend Tarbert Academy as from August 2006. The complaint was that they had refused to provide transport to and from that school.

In the petition, the primary ground for the relief sought was that, with regards to the Education (Additional Support Learning) (Scotland) Act 2004 (“the 2004 Act”), the respondents were under a duty to provide J with transport to Tarbert Academy. The 2004 Act only came into force in November 2005. J had not yet been assessed for the purposes of the 2004 Act by the time the petition was brought. The only such assessment which had been carried out with regard to J was his record of needs, which was carried out under the 1980 Act.

The petitioner placed reliance on the transitional provisions contained in s.30 of the 2004 Act. The respondents accepted that they were subject to the obligation outlined by s.30(4) of the 2004 Act. This obligation was to provide additional support for J which was 'no less than' that which was previously supplied to him under s.62(3) of the 1980 Act.

The petitioner argued that the additional support in place when the 2004 Act came into force included the provision of transport to and from school. The respondents argued that whilst that might have been so in connection with J's attendance at primary school, the record of needs said nothing about transport to and from secondary school. They submitted that there was no obligation on them, as the education authority, to provide transport for J to secondary school. They therefore said that there was nothing in terms of a transport provision with which the transitional provisions of s.30(4) could be connected.

Furthermore, they argued that the transport they had provided for J in the past was not part of their provision for his special educational needs under s.62(3) of the 1980 Act, but was provided in their discretion under s.51 of the 1980 Act and so was not caught by the transitional provisions of the 2004 Act.

It was held that the prayer of the petition would be granted for the following two reasons:

Firstly, the obligation on the education authority under s.62(3) of the 1980 Act was to make such provision for the child's special educational needs as had been identified as necessary in the record of needs. The wording of s.1(5)(d)(ii) of the 1980 Act was wide enough to include within the definition of 'special educational needs' any need resulting from a disability which 'either prevents or hinders [the child] from making use of [the] educational facilities'.

The fact that the discretion existed under s.51 did not mean that the provision of transport could not be made as part of the arrangements made to meet the special educational needs of the child under s.62(3). In the court's opinion, the provision of transport to and from school whilst J was at primary school was part of the provision made by the respondents for his special educational needs in terms of s.62(3) of the 1980 Act.

Secondly, it could not be said that the record of needs became 'spent' once the child reached an age where he had to change schools. Once a secondary school had been identified, the recognised obligation to provide transport between home and school had to apply to the new school as it did to the old. It was held that if the position was to be changed, a review of the situation under s.65A of the 1980 Act should have been carried out. This could now be done in conjunction with a coordinated support plan under the 2004 Act.

Until then, the transitional provisions in s.30(4) required the education authority to continue to provide additional support to J to an extent and of a quality no less than he received under the 1980 Act. It was held that this included transport to and from school.

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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.


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