House of Commons - Education and Skills

Select Committee on Education and Skills Third Report

3 Charging

45. The draft Bill amends legislation to allow local authorities to charge for transport where it was previously required to be provided free of charge. Where a child of compulsory school age lives at least three miles from school (or two miles for under eights) transport must still be made available but it may now be charged for. The draft Prospectus states:

"Scheme applications must set out local charging policies, making it clear how many pupils will be charged, and the level of any proposed charges. Detailed proposals must be included in local consultations. Any charges must be affordable and pitched at a level that does not produce an increase in car journeys to school. Our legislation will protect children from low income families who attend their nearest suitable school, but LEAs must ensure that their charging policies comply with the European Convention on Human Rights (ECHR)."[56]

Who pays?

Protected children

46. The Bill makes provision for a category of 'protected children' to be exempted from charges for school transport. The definition of 'protected children' is set out in the draft Explanatory Notes:

"Pupils from low income families may not be charged for travel arrangements made under the scheme […] For England such 'protected' children are defined as those eligible for free school lunches and milk under section 512ZB(4) of the Education Act. For Wales the definition will be set out in Regulations. It will also encompass pupils eligible for free school lunches and milk."[57]

We consider that an exemption based on ability to pay is generally speaking a fairer charging policy than one based on an arbitrary cut-off distance. But we have serious reservations about the adequacy of 'free school meals' as a definition for the category of protected children. Many families eligible for free school meals do not claim their entitlement. In these cases, local authorities may have difficulty in ascertaining who is eligible for free transport. Free school meal entitlement is available to those whose family income is below £13,200 per year. Families whose income is just above this level, particularly large families, may be significantly disadvantaged by the new regime and the 'cut-off' income level may cause just as much inequity as the arbitrary limits of walking distances.

The draft Bill proposes that those children eligible for free school meals should also be entitled to free transport and that pilot schemes will be able to extend the entitlement to other groups. We urge the Department to ensure that the schemes it approves give proper consideration to income-based eligibility for free transport. It is our view that a more sophisticated entitlement than 'free school meals' should be developed using alternative measures such as the working tax credit.

Special educational needs

47. Approximately half of the expenditure associated with home to school transport is spent on transporting children with special educational needs (SEN), yet the draft School Transport Bill makes little reference to provision for these pupils. A paragraph in the draft Prospectus encourages local authorities to place pupils with special educational needs on 'mainstream' transport wherever possible:

"Scheme applicants must describe how their proposals cater for pupils with SEN. Our presumption is that wherever possible pupils with SEN will share transport with their peers, but that where this is not possible LEAs will make every effort to identify ways to combine journeys and—if possible—share vehicles and schedules with social services or health service transport."[58]

This is the only reference to SEN transport provision in the draft Prospectus.

48. Local government representatives told us that authorities would be keen to move towards 'mainstream' transport in order to contain the growing costs of SEN transport. Councillor Ramon Wilkinson of the LGA said:

"I think you can take it as read that every pilot will be looking at the question of special educational needs transport, because you are right, it is growing like Topsy every year. Most LEAs are struggling with these sort of costs […] as far as Cambridgeshire is concerned, we have 1,200 special needs pupils who use home-school transport, mostly through the private sector, so we have taxis and private vehicles. That is quite an expensive service."

Councillor Tony Page added:

"…there is sometimes a false view that somehow all children with special educational needs cannot use public transport, and that is wrong. Indeed, there is a case for saying that it is sometimes part of the "therapy" to encourage the use of public transport, so clearly there is scope within these pilots to address that."[59]

49. We took evidence on the practicality of transporting more pupils with special educational needs on 'mainstream' transport. For those children with less severe needs, it is desirable that transport be shared as an aid to education and inclusion, a move supported by many campaigning groups. In their evidence, the RNIB "welcome the suggestion that more children with SEN and disabilities will travel with their peers. This will hopefully reduce the barriers between disabled and non-disabled children".[60] We learnt from those working with children with special educational needs that moving children onto 'mainstream' transport is often a complex task. Mike Hirst, Headteacher of Ravenscliffe School, Calderdale, described his school's 'independent' travel programme:

"We have developed over the last two or three years a system whereby we now have students making their way to school. Five years ago that would not have happened. You cannot just say to them on Friday, 'On Monday you are on getting public transport'. It is a twelve-month process to educate them, to build them up to that with support from staff doing daily transport activities to get them there, and that is costly."[61]

The shift to 'mainstream' transport for children with special educational needs should not erode individual provision where it is necessary for those pupils with severe needs or particular conditions, which make sharing transport particularly inappropriate. Equally, it cannot be assumed that pupils can simply be switched from taxis to public buses overnight—substantial support must be provided.

50. The draft Bill recommends that local authorities attempt to integrate school transport for SEN pupils with other transport services such as health and social services. There is a long-standing duty on local authorities under the Transport Acts to co-ordinate passenger transport, social services and education transport to ensure value for money. Tim Davies, Chairman of ATCO, told us that integration of services is already happening:

"I think I could now estimate that about 70% of all councils who have a school transport responsibility are actually planning and managing the delivery of school transport through a co-ordinated transport management unit […] It certainly is across school transport, local bus services procurement, social services and many others. Many of the more forward looking authorities are now working with their local health trusts to incorporate health transport as well."[62]

School travel schemes may well find that there are savings to be made through the integration of passenger transport services and by placing SEN pupils on 'mainstream' transport. These are not 'quick-fix' solutions or appropriate to all circumstances; these schemes will require careful development and planning.

51. We have received representations from a number of SEN campaign groups, that pupils with special educational needs should be exempted from charges and included in the category of 'protected children'. Steve Broach, Assistant Director, Parents' Autism Campaign for Education (PACE) said, "we see transport as like any other type of provision for children with special educational needs, and the principle that applies to SEN provision is that where a child has needs that are additional to or different from those of children of a similar age, that provision should be provided by the local education authority" and David Congdon, Head of External Affairs, Mencap pointed out that "very often the families of disabled children are worse off financially than people generally".[63]

52. Representatives of SEN campaign groups also argued that if free transport were withdrawn from pupils with special educational needs, this could produce the unintended consequence of an increase in SEN statements. SEN statements allow for the specification of transport needs considered essential for the child to attend school. If transport needs are specified, LEAs are under a legal obligation to provide that transport free of charge. This requirement would be unchanged by the draft School Transport Bill. If parents believe that they are likely to be forced to pay for transport under a pilot school travel scheme, this could lead them to press for a statement of special educational need in order to ensure they continue to benefit from free transport. The net result of this would be to increase the number of statements issued or to increase the number of statements specifying transport, both consequences that would run counter to current DfES policy, which aims to reduce the number of SEN statements and for statements not to specify transport.[64]

The provision of transport for pupils with special educational needs is not given adequate consideration in the draft School Transport Bill and its supporting material. SEN transport should be a priority for school travel schemes set up under the terms of the Bill. Schemes will have to offer a complex range of transport facilities to suit the broad spectrum of need covered by the term 'SEN' and costs will necessarily increase as services get better at providing for pupils with the highest level of need. We agree with Mr Congdon in his assessment that the Bill does not primarily concern itself with the details of SEN transport and thus treats it in a manner that could produce unintended and detrimental consequences: "…if we were starting from scratch, you could integrate the transport side very clearly within the statutory framework for special educational needs. We are not though. We have got a Bill that is trying to do something else".[65] Whether guidance is produced as part of this Bill or in a separate SEN strategy document, the Government should set out LEAs' responsibilities in regard to pupils with special educational needs and parents' entitlement more clearly.

Distance

53. The charging regime proposed by the draft Bill states that charging for bus fares could result in an expanded service, transporting not only those children who live beyond the statutory walking distances, but also those who live within it and are currently being driven to school. Issues of fairness and cross-subsidy arise where this model is adopted, particularly in rural areas. As Steven Salmon, Operations Director, Confederation for Passenger Transport, explained:

"It seems to us there is a paradox in the Bill in that the areas where there is a large proportion of people travelling and, therefore, potentially the largest yield from a scheme, if it were put in, are not the areas where school run congestion is the biggest problem. In a county like Devon, which I know reasonably well, you might want to yield some money from charging people from the rural areas but spend it all on measures in Exeter, but that might not be considered fair or reasonable."[66]

The way in which the revenue gained from transport charges is spent will be specific to a local area. The Department should be alert to local conditions which may create inequities.

54. The preservation of the requirement for LEAs to provide transport beyond the statutory 'walking distances' in the draft Bill appears intended to provide a safeguard for those children who live a long way from school But under the terms of the draft Bill, LEAs may have difficulty in determining the extent of this commitment. For example, LEAs may wonder how long into the school term a seat on a bus must be kept available if it is not claimed, in order to ensure compliance. Questions such as this may well cause difficulties in network planning and management.

55. The Committee took evidence both in favour of and against the preservation of statutory walking distances, whether at the current limits of two miles for under eights and three miles for older children, or at some other distance which more accurately reflects the distances children are prepared or allowed to walk in the modern world. Tony Neal, Headteacher of De Aston School, Market Rasen, a school in a rural location, argued that an entitlement to free transport beyond set walking distances should be preserved:

"The substantive change which the Bill produces is the ability to charge and we do believe that although a lot has been said about those people who live less than three miles from school very little has been said about those who live more than three miles from school. Three miles might not be the right cut-off, that might be out-of-date, but fundamentally we believe there should be a safeguard by which free transport is guaranteed to the parents of all pupils who do not have a school within X miles of them; and X may have to be less than three."[67]

Equally, there is a good argument to be made that children living much closer to school should be expected to walk or cycle. The problem in setting rigid distance criteria is that individual local circumstances can always be found where exceptions need to be made. We recommend that the pilot schemes set up under the draft Bill investigate the setting of local walking distances. At the conclusion of the travel schemes, the Department should consider the possibility of setting revised statutory limits, taking into account age, the safety of the route and the time it would take to walk.

The effect of charging on car use

56. The draft Bill aims to strike a balance between generating revenue to expand services by charging for transport and creating a disincentive to bus use due to the expense. The draft Prospectus states that "any charges must be affordable and pitched at a level that does not produce an increase in car journeys to school."[68] Other witnesses have criticised this idea. Martin Ward, Deputy General Secretary, Secondary Heads' Association said, "If you want to encourage people to use buses, do not charge them for it."[69]

There have been mixed results where charging for buses has been introduced. A number of yellow bus schemes have proved popular despite the price.[70] However, these schemes have operated in targeted areas and have also attracted a proportion of children onto buses where they previously travelled by foot or by bicycle. In contrast, where charges have been introduced for post-16 transport without changes to the quality of services, bus use has declined significantly in some of these authorities. It is the aim of the pilots to demonstrate whether or not charging regimes can produce revenue and improve provision. We would not wish to prejudge negatively the results of these pilots. Our evidence suggests that an improvement in the level and quality of service is necessary for charging to succeed. A simple overnight increase in costs is likely to cause unacceptable increases in car use. Schemes proposing the introduction of charging should be carefully evaluated and monitored to measure their impact on car use.

Charging and school choice

Diversity and mobility policies

57. The existence and quality of home to school transport provision is a factor many parents take into account when making applications for their children to attend a particular school. Successive Governments have attempted to introduce more parental preference into the admissions system, but concordant adjustments to the transport system have rarely, if ever, formed part of their policies. Clearly, the expansion of parental preference presents the prospect of increased mobility and travel as more and more children attend a school that is not simply their nearest.

58. The draft Bill's Regulatory Impact Assessment states that current school transport legislation acts as a barrier to parental choice for families who cannot afford to send their children further than the local school: 'effectively there is less parental choice for children from low income families, who are less likely to have a car available for the school run or to be able to meet the cost of bus fares'.[71] It thus explicitly claims to promote parental choice in the admissions system.

If more parents chose to send their children to the local school, it would be reasonable to expect a corresponding decrease in home to school transport distances. The Secretary of State for Education and Skills has said that the main aim of the draft School Transport Bill 'is the encouragement of people to go to their local neighbourhood school and, therefore, to travel less in the whole approach, which is a question of our other policies on quality of schools'.[72] The Secretary of State's interpretation of the Bill's objectives seems directly to conflict with Government policies on diversity of schools and parental preference, which increase mobility.

59. When we presented him with this contradiction, the Minister in charge of the Bill, Mr Stephen Twigg MP, told us:

"Clearly there is a tension there. I think there is a tension rather than a contradiction between the policies, because we have made very clear that we want to ensure that all of the schools are good enough that someone who wants their child to go to the local neighbourhood school will be happy for their child to go to the local neighbourhood school. The reality is that for most parents that is what they want, but there will be those who want to make other choices, for example, faith schools, and then I think we need to have a system that has sufficient flexibility in it to enable those choices to be exercised by parents. Does more choice mean that it is more likely that children will travel a bit further? Overall, yes, I think it does mean that, but I am not sure it means it on quite the scale of the increase we have seen over the last 20 years in the car use to school."[73]

Not only did we detect a 'tension' in the Government's policy initiatives, we also discovered a 'tension' within the Bill itself. The partial Regulatory Impact Assessment claims that the Bill will tackle the existing lack of choice for low-income families who cannot afford home to school transport costs, yet the draft Prospectus simply states 'Our legislation will protect children from low-income families who attend their nearest suitable school'.[74] The Explanatory Notes accompanying the draft legislation explain that "Pupils from low income families may not be charged for travel arrangements made under the scheme unless suitable arrangements are made for the pupil to attend a school nearer his home".[75] The draft Bill makes no legal requirement for children from low-income families to receive free transport to any school which is not their nearest school. It is therefore hard to see how the Bill will extend parental choice to low-income families.

Faith schools

60. Although the draft Bill does not require pilot authorities to provide transport to any school other than the nearest available school, it does encourage LEAs to satisfy parents' preference for a denominational or, in Wales, a Welsh-medium school wherever possible:

"Provided it is economic and practical to arrange for them to attend the school of their parents' choice, LEAs should ensure that transport arrangements support the denominational or linguistic preference their parents have expressed."[76]

Despite this assurance, representatives of faith schools told us that the introduction of charges proposed by the draft Bill would make it harder for parents to choose a denominational education for their children and would result in a limitation of parental choice across the board. Furthermore, those pupils previously transported free of charge by bus might be more likely to travel by private car if charges were imposed, assuming their parents had the financial resources to do this.[77] Rev. Canon David Whittington, National School Development Officer for the Church of England, said that this would make it harder for Church schools to resist what he termed "the drive to the middle-class".[78]

61. Representatives of the Catholic Education Service and of the Church of England also argued that subsidised home to school transport for pupils attending their schools was a right enshrined both in legislation and in custom. The "dual system" of education funding, which emerged from the Education Act 1944, saw the Churches paying 15% of their schools' costs (now reduced to 10%) and school place planning that sited faith schools so as to cover the largest catchment area possible. When school transport legislation was drawn up in 1944, a specific clause allowing for the discretionary provision of transport to faith schools was inserted as a corollary of this system. Discretionary free transport has been provided in many areas for over sixty years.

62. As school transport legislation stands now and as it would remain after the passage of the draft Bill in its present form, there is no legal requirement to provide subsidised transport to a faith school which is not a child's local school. Many of our witnesses expressed the erroneous, but widely-held belief that the draft Bill would require transport to be provided to a child's 'nearest suitable' school. This gives undue prominence to the process by which the suitability of a school is determined. In fact, the wording of the draft legislation simply requires "suitable arrangements" to be made for transport to the child's "nearest school".

63. Currently, there is a trend towards the reduction of discretionary transport provision as more and more local authorities seek to recoup at least part of their costs by charging for transport to denominational schools.[79] Nevertheless, given the long-standing existence of such transport in many areas, the withdrawal of an existing subsidy would no doubt cause an outcry in this politically sensitive area—one that could potentially result in a legal challenge.

Human rights

64. The draft Bill's Prospectus identifies a risk of discrimination where some families are charged for transport that is provided free of charge to others. It advises that LEAs:

"…must ensure that if pupils from low-income families whose parents adhere to a particular faith or philosophy, and who have expressed a preference for a particular school as a result of the religious or philosophical beliefs (or in Wales because of the language of instruction), are treated differently from other pupils from low-income families, the different treatment does not amount to discrimination which cannot be objectively justified. So LEAs must consider carefully the position of these pupils. Provided it is economic and practical to arrange for them to attend the school of their parents' choice, LEAs should ensure that transport arrangements support the denominational or linguistic preference their parents have expressed."[80]

65. This advice to LEAs has a legal basis. Article 14 of the European Convention on Human Rights guarantees that enjoyment of the human rights set forth in the Convention must be secured without discrimination on any ground. Although the Convention does not require LEAs to provide free school transport, if an LEA chose to do so, Article 14 would prohibit this being done on a discriminatory basis.

66. The Committee heard evidence that some LEAs have provided free transport to enable children to attend denominational schools in preference to a closer non-denominational school but that they have refused to provide transport to enable children to attend a non-denominational school, in preference to a closer denominational school. Mr Ian Abbott, a parent from Lancashire, told us that his daughter, an atheist, did not wish to attend the local Christian denominational school, but wished to travel to a school further away with no denominational affiliation. Although the local authority generally provided subsidised transport to denominational schools on the grounds of faith, it refused to provide transport to a non-denominational school on the grounds of atheism.[81] Mr. Abbott challenged this decision as amounting to discrimination. Mr. Abbott's case is still to be resolved, but his experience suggests that some LEAs have misunderstood the statutory position and may have provided free transport on a discriminatory basis.

The Committee recognises that there are no 'secular' schools: all schools must hold a daily act of worship. Nevertheless, some parents are strongly of the opinion that a denominational school would not be appropriate for their children and prefer to place them in a school with no such affiliation. A parent who expresses a strong philosophical view that a denominational education would not be appropriate for their child is in a similar legal position to one who expresses a strong preference for denominational education. Guidance issued to LEAs should clarify that different treatment in this case could amount to discrimination.

In some respects, the guidance provided to LEAs in the Prospectus may even have added to the existing confusion over the requirement that free school transport should not be provided on a discriminatory basis. In particular, paragraph 22 concludes by stating that "LEAs should ensure that transport arrangements support the denominational or [in Wales] linguistic preference […] parents have expressed". This does not include "philosophical preference", thereby implying that LEAs need not provide equivalent arrangements for parents wishing to send their children to non-denominational schools. In order to reduce the potential for discriminatory practices, and to clarify the legal situation under the Human Rights Act, guidance to LEAs must make clear that where transport arrangements exist to support parents' denominational preferences, they must also cater for strongly held philosophical preferences.

Some witnesses expressed concern that those families living within a pilot area would benefit from transport provision denied to those just across a local authority border. In such a case, although one family would have access to services denied to another, no single public body could be shown to have discriminated against those in its area. However, the proposals within the draft Bill would also enable a single LEA to establish a pilot within only part of its area. If this led to people living in one particular part of a LEA having access to benefits to which others in the same authority did not have access, we could foresee the possibility of a legal challenge on the grounds of discrimination.[82] The material published with the draft Bill makes no mention of this possibility. The Government should investigate the possibility of Human Rights breaches based on pilots running in a restricted area of a local authority and issue guidance to LEAs based on its findings.

67. Given the evidence we have heard demonstrating confusion over the human rights implications of the provision of free school transport, we are disappointed by the statement in the Prospectus that:

"Where LEAs are unsure whether or not their proposed policies are ECHR compliant, we recommend that they seek a legal opinion before submitting their schemes to DfES or the Welsh Assembly Government for approval."[83]

The human rights implications of school travel schemes are complex and we have found evidence of existing confusion over legal obligations. In this context, the guidance given to LEAs in the draft Prospectus is woefully inadequate. It is unacceptable simply to state that local authorities should take legal advice before submitting their applications. The Government should provide clearer guidance to LEAs on those school transport practices which it considers would be discriminatory, particularly as the Secretary of State could be subject to legal action for approving any discriminatory scheme. The Government should pay heed to the recommendations of the Joint Committee on Human Rights on the draft Bill when drawing up this guidance.

56 Paragraph 21. Our evidence suggests that fares approaching £1 per child per day are likely to produce an increase in car use. (ST 5 and ST 21). Back

57 Paragraph 13. Back

58 Paragraph 27. Back

59 Q 344 Back

60 ST 6 Back

61 Q 367 Back

62 Qq 108, 110 Back

63 Q 353 Back

64 Department for Education and Skills, SEN Code of Practice, November 2001. Back

65 Q 374 Back

66 Q 163 Back

67 Q 188 Back