Staffordshire CC v JM (Special educational needs : Other) [2016] UKUT 246 (AAC): this case concerned responsibility for the costs of transport to an educational institution for a 21 year old with special needs, H, who was the subject of an Education, Health and Care (EHC) plan. The council considered that, because of H’s age, they did not have an absolute duty to make and pay for her travel to and from school, and that, under s.508F of the Education Act 1996, they only had to do so if they considered it to be necessary. The FTT ruled that the provision of transportation to access H's college programme amounted to a form of provision for H’s special educational needs (SENs); it also found that H’s needs were exceptional and that transport was accordingly an SEN.

The Upper Tribunal held, allowing the Council's appeal, that the FTT had erred in law by finding that transportation to and from school was either an SEN or special educational provision to meet such a need. It was clear from s.312 of the Education Act 1996 that an SEN must arise from a learning difficulty and that the learning difficulty must call for special educational provision. An analysis of case law, reinforced by s.15ZA of the Education Act 1996, showed that the need for home to school transport could not arise from a ‘learning difficulty’ in and of itself nor could home to school transport be classed as a form of special educational provision. The Council's duty to make arrangements for H if they considered that to be necessary having regard to all of the relevant circumstances was not a pure discretion. Although the question of what is necessary was a matter for them, in deciding that question they had to exercise their judgment judiciously and in good faith.  If they came to the conclusion that it was necessary, they had to make the necessary arrangements and the transportation must be free of charge. Paragraph 9.215 of the SEN Code of Practice could be wrongly interpreted (as it was in this appeal) to lay down a free-standing rule allowing transport needs to be included in an EHC Plan if exceptional circumstances could be shown to exist, despite s.508F of the Education Act 1996. If a Tribunal found guidance in the Code which flew in the face of legislative provisions, its duty was to apply the law as laid down by Parliament. Therefore, the FTT erred in law by deciding that it could bypass s.508F by relying on para.9.215 of the Code. It also erred in law in taking jurisdiction over transport where none existed. (23 May 2016)