School Transport

Tuesday 10th January 2012 Westminster Hall

12:59

[Nicky Morgan (Loughborough) (Con)]

It is a pleasure to lead today’s debate under your chairmanship, Mr Sheridan. After my question to the Minister in November on school transport, I am sure that he was not entirely surprised to see my name associated with the topic today, and I am pleased that he is here to answer this afternoon’s debate.

If all politics is local, nowhere does that seem to be more true than on the vexed issue of home-to-school transport. My interest in school transport policy arises from the decision of Leicestershire county council on the provision of a bus service to take pupils from the village of Sileby to Humphrey Perkins school in Barrow upon Soar in my constituency. A smaller number of families in Mountsorrel are also affected, but I will particularly focus on Sileby today. The objection in my case arises from the council’s view that the proposed walking route from Sileby to Barrow is safe and the strongly held view of almost everyone else that it is not.

Before I dwell on local matters, I feel duty bound to explore why the Minister and the Department for Education should have an interest in the subject despite the fact that the assessment of walking routes and decisions about the provision of home-to-school transport and on appeals made by affected families are all matters for local authorities. I firmly believe in localism and that local authorities and elected local members should make decisions about school transport routes—as long as they are made fairly and transparently.

National legislation, namely the Education Act 1996, as amended, governs the duties and powers of local authorities in England to provide home-to-school transport. In addition, case law on school transport and “Home to School Travel and Transport Guidance”, published by the then Department for Education and Skills in 2007, contains detailed guidance on the provision of school transport. In March 2011, the Department for Education commissioned a review of efficiency and practice in the procurement, planning and provision of school transport across England. Section 509 of the 1996 Act states:

“A local education authority shall make such arrangements for the provision of transport and otherwise as they consider necessary, or as the Secretary of State may direct, for the purpose of facilitating the attendance of persons not of sixth form age receiving education…at schools”.

The 1986 case of Rogers v. Essex County Council was one of the most significant brought in recent years on available walking routes. In its ruling, the House of Lords stated that for a route to be available within the meaning of the 1996 Act, it must be a route

“along which a child accompanied as necessary can walk and walk with reasonable safety to school”.

A route does not fail to qualify as “available” because of dangers that would arise if the child remained unaccompanied, but the Court also held that a route is available even if the child would need to be accompanied along the route, as long as it is reasonably practicable for the child to be accompanied. Local education authorities can therefore take into account parents’ capacity to accompany their child. Following that judgment, the law was changed so that in considering whether a local education authority is required to make arrangements in relation to a particular pupil, it shall have regard to, among other things, the age of the pupil and the nature of the route or alternative routes that they could reasonably be expected to take.

Hon. Members must forgive me, because I am afraid that I am showing my background as a lawyer, but the history is helpful. In George v. Devon county council 1988, the High Court took the view that

“For an ordinary child whose home is within walking distance, but who applies under”

the relevant section

“a local education authority should consider: the age of the child and the nature of the route which he could reasonably be expected to take; the question should the child be accompanied on the route or alternative routes? If the answer is ‘no’, then normally there”

is

“no case for free transport. If the answer is ‘yes’, then”

the next question is

“whether the nature of the route or alternative routes is dangerous for the child if accompanied. If the answer is ‘yes’, then normally there would be a case for free transport. If the answer is ‘no’, then: the question”

is

“whether it is reasonably practicable for the child to be accompanied. If the answer is ‘no’, then normally there would be a case for free transport.”

Consequently, local education authorities must consider section 509, together with the various legal rulings, in defining their policies on the provision of school transport and the eligibility of individual pupils for free transport. Pupils, parents and families are encouraged to turn to the Directgov website for views on national policy. It states on its home-to-school transport page that

“Safe walking routes are those which usually include road crossings, good lighting and well maintained pavements and footpaths. LAs are required to assess the suitability of walking routes.”

Having set out the national policy background, I will turn to my local issue. Leicestershire county council stated its view on the Directgov approach in a letter to me dated 20 July 2011 from the assistant director of transport:

“‘Safe’ is a very absolute term and it is not possible to guarantee that anything is absolutely safe, so it is an unreasonable stipulation. The law requires that a walking route be ‘available’ for a child accompanied as necessary by a responsible adult and it is this criterion that we apply.”

As I have mentioned, however, a route also has to be reasonably safe, and therefore the dangers of a particular route should be taken into account.

In February 2011, a Leicestershire county council scrutiny review panel reported to the council’s cabinet on the council’s home-to-school transport policy. The panel was asked to consider, first, how available walking routes are assessed and the appropriateness of the current method of assessment, and, secondly, what are known in Leicestershire as “historic exceptions” and whether such services are still justified. Historic exceptions are bus services provided free to children despite the route length being under the statutory distance and despite a route having subsequently been assessed as available for children to walk. Children using services on those historic exception routes will continue to receive free transport until September 2012. The Sileby to Barrow route is not an historic exception.

[Andrew Bridgen (North West Leicestershire) (Con)]

I thank my hon. Friend and neighbour for securing the debate on school transport, which is also a major issue in my constituency. Does she agree that under current guidelines common sense sometimes appears to go out of the window? In my constituency, there have been instances of older children retaining free bus passes, while younger children in the same household are asked to walk to school. Does she appreciate how frustrating it can be when a household is judged to be outside the three-mile limit and gets free bus travel, but the next-door neighbour is judged to be within the limit and their children are asked to walk to school? Surely we need discretion and common sense in such cases.

[Nicky Morgan]

I entirely agree with my hon. Friend. Common sense has been lost as part of the debate and in reviewing the routes. I have exactly the same situation in Mountsorrel, where apparently older children already at the Humphrey Perkins school will continue to receive free bus passes and younger children starting at the school will not.

In undertaking the review, the scrutiny review panel was asked to have regard to the financial, environmental and health implications of any proposed changes to existing policies in the context of the legal obligations placed on the county council. The overall review was conducted as part of the council’s medium-term financial strategy. The panel did not consider the Sileby to Barrow route and nobody with an interest in the route, such as the headmaster, the families or local councillors, was asked to give evidence to the panel. In reaching its conclusions, the panel decided that the width of a footpath and the lighting of a route did not need to be considered when a route is assessed, which is where common sense has gone out of the window.

In May 2011, parents of pupils in Sileby and Mountsorrel due to start at Humphrey Perkins school in September 2011 were written to and told that free school transport would be available for their child. Imagine their surprise, and the surprise of the head teacher, who also knew nothing about this, when in late June last year they and the families of children already receiving free transport, because the route was deemed to be unavailable, received a letter saying that that would no longer be the case and that because they lived less than three miles from the school and there would now be an available walking route, they would not be eligible for free transport and instead would have to pay for a school bus service. It was at that point that a campaign group was formed and I was made aware of the problems that the 53 parents in Sileby face.

[Annette Brooke (Mid Dorset and North Poole) (LD)]

I congratulate the hon. Lady on securing the debate. We have many problems in Dorset, and I want briefly to share some similar stories. I consider age to be a vital factor, in so far as a 13-year-old would not wish to be accompanied, so it is not a matter of the availability of somebody to accompany them. A rural lane with fast traffic is incredibly unsafe. I hope that she will expand on the point that notifying parents at the last possible moment or halfway through a sixth-form course, given that a choice will have been based on previous information, is unacceptable.

[Nicky Morgan]

I entirely agree with my hon. Friend and congratulate her on the early-day motion on the topic, which has been signed by hon. Members from across the House. She is right that the safety of routes has not been considered and another frustrating point is the manner in which notifications have been sent out.

As I have said, a campaign group was formed in Sileby. To cut a long story short, the council admitted shortly afterwards that insufficient notice of the change had been given. The decision to withdraw transport was postponed for a term, and I was promised that a new assessment of the route would be conducted once the clocks had gone back in the autumn.

Why do we all consider the route to be dangerous? My hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) has mentioned some of the dangers of such routes, but much of the Sileby to Barrow route has a footpath on only one side of the road, so that children—and adults—returning from school have their back to oncoming traffic. The footpath is narrow and there are several pinch points where everyone has to walk in single file—we are talking about 11-year-old children not messing about on the way to and from school. The speed limit along the road is 40 mph, and it is regularly exceeded. There are industrial estates, a deep ditch and a conveyor belt for a nearby quarry. The road is also so narrow at points that if two large vehicles pass each other the wing mirrors overhang into the footpath at head height.

Alas, the promise to wait for the next assessment to be conducted after British summer time ended and before any further decisions were taken was not fulfilled, and parents received further letters in October to say that as the necessary cutting back of vegetation had now happened along the walking route the free bus service would no longer be offered to them from this month. Meanwhile, despite my urging the county council to work with the school to examine alternative services, no contact was made with the headmaster between July and late October 2011. The council has since then had contact with the school about an alternative service, but that would be at almost double the cost of the service now procured by the headmaster. The council has also indicated that, when the school becomes an academy, home-to-school transport will no longer be its concern. I hope that the Minister can address that point. On a practical level, today, on the second day of term, the service for children living less than three miles from the school has been withdrawn, and some will now be using the train to get from Sileby to Barrow. I expect that others will be driven to school, which will increase congestion, and some will walk that route.

The walking route that some children will have to use remains, in my opinion, highly dangerous and therefore not “available” as the legislation requires, because even an accompanied child cannot walk along it with reasonable safety. The real question for us, as a national legislature, is whether the national legislation and guidance reflects the realities of modern Britain, or whether the safety of our children is at risk, when a route can be deemed to be available when it is clearly unsafe.

[Priti Patel (Witham) (Con)]

Does my hon. Friend agree, having touched on the safety of children going to school, that parents of children with special educational needs, in particular, are deeply worried? A case of mine concerns Melanie Green, whose 7-year-old son Aaron Green is given no support in going to school. I would welcome it if the Minister were to look at that case. In modern Britain, with our children’s changing needs, the area in question is one that must be considered thoroughly. Local authorities in particular must pay more attention to it.

[Nicky Morgan]

I entirely agree. I am sure that the Minister has heard and will hear representations about the particular case that my hon. Friend has mentioned. She is right about the need to return to a common-sense approach and consider the needs of individual families, whether it is the parents or pupils who are affected. There are parents with disabilities who cannot accompany their children to school, because they just do not have the physical ability to do so, yet somehow they are deemed to be able to accompany their children. This is a huge issue for many hon. Members, across the House, and I am glad to have the opportunity to allow them to express their frustrations and views today.

[George Freeman (Mid Norfolk) (Con)]

Does my hon. Friend agree that at the heart of the question is the issue of one size not fitting all, and legislation not working in rural areas in the same way that it does in urban ones? In cities, many of us will have seen happy gangs of schoolchildren walking and cycling safely to school in a morning. In rural areas, increasingly both members of couples are working, and at rush hour families who commute are affected by the cost of fuel and the higher speed of traffic. There is much more traffic on rural roads, and many people in mid-Norfolk live more than two or three miles from a local school. School rush hour in rural areas is a real problem. Norfolk now provides 24,000 free journeys a day, which has been described as the tip of the iceberg. That is a problem across rural areas, and I urge the Minister to see whether the criteria can be reviewed to take account of the important change that has taken place in the past 40 years.

[Nicky Morgan]

My hon. Friend is right. He is concerned for parents, I am sure, across the country, but rural areas are particularly badly hit. My constituency example involves two villages and the route between them, which is rural and unlit. I shall discuss working hours as well, and I am sure that the Minister has taken my hon. Friend’s comments on board.

As I mentioned at the start of the debate, the Leicestershire county council test is that

“a route is available if it is a route which a child, accompanied as necessary, can walk with reasonable safety to school.”

We have talked about the reasonable safety point, and I will not labour it, in view of the time, but I want to deal with the question of the child being accompanied. To assume that children will be accompanied is surely to ignore the reality of much of family life—many parents now work—and the way in which the school day interacts with the working day. To walk three or more miles to a school will take an adult at least 45 minutes. When I walked the Sileby to Barrow route with the head teacher, the local PCSO, a parent, the leader of the county council and local councillors, it took us more than an hour, and we had no children with us. The policy therefore assumes that the relevant adult has between three and four hours spare walking time a day to accompany the child. Clearly that is totally unachievable.

My example in Leicestershire is not an isolated one. The Campaign for Better Transport has revealed that 38% of councils are reviewing or cutting transport to faith schools, and 46% are reviewing or cutting transport to schools other than faith schools. I fully understand the need to make savings in light of the appalling economic legacy left by the previous Government and the tough choices that that means for our local authorities, but there are some changes in services that have potentially devastating consequences.

I want to ask the Minister to address the following points: first, will he update the Chamber on the progress made on his Department’s review of efficiency and practice in the procurement, planning and provision of school transport across England? Depending on the stage that has been reached, will the review team consider how the safety of travelling children is being assessed by councils?

Secondly, will the Minister, perhaps in conjunction with the Department for Communities and Local Government, consider whether there is scope for issuing advice or guidance on how local authorities should handle decision making around the withdrawal of transport services? In particular, I think there should be advance consultation requirements, minimum notice periods and an obligation on local authorities to work with schools and colleges in relation to the provision of alternative services before services are withdrawn or fundamentally changed.

Thirdly, what is the position of those schools that become academies? Does conversion mean that an LEA is relieved of all its obligations in relation to home-to-school transport?

Finally, will the Minister, perhaps as part of his consideration of the responses to the review, consider whether the time has come for a clearer statutory test on whether a route is or is not available? In particular, is it time to drop the assumption that children will be accompanied, and should not child safety be considered above all other factors when considering whether a walking route is now available?

I am grateful to all the hon. Members who have attended today for their attention and for their support.

00:00

[The Parliamentary Under-Secretary of State for Education (Tim Loughton)]

I have barely 12 minutes in which to take up all those questions, and I have a horrible feeling that I am not going to finish what is a fairly long and technical speech. If that happens, I shall give my unsaid comments to my hon. Friend the Member for Loughborough (Nicky Morgan). I congratulate her on bringing this important subject to the Chamber. I agree with all the considerations that she raises. She made some important points, and I pay tribute to the way that she has rolled up her sleeves and seen the situation in her constituency, as a good MP should.

Other hon. Members presented their points well. My hon. Friend the Member for North West Leicestershire (Andrew Bridgen) described the inconsistencies over the three-mile limit and different treatment of people in the same family and said that common sense was required. That is a fair point.

The point about late notification made by the hon. Member for Mid Dorset and North Poole (Annette Brooke) is particularly relevant. I have come across that problem in my constituency, when parents have been told at the very end of term that, from the following term, the bus will not be available. We must do a lot better on that front.

My hon. Friend the Member for Witham (Priti Patel) mentioned considerations about special educational needs, which I shall discuss if I have time. We need greater flexibility there. There are examples of local authorities that will pay or subsidise parents, where they can, to provide the transport for those children themselves, rather than using expensive chaperoned taxis or school buses. Certainly flexibility is a requirement with SEN.

My hon. Friend the Member for Mid Norfolk (George Freeman) also talked about considerations in rural constituencies in particular and the one-size-fits-all approach, which clearly will not work. We must ensure that we have a school transport system that reflects people’s lifestyles in the 21st century, as well as changes in education and educational establishments.

By saying all that, I have eaten into my time. My hon. Friend the Member for Loughborough has asked for clarity on four key points, and I will endeavour to provide that during my response. I agree with the broad thrust of her remarks. First, school transport is one of those areas where local decisions really do affect local people, and it should not be for Whitehall to dictate such decisions.

Secondly, in my position as Minister for Children, I hear from parents that the safety of their children is one of their paramount concerns. I have been holding discussions with my colleagues from the Department for Transport, particularly with the Under-Secretary of State for Transport, the hon. Member for Lewes (Norman Baker), because we have a joint interest in this matter. This is clearly an area in which more work needs to be done, and this debate will be a useful addition to the wider discussion. I shall include hon. Members who are present today and others in the work that we will undertake in the coming weeks and months.

Thirdly, local authorities are having to make difficult decisions and to prioritise the services that they provide, but that cannot and should not be at the cost of the safety of children and young people.

In responding to my hon. Friend’s points, I intend to set out the legal basis for home-to-school transport, including the status of guidance available from Government. I want to give details on how it is funded, what routes of redress are available to parents and others and briefly to update the rather slow progress of the review of efficiency and practice commissioned by the Department.

We are debating the Government’s policy on home-to-school transport. Like many areas of education policy that we have inherited, this policy has grown over the past 20 years into a bureaucratic, costly source of frustration for many parents. Local authorities are now spending well in excess of £1 billion a year, yet some are not able to say exactly how many pupils they support or whether that support is meeting the needs of the children who need it most.

As communities have grown and evolved, the links between schools, transport and communities have, if anything, become more fragmented. yet I do not wish to paint too bleak a picture. Some authorities have risen above the challenges and are making savings to their budgets, but without the fuss and furore described by my hon. Friend and other colleagues in the Chamber today. The East Riding of Yorkshire, a predominantly rural authority, has developed an in-house software system combined with Ordnance Survey’s geographical information system to review the efficiency of all its bus routes. The resulting efficiencies arising from the planning and rerouting of a number of existing services, over three years, led to more than £1 million of savings.

The Department decided to start a review to identify and promulgate those very learning points from and for local authorities. Before launching the external review, officials from the Department undertook a review of the legal position to examine whether it required any amendment. The coalition has at its heart an ambition to reduce the inequalities in attainment that we still see in our education system. Too many young people’s destiny is governed by their family background and too few quality places are available to all parents. Only when every school is a good school can parents feel that they have a real choice from which to express a preference. Obviously, school choice is relevant to the transport issue, especially for people who do not live in urban areas.

Increasing the supply of good places is paramount to the coalition, which is why we have expanded the academies’ programme and established the free schools programme, with the first 24 schools now operational. The theory is quite simple: rather than bus the child to the school, bring the school to the child, and give parents and teachers the power to establish a school in their community and reduce the reliance on transport as far as possible. With that rather simple mantra, we concluded that the current legislative basis, while not perfect, is sufficient to meet the Government’s policy ambitions. Our decision was further strengthened by the experience in Northern Ireland, where changes such as revising the statutory walking distances were considered but not proceeded with on the basis that they would have significant funding implications—communications, assessments and so on. Given our economic situation, we were not willing to commit to such a cost.

The legal basis of school transport remains unchanged. Local authorities must provide free home-to-school transport where a child is attending a school beyond the statutory walking distances of two miles for pupils below the age of eight and three miles for those aged eight and over and no suitable arrangements have been made by the local authority for the child to attend a school closer to their home.

The Education and Inspections Act 2006 amended the legislative framework by inserting a number of transport provisions into the Education Act 1996. Of relevance for today’s debate are sections 508B and 508C and schedule 35B of the Act. Section 508B places a duty on local authorities to provide transport for eligible children. Eligible children are defined in schedule 35B. They include those children who are unable to walk to school because of their special educational needs, mobility problems or where they cannot reasonably be expected to walk because the nature of the route. Certain children from low-income families are also eligible under schedule 35B. Such provisions are often referred to as the extended rights.

Section 508C of the Education Act 1996 provides local authorities with discretionary powers to make travel arrangements for those not covered in 508B and make financial provision, in full or in part, for travel under such arrangements. Those provisions apply irrespective of whether the school the child attends is a maintained school, a foundation school, or as my hon. Friend has asked, an academy.

I have told hon. Members that my contribution would be technical, so I will have to continue at this pace. How is this duty funded? Without going into copious details, local authority transport duties are funded through a combination of revenue support grant and local generated council tax. In respect of the extended rights, the Secretary of State for Education provides an additional funding stream which for 2011-12 and 2012-13 amounts to £85 million. As this funding is not ring-fenced, it allows local authorities to work with their communities and set their priorities accordingly.

As my hon. Friend has stated, local authorities have already begun to tackle their spending. However, not all have approached it in the same methodological manner, and I have had a number of letters from concerned families who say that bus routes have been changed or cut and that they have to find, in relative terms, quite significant sums of money. Many decisions are driven solely by financial constraints, but there are examples where the local authority has saved money, managed the communications well and established a sustainable process for future changes. Departmental officials are now working hard to finalise the report and shine a light on those case studies. It is clear from the review that local authorities must make savings and can do so without the effects on provision that many of us have seen and heard about.

Leicestershire’s allocations were £640,000 in 2011-12 and £795,000 this year. Those are not insignificant sums. I am aware that in some authorities this non-ring-fenced funding is proving to be generous, and having met their statutory responsibilities, some authorities are using their discretion in how they meet any demands that they face. That has included making transport arrangements for children who are not entitled to free transport.

I also want to set out the legal basis in respect of safety. I want it to be clear that responsibility for road safety, even in school transport, actually rests with my ministerial colleagues at the Department for Transport. We are as one in our determination to make our roads as safe as possible, while ensuring that common sense is applied. There is a statutory duty on local authorities to ensure that suitable travel arrangements are made for eligible children for the purpose of facilitating their attendance at school. We are quite clear in our statutory guidance that local authorities are under a duty to make travel arrangements where the nature of the route is such that children cannot walk along it in reasonable safety—accompanied as necessary—where the distance is within the statutory walking limit.

In assessing route availability, authorities are obliged to conduct an assessment of the risks that children may encounter on the route. They include the volume and speed of traffic along roads, overhanging trees or branches and ditches, rivers and so on. The age of the children must also be considered and any assessment should take place at the time of day that children are expected to use the route. That is common sense, but it does not always happen. Many local authorities follow the guidelines provided by Road Safety GB, which is the national organisation that represents local government road safety teams across the UK and works with them in fulfilling their statutory role.

While ensuring that children remain safe, local authorities should, quite properly, take advantage of improved measuring technology and route availability that takes into account new building and infrastructure developments, in identifying new and suitable walking routes where previously there was no right of way. That is where the use of new technology, such as the public sector mapping agreement, which provides authorities with free digital geographic mapping data, has resulted in authorities being able to plan more efficient walking and school bus routes. That has led to significant efficiency savings without authorities having to withdraw services. The draft report will recommend better use of freely available public sector data to build a picture of service provision and use.

The processes followed by Road Safety GB are accepted as the industry norm, and that best practice has been built up over many years. Indeed, Road Safety GB is in the process of refreshing its guidance, and although we await the final outcome, I am informed that substantial changes are unlikely. The guidance will continue to reflect both case law and education legislation requirements. It will be amended to be easier to use and follow and to accommodate legislation changes, but there will be no additional pressure on assessors to make walking routes available.

In conducting an assessment of a walking route, there will be an element of subjectivity, given the wide range and mix of roads and surrounding terrain. That makes it difficult to advise on every eventuality and capture the subtleties in a definitive statutory instruction. However, Road Safety GB considers that the guidance sets the parameters appropriately, drawing on case law and education legislation, so that any personal judgment required by assessors is not too great. In the light of those safeguards, further intervention by the Government into assessment practice will simply be a bureaucratic burden, which is something that we are actively trying to resist.

On the subject of local consultation and local decisions, I understand that when proposing changes there is a need for sensitivity and reassurance over children’s safety and that there is an opportunity for parents to challenge and debate with the authority. That is why the statutory guidance states that local authorities should consult widely on proposed policy changes and that at least 28 days, in term time, should be set aside for the process to be completed. Local authorities should also have in place, and publish, a robust appeals procedure for parents to follow should they have a disagreement with regard to the provision of transport. As I am not satisfied that we have such a procedure, I will take the matter away and reconsider it.

[Jim Sheridan (in the Chair)]

Order. We must move on to the next debate.