Legal challenge in North Yorkshire over 900 school transport places

29 August 2019

North Yorkshire has the backing of its MPs to find a solution to a legal challenge which threatens to cost the Council over £300,000 and potentially disrupt home-to- chool transport provision for hundreds of students.

Providing free home-to-school transport for eligible pupils is a statutory duty for councils and like many others  in the country,  North Yorkshire  allows pupils who don’t qualify for free transport, to buy empty seats on a first-come-first-served basis.

Across the county there are 900 children who buy these spare places.  It is a long-standing arrangement which provides convenience for families and additional income to support the service.  This arrangement is now in jeopardy.

The council faces a private legal challenge from a disability rights campaigner who is arguing that where the council sells a spare seat on a school bus the bus must then be wheelchair accessible. Most buses operated by companies under contract to the Council to provide home to school transport, are not suitable for wheelchairs as they are from older fleets or are otherwise used as tour coaches.

The private challenge is testing the current legislation.  Buses used for free home to school transport do not need to be able to accommodate wheelchairs so if North Yorkshire was not charging for the spare seats it would be legally compliant; but because it offers up spare places to paying students it is at risk of unwittingly  contravening Equality Act regulations.

Cllr Don Mackenzie, North Yorkshire’s Executive Member for Access, said:

These home to school transport arrangements are widely used by councils up and down the land.

We, along with many other councils, have believed that home to school transport was exempt from the regulations. The regulations were designed for commercial bus services and it cannot have been the intention of the law that simply selling one or two spare seats on home to school transport should mean buses then have to be accessible. Selling spare seats provides a safe and convenient service for pupils not eligible for free transport, helps to reduce congestion and also generates valuable income to the council of over £300,000 each year.

Supporting students with special educational needs and disabilities is a priority for North Yorkshire and we run our own fleet of wheelchair accessible mini buses and use wheelchair accessible taxis whenever needed.  We have provided our home-to-school services in good faith and always believed we complied with our equality duties.

Home-to-school transport is provided through contracts with coach operators and most vehicles used currently are not capable of transporting wheelchairs. Companies would face very significant costs if they had to secure different vehicles or adapt existing vehicles and these costs would then be passed to the County Council, and then to council tax payers.

At its meeting on 3 September North Yorkshire’s Executive will consider a range of proposals to address the challenge with recommendations to continue to transport children in spare seats who are not entitled to free transport and to stop charging them while the council seeks clarification from the DfT that the existing method is lawful.

In the absence of clarification or change in the legal framework,  it is proposed that the council will have to consider whether it will withdraw this discretionary service from the start of the 2020/21 academic year, or whether it is able to continue to make spare spaces available free of charge.

Cllr Mackenzie said:

This challenge to current practice will cost the Council over £300,000 every year in lost income to the service and may ultimately result in significant disruption and inconvenience for 900 children and their families if they are no longer able to travel in these spare seats.

Ironically it will do little if anything to improve access to home to school transport for disabled children. We are appealing to the DfT to intervene and apply common sense to settle this issue as a matter of some urgency.

A spokesperson for ConneXionsBuses said:

We are fully compliant with the Public Service Vehicles Accessibility Regulations 2000 and every one of our vehicles is fully compliant with schedules 1 and 2.  We purchased our first fully compliant vehicle in 2004, and management have been aware of the staged deadlines and have complied accordingly.

We are proud to say that all our school services are operated with PSVAR-compliant vehicles, which includes our commercially-operated services to St Aidans, St John Fisher and King James schools.  Indeed, NYCC were given the opportunity back in May 2019 to buy seats on our compliant, commercially-operated service to King James for pupils that would be entitled to free home to school transport, but declined to do so, instead preferring to have a non-accessible second bus following our vehicle around.

North Yorkshire County Council have been well aware that the final deadline (1st January 2020, for coaches) has been looming (for the past several years), and yet in recent tender exercises have ignored our bids to operate accessible, low emission vehicles on home to school tenders, in preference to awarding to other providers who have not so invested in their fleets and hence can undertake the work cheaper.  Possibly merging NYCC’s bus services department with their waste department was not the best move, as a lot of their expertise has been lost.

Rather than refusing to carry children whose parents pay for their transport to school, NYCC should be requiring current bus operators to either invest in compliant vehicles or to give notice on their tenders to allow them to be retendered at a realistic cost.  We remain prepared to sit down with NYCC and discuss our operation of their contracted school services once more.  Indeed, we are happy to speak with schools and affected parents also, and can be contacted through our website.  We remain of the opinion that bus operators such as ourselves are best placed to run services compliantly and at the best terms for parents, children and the taxpayer.

In the opinion of our advisors, a legal grey area remains if a service continues to run without a compliant vehicle (from 1st Jan 2020) even if no fares are paid by any parents.

We understand that the legal challenge from a respected disability rights campaigner stems from the actions of a member of NYCC driving staff who allegedly refused to deploy a wheelchair lift for the gentleman, when operating the Wetherby to York public bus service 412, on which we operate most journeys and NYCC fleet operate two trips (which they believe they can operate cheaper than our previous tender bid).  We assure customers on our 412 journeys, and all our other bus services across North and West Yorkshire, that all our drivers are pleased to assist passengers with disabilities and all staff have undergone relevant training in this regard.  For wheelchair-bound customers, all our vehicles are fitted with a wheelchair ramp, and also with a range of features to assist persons with other disabilities, as per the Accessibility Regulations.

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