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• 09 Jun 2025

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Can't answer yes or no.:

Mr Jackson,

I must say again that I am very sorry to hear about the difficulties your son is experiencing. It has been some time since I represented someone in a Mental Health Tribunal, but I have seen similar issues before. Please also note that this site generally addresses Special Educational Needs and Disabilities (SEND) queries, and your question is somewhat broader. That said, I will offer some pointers that might be useful.

Please be aware that what follows is general guidance and some possible practical suggestions only; it does not constitute legal advice. Your family’s circumstances may involve facts or local policies that are not covered here. If you need an authoritative view on your legal position, you should consult a qualified solicitor or another specialist adviser. Indeed, I would strongly recommend considering this. Legal aid may well be available for your son. You can check this by contacting a law firm that specialises in this area or by calling Civil Legal Advice on 0345 345 4 345.

1. Why transport can be included in Section 117 after-care

• Section 117 after-care duties: Section 117 of the Mental Health Act 1983 places a joint duty on your local authority and the NHS Integrated Care Board (ICB) to arrange whatever services are needed to meet a patient’s mental health needs and to reduce the risk of relapse once a patient detained under Section 3 is discharged from hospital.
• Broad interpretation of after-care: Government guidance encourages decision-makers to interpret “after-care services” broadly. In practice, this can include practical help such as covering travel costs or arranging a vehicle when transport is necessary for someone to reach therapy, education, or community support that is part of their care plan.
• Free of charge: After-care services under Section 117 must always be provided free of charge. Budget pressures or internal disagreements about which agency pays are not lawful reasons to refuse a service that is needed to meet the patient’s needs.
• Confirm transport in the care plan: Even if your son’s after-care package is still being finalised, you can ask his care coordinator to confirm in writing that attending the day-patient programme is a core element of his Section 117 plan and that transport will therefore be funded as part of after-care.

 

2. Home-to-school transport duties under education law

• Educational placement: Because your son is of compulsory school age and cannot currently attend his mainstream school, the lessons delivered at the day unit are effectively his educational placement for now.
• Legal duty to provide transport: Under Section 508B of the Education Act 1996, local authorities must provide free home-to-school transport for “eligible children.” A child is considered eligible if either:
  • the educational placement is beyond the statutory walking distance (three miles for pupils aged eight and over), or
  • due to the child’s special educational needs or disability, they cannot reasonably be expected to walk or use public transport safely.
• Applying the criteria to your son: A one-hour drive each way plainly exceeds the distance criterion. In addition, given your son’s anorexia, autism spectrum disorder (ASD), and recent in-patient treatment, the disability criterion would seem to be clearly satisfied as well.
• EHCP and transport: If the day unit is named (or is about to be named) in your son’s Education, Health and Care Plan (EHCP) - if he has one - the council’s duty is even clearer. In that case, they must ensure he gets to and from the unit at no cost to your family.

 

3. Other social-care powers

• “Child in need”: As a disabled child, your son is considered a “child in need” under Section 17 of the Children Act 1989. Under that section, and under the Chronically Sick and Disabled Persons Act 1970, local councils can arrange services such as assistance with travel if this is required to safeguard or promote a disabled child’s welfare.
• Backup options: Although these powers are often a back-up rather than a first resort, they reinforce the point that the local authority already has ample legal avenues to fund transport if the education or Section 117 routes stall.

 

4. Practical steps you could consider

1. Raise the issue in discharge planning: Call a Section 117 discharge planning (CPA) meeting and ensure “daily transport to the day unit” is on the agenda. Ask for a clear, written decision naming which agency will commission and pay for this transport.
2. Apply for SEN transport: Submit a formal application for free home-to-school transport to your council’s Special Educational Needs (SEN) transport team. Be sure to state the distance involved, your son’s diagnoses, and the fact that the day unit is his current educational placement.
3. Appeal or complain if refused: If either service refuses, request the refusal in writing and then use the relevant appeals or complaints procedure. (Use the council’s transport appeal procedure for the education transport issue, and the ICB or council’s complaints process for the Section 117 after-care issue.) Be sure to point out that failing to provide transport effectively prevents your son from accessing the education and therapy that the authorities have arranged for him.
4. Gather supporting evidence: Collect supporting letters from the day unit’s clinician and from your son’s school Special Educational Needs Coordinator (SENCO). These letters should confirm that daily attendance at the day unit is essential for his treatment and that independent travel is not feasible for him.
5. Escalate if necessary: If you cannot resolve the issue informally, consider taking it further. For example:
   • Escalate the matter to the Local Government & Social Care Ombudsman (for council-related issues) and to the Parliamentary & Health Service Ombudsman (for NHS-related issues).
   • Obtain specialist legal help to send a pre-action letter for judicial review, citing the duties under Section 117 of the MHA and Section 508B of the Education Act.
6. Keep records: Maintain a written log of every conversation, email, and decision. A clear paper trail can prompt quicker reconsideration when senior managers or legal departments become involved.

 

5. Key points to repeat in letters and meetings

• After-care transport is free: “Transport that enables my son to attend his Section 117 after-care programme is itself an after-care service and must be provided free of charge.”
• Education travel eligibility: “He meets the Education Act criteria for free home-to-school travel on both distance and disability grounds.”
• No budget excuses: “Neither agency may rely on a lack of budget to avoid a statutory duty.”
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6. Conclusion

Everything above is guidance, not legal advice. Your local facts, policies, and timeframes may vary. If the authorities remain unwilling to act, or if strict deadlines are looming, you should seek advice from a solicitor specialising in community care, mental health, and education law, or from a charity such as IPSEA, Contact, or Mind. You may also wish to reach out to the following organisations for free legal assistance:

 

• LawWorks – lawworks.org.uk
• Advocate – weareadvocate.org.uk

 

I am sorry I couldn’t be more help as I have some understanding of the difficulties you and more importantly you son is experiencing.  That said, I hope this is of some help and I look forward to reading any contributions made by others.

Best wishes

Sean Kennedy. 



Sean Kennedy

09 Jun 2025

This is helpful

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