High Court refuses transport claim but allows liberty to apply if service not ready by September 2025.

THE HIGH COURT

[Record No. 2025 284 JR]

[2025] IEHC 456

BETWEEN

L.C. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND A.F.)

APPLICANT

AND

MINISTER FOR EDUCATION AND YOUTH

RESPONDENT

JUDGMENT of Ms. Justice Marguerite Bolger dated the 7th day of August 2025.

1. The applicant is a primary school child with additional needs who seeks declaratory relief arising from what he says is a failure by the Minister to comply with their statutory obligations to provide a school transport service. For the reasons set out below, I am refusing this application.

The Minister's statutory obligations

2. Section 7(1) of the Education Act 1998 (hereinafter referred to as “the Act”) confirms the functions of the Minister including: "to ensure, subject to the provisions of this Act, that there is made available to each person resident in the State, including a person with a disability or who has other special educational needs, support services and a level and quality of education no appropriate to meeting the needs and abilities of that person…". Section 7(2) of the Act sets out a list of the functions including "support services" which is defined in section 2 as including "transport services". Therefore, the Minister has a statutory function under the Act to provide transport services that may be required as part of support services for a child such as the applicant.

3. School transport for children with special educational needs arising from a diagnosed disability is administered by a Department of Education non-statutory scheme. It is common case that the applicant comes within the terms of this scheme. The scheme has been found by this court in O’N v. National Council for Special Education & Ors [2001] IEHC 246 to be administrative in nature with no statutory basis.

Factual background

4. The factual background in this case is particularly important given that the Court must assess whether the Minister has failed to comply with their potential statutory obligations as set out above. I, therefore, set out below an account of how the situation has developed to date.

5. The applicant lives with his family in Kilnamanagh in Dublin. There have been difficulties with his previous school placements. In 2024, with the assistance of the local SENO, his parents applied to a school in Dublin 4. On 12 July 2024 they were informed that a place was available. They accepted this place on 21 August 2024. They had completed a form to apply for school transport on 13 July 2024 which they sent to their SENO but it was not furnished to the relevant transport section of the Department until 4 September i.e., less than one week after the school place had been accepted. Nothing was inserted in the part of the form that sought information to "assist in determining the transport arrangements required". Under the heading "BASIS FOR NEED FOR ESCORT SUPPORT”, reference is made to the applicant’s anxiety causing "meltdowns and outbursts when triggered. In a car/bus an escort would be required to prevent danger to [L] or the driver."

6. On 5 September, the application form was uploaded to Bus Éireann, which arranges the transport. Bus Éireann advised the Department on 25 September 2024 that a new service was required. This was sanctioned by the Department one week later on 2 October 2024. There followed a procurement process, which Counsel for the applicant accepted was a requirement, in part, of European law. Unfortunately, the procurement process took some time as the route was put to tender five times before the successful bidder was appointed on 3 March 2025. In the meantime, there was ongoing contact between the applicant and the Department and Bus Éireann. The applicant was offered a school transport grant pending the provision of the school transport service.

7. In December 2024, the applicant’s mother enquired about home tuition. A home tuition grant was sanctioned as an exceptional situation in February 2025. Ultimately the home tuition grant was not availed of because the applicant's mother said that sourcing a suitable tutor would have taken considerable time (affidavit of 21 July 2025 at paragraph 9). The applicant's mother had previously averred in her affidavit of 3 March 2025 grounding the within application, that she had been paying for private dyslexia reading lessons for L since October 2024.

8. On 3 March 2025, Bus Éireann put a transport service in place. Responsibility for employing the escort (that the applicant’s mother had requested in the form as set out above) fell to the school as per the scheme. The escort position was advertised. Two people applied and interviews were held. The successful candidate was hired by the school on 2 April 2025 but garda vetting delayed matters and their employment did not commence until

6 May 2025.

9. Whilst those delays were understandably frustrating for the applicant and his family, there is no evidence before the Court to suggest that there was any conscious or deliberate flouting of rights. There is nothing to suggest that an escort would have been employed any quicker or more efficiently had it been taken on by the Department rather than delegating that responsibility to the school .

10. The transport service for L commenced on 6 May 2025. This involved L being brought to school by an escort and a driver, along with two other children with additional needs, in a saloon car. L’s parents did not express any concern about this arrangement. On

12 May 2025, shortly after the service began, the school principal sent an email to the Department in which she set out difficulties that had arisen with the other two children becoming dysregulated during the journey, which the principal said was contributed to by the limited space in the vehicle. She expressed her concern that the school would lose the escort which would mean L could not attend school until a new escort was recruited. The respondent has averred that this was the first time they were made aware of any concerns with the transport arrangements that had been put in place.

11. Two days after that email, on 14 May, the principal’s concerns were realised when the escort resigned. Almost immediately, on 15 May, the respondent sanctioned an individualised transport service for the applicant. On 23 May 2025, Bus Éireann confirmed they had a transport service available subject to the appointment of an escort. Unfortunately, the school experienced difficulties in recruiting a new escort. On 24 June 2025, the school's principal advised the Department that one person had applied for the position and had been offered it subject to vetting. That person ultimately did not accept the role and the school had to recommence advertising for a new escort. While that recruitment process was going on, a temporary arrangement was made to secure a post primary escort (who was available for June due to secondary school holidays), but that person had to be garda vetted for this role of escorting L. That vetting was completed on

27 June 2025 and school transport was made available for L for their two week July provision.

12. The situation as of the date of this judgment is that the school issued an advertisement for the escort position on 2 July 2025 with a closing date of 8 August. An interview process will follow and if a candidate is selected, they will undergo the necessary garda vetting process. The Department expects this will ensure a school escort is in place for L’s new school year commencing in September 2025. This is a reasonable expectation, albeit it does not constitute a firm arrangement that guarantees the applicant access to his school place. Given that there are currently no firm arrangements in place, the issues raised by the applicant in these proceedings are not moot, as the respondent sought to assert.

13. Throughout this long process, which has been understandably frustrating for the applicant and his parents, the applicant has been offered temporary alternative support in the form of a school transport grant and a home tuition grant, as set out above.

The applicant’s rights to education and support services

14. The applicant has constitutional and statutory rights to an education, the latter being wider than the former given that section 7 renders it a function of the Minister to ensure, subject to the provisions of the Act, that education and support services (which include transport) are made available. Article 42.4 of the Constitution states more narrowly that the State "shall provide for free primary education".

15. In Crowley v. Ireland [1980] I.R. 102, in considering the plaintiff's claim that the State had breached their constitutional right to an education, Kenny J. for the majority in the Supreme Court held: "…the whole of the evidence must be looked at and it may show that the Minister has not been at fault. In the present case I think the totality of the evidence, oral and written, and the inferences that are to be drawn from it, fail to establish that there has been a breach of the constitutional duty imposed on State."

16. Whilst that related to the State's constitutional obligations, a similar approach is required when considering the Minister's statutory obligations that apply here. This Court adopted that approach in C.C. v. Minister for Education & Ors [2024] IEHC 14 where the parents of the 17-year-old student with additional needs challenged the delay in providing him with a school place in a school that was still under construction at the time of the proceedings. The Court's conclusions are set out at paragraphs 19 to 21 as follows: “19. C has constitutional and statutory rights to an education, the latter being of somewhat broader scope than the former. He has the right to an appropriate education subject to practical and resource issues, which cannot be invoked lightly to restrict what is an important fundamental right. The State has made provision for an appropriate education for C by providing him with a place in a new special school. Unfortunately, and in spite of huge efforts by the officials concerned, the opening of the school has been delayed by a number of months but is expected to open within the coming months. C has not been left without any education in the meantime as he is in receipt of home tuition which has been commended by his psychologist albeit it is acknowledged by all concerned not to be a suitable replacement for a place in a special school.

20. As a temporary measure and pending the opening up of his school, C is entitled to the benefit of the Department’s home tuition grant scheme. His parents have not yet availed of it for their own reasons, but that does not alter the fact that C is entitled to a grant to cover tuition from a suitably qualified, Teaching Councilregistered, vetted tutor, which are minimum requirements which are all reasonable and part of the State’s commendable desire to ensure that the education services that it is paying for are provided by suitably qualified, professional and vetted teachers.

21. In those particular circumstances, I consider that C’s constitutional and statutory rights have been vindicated and that the State is discharging its obligations to him. However, that does not mean there can be an unlimited delay permitted in ensuring C gets to attend the special school that will provide him with the environment which his psychologist has said he requires in order to grow socially and academically.”

17. I adopt a similar approach in this case. A proactive approach is being adopted by the respondent, despite practical challenges presented by unsuccessful recruitment processes and delays caused by legal obligations including procurement rules and garda vetting requirements. The Minister’s actions were both proactive and reactive, contrasting sharply with the situation in Nagle v. South Western Health Board and Others (High Court,

30 October 2001) where Herbert J. found that "little or nothing has or is being done by the Department of Education”. Insofar as the applicant has not yet been provided with the transport service that the Act requires the Minister to provide, I am satisfied that this was due to genuine difficulties that the relevant personnel were actively seeking to address during which time suitable alternative supports were offered to the applicant as a temporary measure pending the applicant’s individual escort transport service being made available to him.

18. As I have reached a decision to refuse the reliefs sought on an evidential basis in relation to the steps taken to put a transport service in place, it is not necessary to determine the points raised about the Minister’s entitlement to delegate responsibility for aspects of the school transport service to Bus Éireann and to the individual school.

19. However, as in my decision in C.C., this delay in securing services that the Minister is required to provide cannot be unlimited. It is hoped that the Department’s expectation that a service will be in place when L is due to commence his new school year in September 2025 and so I am allowing the applicant liberty to apply in the event that there is any further delay in September (if necessary by putting it in for mention before this Court in September 2025). That should not preclude the making of final orders at this stage so as to facilitate the applicant in any urgent application for an appeal which they may wish to make.

Indicative view on costs

20. Whilst I have found in favour of the respondent in refusing the reliefs sought, the rate of progress in securing a transport service since the applicant applied for leave in March 2025 may have been influenced by the existence of these proceedings and the case management that was applied. My indicative view on costs is that there may be a basis for a partial costs order in favour of the applicant, but I will hear Counsel further on that. I will put the matter in before me at 10am on 14 October 2025 for final orders.

Counsel for the applicant: Derek Shortall SC, Paul Gunning BL. Counsel for the respondent: David Leahy SC, Julie Maher BL.