with Nicole Lee, solicitor, SEN Legal
Today's article is from my colleague, Nicole Lee, a solicitor at SEN Legal who is an expert on Education Otherwise Than At School as part of an EHCP. You can also watch us participate in a two-part SNJ Conversation on the subject here. Over to Nicole!
What is EOTAS and how can my child get it as part of an EHCP, by Nicole Lee
It seems that not a day goes by without a new Ofsted Report, inquiry or news article about systemic failings by local authorities to provide special educational provision in a timely manner, if at all.
It will therefore come as no surprise that for some children and young people, the arrival of their EHC Plan equates to closing the stable door after the horse has already bolted. By the time it arrives, their needs --or needs that have developed through inadequate SEND provision-- have become so severe that any type of formal educational placement wouldn't work.
This was a fact recognised by Parliament when the Children and Families Act 2014 (CFA) was drafted, and Section 61 of the 2014 Act 2014 makes specific legal provision for the education of children and young people, for whom education in a school or post-16 institution would be inappropriate. This is called Education Otherwise Than At School, or EOTAS.
What does EOTAS entail?
As the title would suggest, EOTAS is the legal mechanism whereby a child or young person with an EHC Plan can receive special educational provision despite being unable to attend an educational setting. Under a formal EOTAS arrangement, the child or young person will not be required to be on the roll of, or in attendance at, a “traditional” educational setting. Instead, they will receive their education and special educational provision either at home, or in some circumstances, within an external setting that is not a registered educational setting.
EOTAS should not be confused with Elective Home Education (EHE). While both EOTAS and EHE may have the same result in that the child will be being educated at home, they each place completely different obligations on local authorities.
Under Section 42 of the Children and Families Act 2014, a local authority is placed under an absolute legal obligation to make sure a child or young person receives all of the provision contained in Section F of their EHCP, unless the circumstances in Section 42(5) are met. Section 42(5) says the obligation is on the LA to provide the EHCP provision unless “the child’s parents or the young person has made suitable alternative arrangements.”
So, what if a parent or young person decides to educate at home or elsewhere, but their EHCP names an educational setting in Section I, and there is nothing in Section F to state that an EOTAS package is to be provided? In these circumstances, it is very likely that the LA will say their obligations under the EHCP have been disapplied and full responsibility for arranging and paying for the education will fall on the parent (including the cost of any examinations).
However, under an EOTAS package of provision, correctly written into an EHC Plan, the local authority will remain responsible for the child or young person's education generally. It will remain under an obligation to ensure all of the provision in Section F is provided and funded.
In brief summary, EOTAS is a formal special education package made under an EHC Plan, for which the local authority remains legally responsible.
Can my child get EOTAS?
Section 61 of the Children and Families Act 2014 states;
61 Special educational provision otherwise than in schools, post-16 institutions etc
- (1) A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.
- (2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.
- (3) Before doing so, the authority must consult the child’s parent or the young person.
As with any piece of legislation, case law has been absolutely essential in determining how Section 61 should be applied on a day-to-day basis. Most recently, the case of NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) (PDF) has provided very succinct and helpful guidance as exactly how local authorities (and Tribunals) should apply it.
If you are considering making a request for EOTAS, you would be wisely advised to consider the guidance set out by Upper Tribunal Judge Rowley at paragraph 47 of this judgement and point by point, set out how this guidance applies to your situation. There is no one-size-fits-all answer; every case will need to be decided on its own individual facts and circumstances.
Can any provision be made in school?
I have produced in full below Judge Rowley’s guidance at point 47, in the quotes below, followed by my own comments.
47. Against this background, I give the following guidance to tribunals considering cases such as this where bespoke provision of education outside a conventional classroom setting and education otherwise than at school are proposed by the parties.
a. The tribunal must consider section 61 CFA 2014. It must separately ask whether it is satisfied that it would be inappropriate for
(i) any special educational provision that it has decided is necessary for the child to be made in any school and
(ii) any part of the provision to be made in any school.
In applying this to your situation, you must consider the provision set out in Section F of your child’s EHC Plan. Decide if it's your position it would be “inappropriate” for any of the Section F provision is provided to your child within a school, or if some of the provision could be provided in school.
For example, it may be that your child’s anxiety prevents them from going to school to attend more structured and academic lessons such as English, Maths and Science. However, they would be able to go to school to do things that they enjoy, such as P.E. or Art.
Is a school setting suitable?
b. In considering these questions, the tribunal must ask if a school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case. Without being an exhaustive list, those circumstances might include:
i. the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow (above)).
Once you have decided what your position is i.e. it would be inappropriate for all provision to be delivered in a school, or some specified provision could be delivered in a school, you then need to set out all of the evidence that supports your position.
In essence, you need to consider the very particular facts of your child’s case, their needs and the provision required to meet those needs. Then use this information to show why it would be inappropriate for all or part of that provision to be delivered in a school.
Not only should you provide that evidence in whatever form it is available (report, meeting notes, letters, emails, medical records etc), but you should set out exactly how that information supports why attendance at school would be inappropriate.
It is very important to remember that EOTAS can only be agreed if it is “inappropriate” for a child to attend school. The presumption, therefore, is that a child should attend a school setting, unless it is inappropriate for them to do so.
The right to parental preference under Section 9 of the Education Act is not determinative. While parental preference may be considered, in my view, parental preference for EOTAS could not prevail under the wording of Section 61, if it was not decided that going to a school would be inappropriate.
It is important to note that this list of circumstances is built on a list provided in an earlier piece of case law related to EOTAS as it was under the Education Act 1996, with some changes.
As a solicitor representing children and young people, I am concerned about the continued inclusion of circumstance “v. the comparative cost of the possible alternatives to the child’s educational provision, either at school or elsewhere.”
It is long-established under legislation and case law that the provision in Section F, can be determined only on the description of the child’s needs in Section B. There must be provision for each and every need in Section B, and this should be regardless of cost. I do therefore disagree that the comparative cost of providing provision at home or a school should be considered when deciding whether or not school attendance is inappropriate. If the child’s needs dictate that attendance at school is inappropriate, then EOTAS can and should be provided.
No school? Leave Section I blank
c. If the tribunal is satisfied that it would be inappropriate for any such special educational provision to be made in any school, then Section I must be left blank.
As stated, if it is agreed that it would be entirely inappropriate for a child to attend a school setting to receive any provision at all, then Section I of the EHC Plan should be left blank. The full details of the EOTAS package should be specified in Section F of the EHC Plan.
When a school can be named in Section I
d. Conversely, if the tribunal is not satisfied that it would be inappropriate for any such special educational provision to be made in any school, it follows that a particular school or type of school would be appropriate for the child (Derbyshire County Council v EM and DM (SEN) (above)) in relation to at least part of the provision to be made. This will lead to consideration of what should be specified in Section I of the EHC plan. That, in turn, will involve consideration of regulation 12 of the 2014 Regulations.
If it is decided that some education can be delivered within an educational setting, then it is possible for that particular setting, or type of setting, to be named in Section I of the EHC Plan. Any provision not being delivered at the school setting should be specified within Section F of the EHC Plan.
Is it an education setting?
e. If a particular educational institution is proposed, and if it is in issue as to whether or not that institution is a ‘school’, the tribunal must consider whether it falls within the definition of a ‘school’ as set out section 4 of the Education Act 1996. This is a question of fact to be determined in the light of all the evidence including, where relevant, matters such as regulation governance, financing and administration (MA v Borough of Kensington and Chelsea (SEN) (above), TB v Essex County Council (SEN) (above)).
In many cases (including in the case currently being discussed) it will be glaringly obvious whether or not the setting being proposed is an educational institution. If you are not sure, a good starting point would be to search for the setting on the Department for Educations “Get information about schools” website. If it is listed, then it is registered as an educational institution with the Department for Education.
However, if it is not obvious whether a setting is an educational institution or not, further investigation will be required, which goes beyond the scope of this article.
Is it attendance?
f. If it is in issue, the tribunal must consider whether the school or type of school will be ‘attended by’ the child. If it is satisfied that the child will be present at a school or type of school for at least part of the time, that is sufficient and so the school or type of school must be specified in Section I. Attending provision provided by the school as part of a bespoke package outside a conventional classroom setting will nonetheless mean that the school is to be attended by the child within the meaning of regulation 12(1)(i).
In considering this guidance, I would suggest that any provision delivered by a setting at all, whether physically on school grounds or not, could be sufficient for the setting to be named in Section I. For example, if outreach provision is being provided by the school and it is something that child should attend e.g., external activities/field trips, or 1:1 teaching sessions provided by school staff, but not on the school site.
The key word here is “attendance”, suggesting physical approximation is required. I would question whether provision made by a school that is purely virtual, or requires no form of contact e.g., providing work to be completed with no contact, would satisfy “attendance” as it is expressed here. That, however, is case law to be made another day.
Section I can only be an educational setting
g. What is specified in Section I must be strictly limited to the of name the school and type of school to be attended by the child, or where the name of the school is not specified, the type of school to be attended by the child. No more and no less.
h. For the avoidance of doubt, education in a child’s home cannot be named in Section I (East Sussex County Council v TW (above)).
Neither local authority nor Tribunal is permitted to state anything in Section I other than the name of the educational institution, or if there is no named institution, the type of institution. It cannot name the child’s home address, as a child does not “attend” their own home. Nor can it name a non-educational setting that the child may attend e.g. a youth centre.
Provision must be in Section F
i. Any special educational provision which will be made otherwise than in a school or type of school will be set out in Section F.
As expressed above, any provision which is being made on an EOTAS basis must be set out in Section F. The law relating to specificity applies to EOTAS just as it does to provision delivered within educational institutions. All provision should be written into the EHC Plan with such a level of specificity that it leaves no room for doubt exactly what provision should be delivered.
This is especially important in EOTAS cases, as there are inherent organisational difficulties that can arise when all elements of education are being sourced individually by different external providers. You will want to be absolutely clear on the provision that should be in place so you enforce it if it doesn't materialise.
Sometimes EOTAS is the only option
For some children and young people, EOTAS, either wholly delivered at home, or with some limited input from a school, is the only option. However, in practice, it is very often the case that local authorities have a cultural aversion to the idea of children being formally home-educated under an EOTAS provision.
Therefore, it can so often be the case that a request for an EOTAS package, requires an appeal to be submitted to the SEND Tribunal. This most recent case law cited here provides useful guidance as to how the Tribunal will approach an appeal for EOTAS. It provides parents and young people with a guide as to the issues that they should consider, and information they will provide.
No doubt this will not be the last piece of case law relating to EOTAS, and we eagerly await any further developments.
Nicole Lee
Also read:
- SEND Law right now. And why you mustn’t confuse EOTAS with home education
- SNJ in Conversation: SEND law now and EOTAS, Part Two
- How to help our children: 10 top tips from parents for SEND Case Officers
- Ofsted: Disabled children “seriously affected in both care and education” during pandemic
- Ofsted finds home education is most often not a choice – and off-rolling is a key culprit
- Mum’s brilliant home education helped me thrive as an autistic student
- How we fired up our disabled children’s home learning with the specialist kit they need
- This Education Policy Institute research proves why every teacher MUST be a teacher of SEND
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- EOTAS: Education Otherwise Than At School. What is it, and can I get it? - November 2, 2021
- Could remote hearings be the new normal at the SEND Tribunal? - April 10, 2020
- Coronavirus and SEND law: Part 4 What does my child’s EHCP still provide? - March 27, 2020
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