Upper Tribunal ruling: EOTAS, home provision and school placement

AM and SP v Wokingham Borough Council (SEN): [2026] UKUT 327 (AAC)

A successful appeal concerning a six-year-old child has clarified how tribunals should approach education otherwise than at school (EOTAS), specifying home provision in an Education, Health and Care (EHC) plan, and choosing a school type.

The Upper Tribunal found legal errors in the First-tier Tribunal’s decision. Its findings offer useful arguments for future cases, but do not create an automatic entitlement to EOTAS. Decision, page 2. The case was remitted for reconsideration by the First-Tier Tribunal

What was the case about?

The parents challenged the First-tier Tribunal’s decision that section 61 of the Children and Families Act 2014 did not apply. This is where the necessary special educational provision in an EHCP is arranged otherwise than in school, where providing it in school would be inappropriate.

The appeal also addressed whether Section F could specify “home” as the location for provision, and whether Section I could state that the child required a special school. The local authority supported the Upper Tribunal appeal.

Official Judicial summary

This appeal by the parents of a 6 year old, which was supported by the local authority respondent, concerns firstly whether the First-tier Tribunal erred in deciding that section 61 of the Children and Families Act 2014 did not apply; the Upper Tribunal decides that it did so err, because its fact-finding and reasoning was inconsistent with a conclusion that there was no part of the child’s necessary special educational provision that would be inappropriate to be made in a school.

The appeal also concerns whether it is an error of law to set out in Section F of an EHC plan, which contains the required special educational provision, the location in which special educational provision is to be made (such as “home”). The Upper Tribunal decides it is not necessarily in error of law to do so, provided the location in which the provision is made is inherent or integral to the educational or training quality of the provision. The Upper Tribunal observes that such cases will probably be rare, and states that best practice for a First-tier Tribunal setting out the location of special educational provision is to be made, in Section F, is to explain, briefly, why the location is in that particular case inherent or integral to the educational or training quality of the provision.

Finally, the appeal concerns section 33(2) of the Children and Families Act 2014, and concludes that the First-tier Tribunal erred in law in setting out “a special school” as the type of school in Section I, where there was no finding that a mainstream school would have been incompatible with the parents’ wishes, or with the provision of efficient education for others.

The decision of the First-tier Tribunal was set aside and the case remitted for reconsideration by a fresh First-tier Tribunal panel, after consolidation with a similar new case in that tribunal between the same parties.

Further explanation: EOTAS can apply to part of the provision

Section 61 can apply where only part of the necessary provision would be inappropriate in school. Its power then extends to that part, rather than automatically to the entire package.

For future cases: identify the individual elements requiring provision elsewhere, and explain why school delivery would be inappropriate. Some suitable school provision does not dispose of the whole question. Page 8, paragraphs 16–18. Part of Para 16 says,

“It is not necessary, in order to satisfy the condition in s61(2), that it be inappropriate for all the necessary special educational provision to be made in a school. But if it would [be] inappropriate for only part of the necessary special educational provision to be made in a school, the power in s61(1) arises only in relation to that part.”

At the end of this summary, you can find further information about this point here

A future return to school does not settle present needs

The tribunal’s findings included a required home programme. Treating this as “transitional” did not resolve the inconsistency with its rejection of section 61.

For future cases: distinguish present needs from aspirations for eventual school attendance. Page 9, paragraphs 20–21.

Proposed alternatives need explaining

The FTT inadequately explained what school-arranged alternative provision would involve and how it would address the child’s unreadiness. However, community attendance remained relevant evidence, and off-site provision can still constitute school provision.

For future cases: examine the actual arrangements and their suitability, rather than relying on labels. Page 9, paragraph 22.

Section F can specify home—but the educational reason matters

The Upper Tribunal rejected an absolute prohibition on including location in Section F, which records required special educational provision. A location can be specified where it is inherent or integral to the provision’s educational or training quality.

The judge expected such cases to be rare. Best practice is for the tribunal to explain briefly why location matters in that particular case.

For future cases: evidence should explain the connection between the location and the educational provision. This is a qualified permission, not a general rule that home must be included whenever requested. Page 10, paragraphs 24–28.

A special school cannot simply be the default

The tribunal also erred by specifying a special school without finding that mainstream education would conflict with the parents’ wishes or the efficient education of others, as required by section 33(2).

For future cases: parents seeking EOTAS should make their fallback wishes clear. A request for EOTAS does not itself establish that mainstream would be unwanted if a school type had to be specified. Pages 10–11, paragraphs 29–31.

What happens next?

The decision was set aside. A fresh tribunal panel must reconsider the case, consolidated with the family’s newer appeal.

The parents therefore secured reconsideration—not a final EOTAS award. For other families, the judgment provides a basis for challenging inconsistent reasoning and ensuring the relevant legal tests are properly applied. Page 11, paragraph 32.

Guidance for other families

Other families in England can cite this judgment in discussions with their local authority and in SEND Tribunal appeals. Its rulings on legal principle are binding on the First-tier Tribunal and relevant local-authority decision-makers; they provide legal authority, not simply encouragement. Families should identify the relevant principle—for example, partial EOTAS (paragraphs 16–18), location in Section F (paragraphs 26–28), or mainstream education (paragraphs 30–31)—and explain how their child’s evidence brings it into play. The judgment does not guarantee the same outcome for another child, and its best-practice recommendations should be distinguished from its legal rulings.

The Judicial summary has also been incorporated into the above.

Other case law to reference:

Also of value in this case is to refer to NN v Cheshire East, which the judge in this case quoted below:

“It will be seen that the wording of [the statutory predecessor to s61, being section 319 of the Education Act 1996] and 61 is not identical. For example, section 319 specifically permits a local authority to arrange for any part of special educational provision to be made otherwise than in a school. There is no such explicit empowerment in section 61. Nonetheless, I accept [counsel’s] submission that there is nothing to suggest that such a power should not be inferred in section 61 and, indeed, the reference to ‘any’ in section 61(1) implies that the power does still exist.

Note, because we have very limited capacity, these hearing summaries are generated by an AI familiar with SNJ content. However, it has been checked by a human before publication. For clarity, we have included sourcing within the text, so you can find each reference point within the original HMTCS document.