What is the difference between s19 EOTAs and s61 EOTAS in an EHCP?

They are two different legal duties, within the Education Act 1996 and the Children and Families Act 2014, although both can result in education being delivered outside school.

Section 19: the immediate safety net

Section 19 applies where a compulsory-school-age child is not receiving suitable education because of illness, exclusion or “otherwise”. It does not depend upon the child having an EHCP.

For example, a child may be unable to attend because of severe anxiety, school trauma or physical illness. The council cannot simply say that the child remains on a school roll and therefore the school is responsible. It must consider whether, in reality, the child is receiving suitable education and whether s19 arrangements are necessary.

This could include:

• home tuition;
• online teaching;
• alternative provision;
• teaching at a community venue;
• a combination of provision.

It is often used while assessments are being completed or a suitable placement is being found. But there is no rule saying s19 provision can only be temporary.

A child does not need an EHCP to receive education outside school under section 19 of the Education Act 1996.

Section 19 creates a separate local-authority duty. It applies when a child of compulsory school age would otherwise not receive suitable education because of:

• illness;
• exclusion; or
• another reason.

The council must arrange suitable education at school or elsewhere. This might be home tuition, online education, alternative provision or a mixed package.

However, there is an important terminology issue: lawyers often reserve EOTAS/EOTIS for a formal section 61 Children and Families Act package contained in an EHCP. Provision under section 19 is more accurately described as alternative education or education otherwise than at school under s19.

The key differences are:

• Section 19: no EHCP required; compulsory-school-age children only; intended to prevent a child being left without suitable education.
• Section 61: requires an EHCP; covers special educational provision that it would be inappropriate to provide in a school or other institution; potentially continues until 25.

A child receiving s19 provision may also need an EHC needs assessment. The council must not treat a few hours of temporary tuition as a substitute for assessing the child or amending an unsuitable EHCP.

Section 61: the EHCP itself provides for education elsewhere

Section 61 allows the council—or the SEND Tribunal if there is an appeal—to arrange the special educational provision a child or young person needs outside a school or other institution.

The legal threshold is important: the council must be satisfied that it would be inappropriate for the provision to be made in a school or other institution. It must also consult the parent or young person.

For a wholly EOTAS package:

• the child’s needs should be specified in Section B;
• the complete education and therapy package should be specified and quantified in Section F;
• Section I should normally be left blank because there is no institution to name;
• the council is legally responsible for securing the Section F provision.

This position was confirmed in Derbyshire County Council v EM and DM [2019] UKUT 240 (AAC). IPSEA’s case summary explains the consequences for Sections F and I.

The practical distinction

A child may begin with s19 provision because they have stopped being able to attend school. If the evidence subsequently shows that education in any school or institutional setting would itself be inappropriate, the EHCP may need amending to contain a properly specified s61 EOTAS package.

Councils sometimes describe a few hours of temporary home tuition as “EOTAS” without saying which duty they are using. That ambiguity is important because a vague statement in the EHCP such as “education will be provided under s19” is not equivalent to specifying an enforceable s61 package in Section F.

In short:

• Section 19 asks: what education must the council arrange because this child is currently missing suitable education?

• Section 61 asks: should this child or young person’s special educational provision itself be delivered outside any school or institution?

A child with an EHCP can potentially have s19 provision while the existing plan remains in force, but that should not be used indefinitely to avoid reviewing and amending an EHCP that no longer reflects the child’s actual needs.

Is s19 covered by the 2026 EOTAS consultation?

Yes. The new DfE EOTAS consultation does mention section 19, but it deliberately does not call section 19 provision “EOTAS”.

The consultation defines two separate categories:

• EOTAS: special educational provision arranged under section 61 of the Children and Families Act 2014, recorded in an EHCP.
• Alternative provision: suitable education arranged under section 19 of the Education Act 1996 for compulsory-school-age children who would otherwise receive none because of exclusion, illness or another reason.

That distinction is set out in the glossary and a comparison table on pages 3–5 of the full consultation document.

Section 19 appears substantively in three places:

1. Children without a Specialist Provision Package: On pages 17–18, the consultation says children who are ineligible for an SPP but cannot continue in a formal setting—for example, because of health needs—would rely on the section 19 “safety net”. It envisages:
   • time-limited alternative provision; the child normally remaining linked to a school; regular reviews; an ISP; a reintegration or transition plan.
   Question 1 asks how children who are ineligible for an SPP but cannot continue in formal education should be supported.
2. Children unable to attend because of health needs: (Chapter 3, pages 35–40), deals with children receiving alternative provision because their physical or mental health needs cannot be met in school. This is essentially the section 19 cohort, although the questions generally say “alternative provision” rather than repeating the statutory reference. Questions 15–17 ask about early intervention, the respective responsibilities of schools, councils and health services, and returning children to school.
3. Online education: Chapter 4 considers additional controls where councils use accredited online providers under section 19. It asks whether placements should be time-limited and whether children should remain registered at a school.

The significant policy point is that the consultation is drawing a hard line between EOTAS and section 19. Under its terminology, only the section 61/EHCP route counts as EOTAS. Children who cannot attend school but do not qualify for an EHCP and Specialist Provision Package are channelled towards section 19 alternative provision, apparently conceived as temporary and directed towards reintegration.

That is potentially problematic because section 19 itself does not say that provision must be time-limited, require continuing school registration or always aim at reintegration.

Its duty is to arrange suitable education for as long as the statutory conditions are met. The consultation’s policy description should not be mistaken for the present law. It expressly confirms that the existing statutory framework remains in force until any reforms are implemented, currently anticipated for 2029–30.