Throughout this guidance, ‘parents’ should be taken to include all those with parental responsibility, including guardians (and foster carers, although in this case the local authority may be the corporate parent). Children and young people will generally be referred to on this page as ‘child’ or ‘children’ due to the legislation being mainly applicable to compulsory school age.
Section 19 of the Education Act 1996 states that each local authority must make arrangements for the provision of suitable education at school or otherwise for those children of compulsory school age who by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless arrangements are made for them. (unless the child will cease to be of compulsory school age within the next 6 weeks and does not have any relevant examinations to complete).
Education Act 1996
In other words, if a child will not receive a ‘suitable’ education for any period, without arrangements being made for them, (and the parent does not want to Electively Home Educate them themselves), then the LA must make these arrangements. This applies because of illness (physical or mental), being excluded from school, or something else (such as having SEN and their needs not able to be met unless other arrangements are made).
We have covered the LA’s duty to make provision for the first two of these in our other pages – Health Needs and Exclusions, . Therefore on this page we will consider the ‘or otherwise’ and where the parent does not want to Home Educate.
As we saw in our other pages, if a parent does not want to educate their child themselves, they can ask the LA to arrange a school place. But where this school place does not enable a child to receive a suitable education then other arrangements may be required.
On our Parental Provision of Education page, we consider some alternatives to home education, where a child may be struggling but a parent does not want to have the responsibility of home education. On this page we will look in a little more detail about what the local authority could arrange and when, in terms of ‘Education Other than at School’.
When talking about whether provision should be made in or out of school, the CFA 2014 states that;
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. It 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 and before doing so, the authority must consult the child’s parent or the young person.
Children and Families Act 2014 Section 61
Regardless of whether an EHC plan is in place or not, if the LA are satisfied that provision through a school is inappropriate AND the parents (or the young person) have been consulted and their views given, then the LA can and should (but not ‘must’) arrange for education to be provided a different way other than at school and should secure and fund that provision.
It is highly unlikely that the LA will decide school is inappropriate without undertaking an Education, Health & Care Needs Assessment (EHCNA) and an EHC plan being agreed. Most of this page therefore will presume that there is an EHCP already in place (or at least agreed). However, the Alternative Provision section below will apply where one has not already been agreed.
What do we mean by inappropriate?
We can see in Case Law (specifically S v Bracknell Forest [1999] ELR 51.) that the local authority can make provision ‘out of school’ if appropriate provision cannot be made ‘in school’. The first question therefore is what provision is required (section F) and then decide if that can be provided in school.
Another excerpt from Case Law (this time, TM v Hounslow [2009] EWCA Civ 859, [2011] ELR 137) included the following findings:
To answer the question whether or not it would be “inappropriate” for provision to be made in a school, it is not enough to ask whether the school “can” meet the needs set out in Part 3*. One must ask if the school “would not be suitable” or “would not be proper”. That requires the LA to take account of the circumstances of the case which would include the child’s background and medical history, the particular educational needs of the child, facilities that can be provided by a school and otherwise than at a school, the comparative costs of alternative provisions, the child’s reaction to the provisions, the parents’ wishes and any other particular circumstances that might apply.
*Part 3 relates to the provision section of the previous Statement of SEN. In an EHCP this would be section F and the above would still apply.
The decision therefore is not just down to whether a school can deliver the special educational provision but whether it is appropriate for that provision to be made in school.
In making a decision the local authority must consider section 61 CFA 2014 and 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 considering these questions, the local authority 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:
- the child’s background and medical history;
- the particular educational needs of the child;
- the facilities that can be provided by a school;
- the facilities that could be provided other than in a school;
- the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
- the parents’ wishes (although they are not generally determinative); and
- any other particular circumstances that apply to a particular child
If the LA 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 (see EOTAS (EHCPs) below).
Taken from NN -v- Cheshire East Council (SEN) [2021] UKUT 220 (AAC) Upper Tribunal Findings.
Alternative Provision or EOTAS
When talking about the provision of education other than at school, there are generally 2 main terms used – ‘Alternative Provision‘ and ‘EOTAS‘. Whilst they are both essentially referring to the same thing, they are used differently depending on the circumstances (generally where there is an EHCP in place or not).
Where a different form of education needs to be provided by a local authority because a child cannot receive a suitable education at school, and there is not EHC plan in place, this is generally known as Alternative Provision. This may be for children who are too ill to attend school (either with physical and / or mental health needs), have behavioural needs that cannot be met through mainstream education (and the EHC plan is not yet in place), or have been excluded. Alternative Provision may be arranged through provision of a tutor, online learning, Alternative Provision College or places that offer such places alternatives as Forest School or Equine therapy etc. Sometimes this will be delivered alongside some form of education at school, but not always. It very much depends on the needs of the child. Usually however, it will be the school that the child is on roll at that will fund (or part fund) the alternative provision.
Where there is, or may be Special Educational Needs and a mainstream school setting is not able to meet those needs through their own resources, then an Education, Health & Care Needs Assessment (EHCNA) should be requested with a view to obtaining an EHC plan. Alternative Provision may be required whilst the needs assessment is taking place (as it will take up to 20 weeks (although often longer in the current climate)).
Whether school or college is appropriate or not will depend on the child or young person’s SEN and / or the type of the provision they need (for example, it might not be appropriate for certain therapies to take place in a school setting). Again, the question is not whether school can deliver the special educational provision but whether it is appropriate for it to be made in school.
More information can be found about what Alternative Provision is offered by West Sussex can be found via their Tools for Schools website
Where an EHC plan has been agreed or is already in place – and it is not appropriate for all of the special educational provision (SEP) to be made in school (or early years setting or college), this is generally known as ‘EOTAS‘ (Education Other Than At School). It is important to note that this is different to whether the school can deliver the SEP. The question is whether it is appropriate for a school to do this, not just whether it can deliver the SEP or not.
When we talk about EOTAS within an EHCP, it is generally referred to as an EOTAS ‘package’
Section I (where you generally find the name of the school, maintained nursery school, post-16 institution or other institution) must be limited to the name of 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. (SEND Regs Section 12). EOTAS cannot therefore be named in this section as it is not generally somewhere that can be attended.
** In line with these regulations, no school should be named in Section I if the child is not going to be physically attending (meaning ‘to be present at’) that school.
Instead, the EHC plan should reflect EOTAS through other sections:
Section B should set out all of their special educational needs as normal as one would if going to be attending school, but should also include any needs that show why education in a setting is not appropriate. For example, mental health or sensory needs.
Section F should give a clear and detailed description of the provision they require to meet the needs in section B. This could include therapies which are classed as educational provision, such as speech and language or occupational therapy. It would also include any other support provided by health or social care which educates or trains the individual child or young person.
It will be important to set out all the necessary details such as who will oversee the package of support, (in terms of role/qualification), who will deliver it and what particular expertise they may need, and any input needed from specialists. This is also where it would generally be stated that this provision will be delivered as ‘education otherwise than in a school’ here too.
Section I should be left blank if no setting is going to be attended at all. If the majority of the provision will be delivered through school then it may be that the school is named in Section I with a note that this is not full time.
Section J will detail the special educational needs and outcomes to be met by any agreed direct payments relating to section F. Not everyone will have a personal budget and receive direct payments, and you can find out more about them on our personal budget page.
If it’s inappropriate for some but not all of a child or young person’s special educational provision to be made in school/college, an EHC plan can cover this too.
Many of the calls we receive are because a child has been attending school but either their attendance or mental health has deteriorated significantly and parents no longer feel a school setting is appropriate. We would hope that conversations had been happening over a period of time and various support had been tried before reaching this point, and that the school are in agreement that something different is needed.
Regardless of this, an Annual review of the EHC plan is going to be needed. This may need to be an emergency or interim review if one isn’t already due. You will need to let your Planning Coordinator know that you are requesting amendments to the EHCP to reflect the fact that a school setting is no longer appropriate.
If your child is at a mainstream school, it is worth considering a special school placement first before requesting an EOTAS package, especially if no other reasonable adjustments could be made to meet their needs.
However, should it be accepted that no school setting would be appropriate then EOTAS will be required and the EHCP will need to be amended accordingly.
If it is not agreed or you feel the EOTAS package is not sufficient (as detailed in Section F) to meet all of your child’s needs (in section B) then you may need to consider Appealing to the SEND Tribunal. If a setting is named in Section I then you will need to appeal against the placement as well as the contents (section B&F).
More information about the type of alternative provision that could be offered by West Sussex as part of the EOTAS package can be found via the Tools for Schools website (or speak with your Planning Coordinator). Whilst these are generally offered through schools, this is usually because of funding arrangements and there is no reason why the LA cannot fund these as part of the EOTAS.
What if school is appropriate but there are no suitable places available?
Strictly speaking, the law doesn’t allow for the situation where attending a school setting is appropriate but there are no suitable school placements available (either because they are full or are not offering the specialist provision required). This is because there is an expectation that local authorities will provide suitable and appropriate settings for all the children in their area.
However, where the LA is not able to provide a suitable placement at a school, you may feel that having your child at home is preferable to them attending somewhere unable to meet their needs. This is NOT Elective Home Education and if you can show that the placement is unsuitable, then the duty would still be on the LA to secure and fund provision to provide a suitable education EVEN if this at home.
The LA may agree to provide a temporary package of support, in consultation with you as parents until a more permanent setting is found. This would not be EOTAS in the truest sense as education in a school would still be thought of as being appropriate (even though there may not be a school available)
Further Information
Elective Home Education – Departmental Advice for Parents
Elective Home Education – Departmental guidance for local authorities
EOTAS Guidance from the Local Government & Social Care Ombudsman