Key points to know about Education Otherwise Than at School or College (EOTAS/C)

Lydia Dunford-Anderson, Associate Solicitor in our Education Team, has written a book on EOTAS/C entitled ‘A Practical Guide to Education Otherwise Than at School or College (EOTAS/C)’, published by Law Brief Publishing Ltd. She has presented a webinar on this topic with SNAP Care. This is, therefore, a good time for a reminder on key points to know about EOTAS/C.

What is EOTAS/C?

Firstly, let’s clarify what EOTAS/C is. EOTAS/C is the legal term applied when a child or young person:

a) has special educational needs (SEN) and an Education, Health and Care Plan (EHCP), and

b) it would be inappropriate for them to attend an educational institution (i.e., a school or college) through standard classroom set-up

The provision under EOTAS/C would be detailed in Section F of an EHCP, with the educational placement, and type, in Section I, left blank.

We have articles and information about EHCPs on our website, including what is involved in the appeal process to the special educational needs and disability (SEND) tribunal.

EOTAS/C is a niche area of SEN law that can be complex, so it is important to have a good understanding of the legal requirements. If agreed that the above criteria are met, and the parents have been consulted, then the child or young person’s local authority will be responsible for funding and delivering EOTAS/C provision through their EHCP. This follows Section 61 Children and Families Act 2014.

What evidence is required?

Given the specific requirements for EOTAS/C, it is necessary to have relevant information and evidence ahead of seeking EOTAS/C from a local authority.  Whilst each case will determine the evidence needed, these are general points to consider:

• The child or young person’s views about their education and support required, noting the weight of such views generally increases with age
• The views of the child or young person’s parent/s. Often these are already available if they have asked the local authority to detail EOTAS/C provision in their child or young person’s EHCP
• Current/previous placement views
• Expert evidence – the scope of which types of experts will be required depends on the individual child or young person’s needs, with an Educational Psychologist generally considered a minimum

Case law has determined that “all the circumstances of the case in hand…” (TM v London Borough of Hounslow [2009] EWCA Civ 859) must be considered, and can (non-exhaustively) consist of:

• the child’s background and medical history
• their educational needs
• the facilities that can be provided by a school, and those that can be provided otherwise
• cost
• parental wishes

What EOTAS/C is not

In comparison, EOTAS/C is not:

• when a child or young person is medically unfit to attend school or college for a minimum of 15 days, and the aim being that the child or young person will be able to return to the setting after a period of support,
• the same as being excluded from school or college, or
• being electively home educated

What are the options if EOTAS/C is not agreed?

Depending on which stage of the EHCP process you are at, these are potential opportunities to query the local authority if EOTAS/C has been requested, but not agreed to:

• Draft EHCP response – before the local authority finalises the EHCP and becomes legally responsible for delivering the Section F provision (the Section which can include EOTAS/C provision)
• Appeal of the final EHCP – to the SEND Tribunal.  Negotiations with the local authority can continue through an appeal, with the aim to resolve without needing a hearing
• Mediation – ahead of lodging an appeal. This can be useful if there is new information/evidence about the EOTAS/C provision being requested

What about part-time school or college attendance?

There is scope for a school or college placement to still be name in Section I of an EHCP if a child or young person is attending for some of their educational provision; the key is that this is not happening through a standard classroom set-up. This follows the decision in NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC), which confirmed it is possible for pupils to have an EOTAS/C package that includes going to a school or college for some provision, such examples could be for hydrotherapy (if the placement had a hydrotherapy pool). The school or college would need to admit, or continue admitting, the child or young person, for as long as they are the named Section I EHCP placement. The only situation when this would not happen is if the school or college was a solely independent setting and has not agreed to a place. In these situations, a local authority or the SEND Tribunal cannot enforce the placement.

Final thoughts

EOTAS/C is an interesting and potentially complex area of SEN law, requiring an EHCP and clear evidence to support it being inappropriate for a child or young person to receive their educational provision through a standard placement set-up. This does not preclude them attending a setting for some provision, however, and each case where EOTAS/C is involved differs from others. This is why it is important to seek specialist legal advice if you have any queries about EOTAS/C.

The Boyes Turner Education Team can be contacted on 0118 467 6547 or via senexpertsolicitors@boyesturner.com.