Can a lack of local provision justify EOTIS?
In this article, the acronyms “EOTAS” and “EOTIS” are used in order to distinguish between two different statutory routes for education outside a school setting:
- EOTAS: “education otherwise than at school” under s19 Education Act 1996. This refers to suitable education arranged by a local authority for a child who, by reason of illness, exclusion or otherwise, may not receive suitable education unless such arrangements are made.
- EOTIS: “education otherwise than in a school” under s61 Children and Families Act 2014. This refers to special educational provision secured otherwise than in a school and specified in section F of an EHCP, where the local authority is satisfied that it would be inappropriate for the provision to be made in a school.
The basics
EOTIS is the operation of the wording of section 61 of the Children and Families Act 2014:
(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.
The section applies in respect of a child or young person’s EHCP when a local authority decides that it would be inappropriate to deliver certain wording in section F of that EHCP is in a school (or suitable equivalent based on age of the EHCP subject, but we will stick to school for ease of reference). This wording will typically be phrased as a certain number of hours of 1:1 tuition, plus additional support such as therapies, community access and enrichment activities.
In NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC), Judge Rowley laid out the approach to be taken, at paragraph 47. In summary, it is to evaluate each element of provision in section F and decide the appropriateness of providing that provision in a school for the child in question. The question of deciding appropriateness is anchored in a range of factors set out in paragraph 26 of TM v London Borough of Hounslow [2009] EWCA Civ 859 (11 June 2009), a non-exhaustive list to include the child’s background and medical history, their particular educational needs, the facilities that could be provided other than in a school, comparative costs and so on.
The usual operation of section 61 is anchored, therefore, in asking “could this provision be delivered to this child in a school?”. Usually, the answer that leads to EOTIS being ordered by the tribunal or alternatively agreed by the local authority is “no”, with the reason being something very fundamental preventing school from working as an option. Perhaps the most common, or certainly the most conceptually straightforward reason, is that the child or young person is suffering from a significant difficulty in attending school due to anxiety, or they have such a high level of demand avoidance that accepting any kind of conventional schooling becomes near-impossible.
When the lack of suitable local options is the barrier for school-based provision working
Where the application of section 61 becomes tricky is when the child in question could theoretically be educated in a school, if an appropriate school were within a suitable commuting distance, but in practice there is no such option. This could be called a “practical” requirement for EOTIS rather than a categorical one.
The standard “order of operations” when dealing with populating section F of an EHCP is that the local authority identifies the needs of the child or young person in section B, then outcomes for them in section E, then provision they require to have their needs supported and their outcomes met in section F, and then finally once all of this has been completed, the school that can meet their need in section I.
However, one does sometimes deal with the fairly muddy concept of “if the child attends a mainstream school, they will need X additional provision, but if they attend a specialist school, then they probably don’t need that”: one doesn’t standardly write provision in section F that states “if X type of school is written into section I, then Y provision”. So, in truth, in some situations there is perhaps a more nuanced holistic consideration of the case, where there is a decision about what school the child will attend, and then the type of appropriately layered on provision is decided on, and this involves a “look forward” while drafting section F provision, as to what is going to end up in section I.
This slight tension in the way wording is decided on in section F, with essentially an iterative “look forward” to section I before finalising all elements of its contents, certainly may also exist in EOTIS. One does often see judgments from the tribunal which can be paraphrased as “having decided the child will receive EOTIS, there is no need to specify in-school provision”. This may have involved consideration of the school put forward by the local authority (if it has put forward a school) as an alternative to EOTIS.
In the “practical EOTIS” situation, it is stark. One could write out a raft of provision that the child could realistically access in a suitable specialist setting. This would be provision that the child reasonably required, and it would be possible of delivering in the right setting. Then, one would be able to write in a “type” of provision into section I, as a special school. In theory, this would all be correct and entirely technically defensible. But in the situation where there is credible evidence to show that, if the EHCP is finalised like that, the child simply will receive no education, as there is no practical way to make the EHCP as written “happen”, the resulting state of affairs would have been a triumph of technicality over practical reality.
There is no criterion provided in Hounslow that supports “practical EOTIS”, and, absent clear guidance from the Upper Tribunal or any more senior courts on the point, I would suggest that one effectively has to posit that a factor that should be considered is the practical reality of the matter, and this “look forward” to what is going to be in section I.
The evidence for “practical EOTIS”
As to how the point would be considered evidentially, I would suggest the relevant evidence would likely be concerned with showing:
- What is potentially available in the local area and why it would not work.
- Why the child cannot attend a residential option.
- Why the child cannot travel the distance to the nearest option that could work.
The informed professional judgments of experts, e.g. an educational psychologist, clinical psychologist or occupational therapist, could all provide insight into the above. Additionally, one could collect information from relevant schools, such as statements or responses to questionnaires, as well as views from the child’s previous school or anyone they are currently receiving tuition from.
I think all three of these categories of “objections” would need to be dealt with, or at least be capable of being dealt with, as the general operation of the law as set out by Parliament is a preference for in-person tuition at a bricks-and-mortar institute, and that is understandable. Indeed, with the white paper, the Government has targeted the concept of inclusion and although it hasn’t directly dealt with EOTIS, it has shown a direction of travel with strengthening the rights of local authorities in relation to overseeing elective home education.
Conclusion
Generally speaking, as a practitioner representing parents who are seeking EOTIS for their child, I would always seek to develop a case about how the child’s needs straightforwardly call for EOTIS. But if a good quality independent expert, or set of independent experts, are instructed by the parents, and they recommend that in theory the child’s needs could be met in a suitable specialist setting, if there is nothing realistically accessible to the child, “practical EOTIS” as set out above would be the “fall-back” option I would then develop.
Until we have clear guidance from the Upper Tribunal, Court of Appeal or Supreme Court, this concept is one that will be decided on a case-by-case basis from tribunal panel to tribunal panel. “Practical EOTIS” is not a clearly set out legal concept in law, guidance or case law and should not be treated as some kind of racing cert in any case.