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The legislation which covers EOTAS is as follows: 

Section 7 of the Education Act 1996 states that parents must ensure that children of compulsory school age receive efficient full-time education suitable to:

• their age, ability and aptitude
• to any special educational needs they may have, either by regular attendance at school or otherwise

Sec 19 of the Education Act sets out the responsibilities of Local Authorities to arrange 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 such arrangements are made for them. 

EOTAS under Sec 19 is usually a short-term response to a particular circumstance, and any arrangements made by the Local Authority will normally be temporary. 

If your child has a health need, which means they are medically unfit to attend their educational setting, there are additional specific duties on the Local Authority to provide alternative education.

If a child or young person is going to be absent for more than 15 days due to health needs, the school have a duty to notify the LA who should ensure there is suitable education put into place. This should be a full-time education but is based on the child’s needs and what is suitable for them.

There is statutory guidance which sets out in more detail how schools and the Local Authority should support children with health needs who are unable to attend school: 

Sec 61 of The Children and Families Act 2014 states: 

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 Local Authority must consult the child’s parents or the young person.

You will need to be in the process of getting an EHCP or already have one in place. You can then request an EOTAS package as part of the initial EHC Needs Assessment process or ask for this at an annual review of the EHCP.

The request should be considered in conjunction with the parent or carer, the views of the child or young person and the Local Authority. The Local Authority must consider your parental wishes but will need to establish whether the evidence that EOTAS is necessary has been established.

The legal framework for the Local Authority to consider when a parent or young person makes a request for an EOTAS  package is as follows:

Section 61 CAFA 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 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 parents or the young person. 
   The Local Authority must therefore be satisfied that it would be inappropriate for the provision to be made in an educational setting such as a school or post 16 institution.

To support an EOTAS request, you will need to evidence that any nursery, school or college would be inappropriate, not just the setting which the local authority have suggested.

Evidence could include school reports, expert reports (for example from an educational psychologist, therapists, CAMHS and other appropriate professionals), your child or young person’s views and any evidence you have which shows the reason your child cannot attend any school.

These reports should explain the following:

• the child’s background and medical needs
• the specific needs that result in the child being unable to attend mainstream school, leaving no other suitable options
• quantified recommendations as to the provision that is needed ( the facilities that could be provided other than in a school)
• the comparative cost of the possible alternatives to the child’s educational provisions
• a proposed timetable or provision plan, including details of what the week will look like, who will do what, where and when, how many hours each person will be involved, where it is proposed the provision will be delivered, what programs or qualifications will be undertaken, and who will be involved in providing the program together with details of their qualifications
• whether any particular equipment will be needed
• if therapies will be needed, set out what therapies are required
• short and long-term outcomes of the provision
• the child’s reaction to education provisions, either at a school or elsewhere
• the parents’ wishes

The local authority can:

• fund EOTAS by payments directly to the providers who are working with your child
• or parents/carers can request a Personal Budget to fund some or all of the package through Direct Payments

Section F of a child or young person’s EHCP must specify the provision which will be delivered. If an EOTAS package is agreed, parent carers or young people will need to ensure that reference to EOTAS is specified in this section. 

Case law has determined that Section I of the plan (the setting) should be left blank, your child will not be on roll at a formal educational setting and the provision in regard to the EOTAS package should be set out in Section F of the EHCP. This section should be specific and quantify the provision that is to be provided.

An annual review must take place yearly and should be completed within 12 months of the initial EHC plan being finalised or within 12 months of the previous review. There is the same duty on the Local Authority to conduct an annual review when a child is educated otherwise than at school.

All timescales and obligations will remain the same throughout the annual review process however, the Local Authority may want to see ongoing evidence that it is still inappropriate for your child to be educated in an educational setting so you may wish to consider this evidence before the annual review takes place.

You will have the right of appeal in the following circumstances that may apply here:

1. A final plan is issued after the initial EHC needs assessment
2. A final amended EHCP after an annual review has been issued
3. A final amended EHCP is issued after reassessment
4. A refusal to reassess
5. A refusal to amend an EHCP after annual review
6. Appealing against an EHCP being ceased

If you are appealing based on situation 1,2 or 3 above, then you could directly appeal against the content and placement of the EHCP this being Sections B (needs), F (provision) and I (placement). 

The onus would be on you as a parent to provide evidence that it would be inappropriate for your child to attend an educational setting.

If appealing in situations 4-5 or 6 you would firstly need to appeal the refusal to reassess or amend and then this would give rise to an appeal against content and placement once an amended EHCP is issued, if still not agreed at this stage.

For more information see our SENDIASS guidance for mediation and tribunal webpage. 

If your child or young person has SEND but does not have an EHCP and you feel that their current educational placement is not working out for them or is in danger of breaking down, it might be worth speaking to the school or setting about reviewing their SEND support. For more information see our factsheet ‘SEN Support in schools’.
If things do not improve you could ask the local authority for an EHC needs assessment. This is a chance to identify all your child or young person’s needs and the support that they may need to learn. It might be, that with the right support, your child or young person could continue their education within their current setting.
Alternatively, they may require special educational provision which could be provided other than at school (EOTAS).

The Information Advice Support Service Network has released this briefing here: