Sort

• 16 Oct 2022

• Other

  Simple

  Can't answer yes or no.:

  I am assuming a child has an EHCp. Further, I would be very interested to read the feedback from others.

  There has been a few UT cases about EOTAS and section I relatively recently.  In  Derbyshire County Council v EM and DM (SEN): [2019] UKUT 240 (AAC) the UT stated that there is there is no unconditional legal requirement that all EHC plans must specify a school or other institution (or type of either) in Section I – the special educational provision needed being identified in section F . It follows that, in such cases where section I does not contain a school etc, intuitively it would be difficult to justify keeping a child on the roll.  It is easier to see why a school would keep in touch with a child/ parents  if the mutual expectation is that they will return to school. 

  More broadly, anyone considering EOTAS is strongly advised to examine in full UT Judge Rowley’s advice in para 47 of NN V Cheshire East Council (SEN): [2021] UKUT 220 (AAC), which is:

  1. Against this background, I give the following guidance to tribunals considering cases such as this where bespoke provision of education outside a conventional classroom setting and education otherwise than at school are proposed by the parties. a. The tribunal must consider section 61 CFA 2014. 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. 
     1. b. In considering these questions, the tribunal 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: i. the child’s background and medical history; 
     2. ii. the particular educational needs of the child; 
     3. iii. the facilities that can be provided by a school; 
     4. iv. the facilities that could be provided other than in a school; 
     5. v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere; 
     6. vi. the parents’ wishes (although they are not generally determinative); and 
     7. vii. any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow (above)). 
     8.  
     9. c. If the tribunal 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. 
     10. d. Conversely, if the tribunal is not satisfied that it would be inappropriate for any such special educational provision to be made in any school, it follows that a particular school or type of school would be appropriate for the child (Derbyshire County Council v EM and DM (SEN) (above)) in relation to at least part of the provision to be made. This will lead to consideration of what should be specified in Section I of the EHC plan. That, in turn, will involve consideration of regulation 12 of the 2014 Regulations. 
     11. e. If a particular educational institution is proposed, and if it is in issue as to whether or not that institution is a ‘school’, the tribunal must consider whether it falls within the definition of a ‘school’ as set out section 4 of the Education Act 1996. This is a question of fact to be determined in the light of all the evidence including, where relevant, matters such as regulation governance, financing and administration (MA v Borough of Kensington and Chelsea (SEN) (above), TB v Essex County Council (SEN) (above)). 
  2. f. If it is in issue, the tribunal must consider whether the school or type of school will be ‘attended by’ the child. If it is satisfied that the child will be present at a school or type of school for at least part of the time, that is sufficient and so the school or type of school must be specified in Section I. Attending provision provided by the school as part of a bespoke package outside a conventional classroom setting will nonetheless mean that the school is to be attended by the child within the meaning of regulation 12(1)(i). 
  3. g. What is specified in Section I must be strictly limited to the of name 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. No more and no less. 
  4. h. For the avoidance of doubt, education in a child’s home cannot be named in Section I (East Sussex County Council v TW (above)). 
  5. i. Any special educational provision which will be made otherwise than in a school or type of school will be set out in Section F. 

   

  The full decision can be found here:

  https://www.gov.uk/administrative-appeals-tribunal-decisions/nn-v-chesire-east-council-sen-2021-ukut-220-aac

  There could be an opportunity for the more guidance on EOTAS to be contained in the next version of the Noddy Guide. 

  

  Sean Kennedy
  Talem Law

2 This is helpful

|

1 Comment

Post