- 29 Mar 2023
Yes. By section CFA2014 s61, an LA can make provision out of school if appropriate provision cannot be made in school, known as “EOTAS” i.e. Education Other Than At School:
“(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.”
This provides a discretion for the LA to provide any SEP which it has decided is necessary to be provided otherwise than in a school or institution.
Note: this is not the same as, and should not be confused with the situation in which a parent chooses to ‘home educate’ their child. More: 09.338 Is elective home education the same as EOTAS under CFA 2014 s61?
It has been suggested that CFA2014 s61 requires the LA to “decide that it is necessary for the special educational provision for the child or young person to be made otherwise than in a school", as well as consider the pre-condition that it would be “Inappropriate for the provision to be made in” a school: NN v Cheshire East Council (SEN)  UKUT 220 (AAC) #31. It is arguable what is necessary has been determined in deciding what provision to specify in Section F, and Section 61 only asks the single question of whether it would be inappropriate for that provision to be made in a school. This had been the case under the EA1996, where the first question to be asked is what does the CYP need (i.e. decide on Section F) and then decide if that can be provided in school: S v Bracknell Forest  ELR 51. However, it is unlikely anything turns on this issue as what is “necessary” to be provided outside of a placement and what would be “inappropriate” to be delivered in a placement are likely to result in the same outcome.
For guidance as to how to approach cases where EOTAS is proposed, see NN #47.
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