Q:
Legally, can the LA name a special school on the current EHCP, specifying a start date for next September (2024), and stating that they agree EOTAS until then?
We suspect that the school is unsuitable for our daughter aged 12. The LA have offered EOTAS in the interrim, until the school place becomes available in a year's time. We do not know whether know whether our daughter will be in a condition to be able to go back to school at that point, but suspect not, so would prefer the EOTAS to be unlimited.
A: SenseCheck
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- 12 Sep 2023
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Yes
Simple
Your question has multiple aspects, but I'll provide a concise response as this may be of more assistance.
The Noddy Guide addresses situations where school attendance is delayed due to the absence of special educational provision specified in section F being in place.
Your situation differs given what you have said. The Local Authority's decision to name the special school in section I is speculative. It assumes there might be a place for your daughter in special school and that it will be appropriate for her in 12 months. It is unclear to me how they can reasonably hold this position.
I suggest the Local Authority should have amended the EHCp to include EOTAS (which shouldn’t be in section I) and they address the issue of placement at the next review meeting should this be necessary. As I am sure you know, the timing of the next review meeting depends on the last review of the EHCp, but I suggest it should be in good time before the start of the next academic year.
Moving forward, you can raise this matter in mediation or, if needed, seek assistance from the First-tier Tribunal (FTT). You do have the option of simply addressing this at the next review meeting, but you are really best placed to decide on the value of this approach.
I strongly advise you to consult the Noddy Guide sections on EOTAS and also on section I. In both these areas, it does an excellent job in explaining the legal framework
Lastly, EHCp’s are subject to review and potential amendment at least every 12 months. This means EOTAS, or anything else for that matter, cannot be "unlimited" or unchangeable. Having said that, any changes must be evidence-based, and if you disagree with the Local Authority's amendments, you can appeal to the FTT.
I hope this information is helpful, and I welcome contributions from others on this topic.
Sean Kennedy
Talem Law
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