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• 05 Feb 2024

• Yes

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  A: NO

  Thank you for your query. In summary, there exists no legally prescribed list detailing what can or cannot be incorporated within an EOTAS (Education Otherwise Than At School) package which can be provided to both children and young persons.

  As you may already be aware, EOTAS is provided under Section 61 of the Children and Families Act 2014, rendering it legally distinct from the Local Authority's responsibilities under Section 19 of the Education Act 1996. In EOTAS there is ostensibly no distinction when compared to what would typically be provided in a ‘standard’ Education, Health, and Care Plan (EHC plan). However, in Section 19, there exists a suitability constraint, introducing an element of subjectivity on the part of the Local Authority when determining the special educational provision to be implemented or ‘made’.

  While a Local Authority may maintain a list of special educational provision commonly utilised in EOTAS packages, which might mirror its provision list for Section 19, in practice it is crucial to understand that there is no legal reason an EOTAS package should be formulated by restricting the special educational provision a child or young person receives to address their specific educational needs, as detailed in sections B and F of their EHC plan.

  Section 61 of the Children and Families Act 2014 relates to whether or not the Local Authority has decided that special educational provision that it has decided is necessary for a child or young person for whom it is responsible is to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided. Put differently, this pertains to the delivery of special educational provision that is really needed to meet a child or young person's special educational needs but is to be provided in a manner different from the usual school-based approach found in schools, colleges, and similar institutions.

  In simple terms, it involves a two-part test: first, identifying the special educational provision genuinely needed to address identified special educational needs, and second, examining why this provision should not be delivered in a conventional school setting and deciding it should not be. Meeting this second part of the test is really what makes EOTAS different and is a decision made by the LA, albeit if a parent or young person disagrees with the LA’s decision they can seek the assistance of the FtT.

  In relation to the point you raised,  it is essential for parents (or young person) to demonstrate to the Local Authority why any activities they are seeking for their child as part of an EOTAS package are necessary to address the child's specific educational needs and how these activities can be construed as being part of the special educational provision specified, quantified and detailed in the EHC plan. It follows, if needed they should explain why other proposed activities would not meet the child's/ young person’s identified and stated special educational needs. While an educational psychologist's report can serve as valuable evidence for these points, recommendations from other experts such as teachers, therapists, parents, and, of course, the child or young person themselves, are also valid.

  We strongly recommend a thorough review of the Noddy Guide, which includes a subsection on EOTAS as part of Section 9. By any objective standard this is an excellent resource and merits careful examination.

  We trust this is of assistance and please post any further questions should you have any. 

  

  Sean Kennedy
  Talem Law

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