Thomas Amraoui analyses a recent Upper Tribunal ruling on how EOTAS (‘Education Otherwise Than At School’) operates under the Children and Families Act 2014.
EOTAS is made possible by section 61 of the Children and Families Act 2014. Under section 61, local authorities have the power to consent to a child or young person with SEN being educated somewhere other than a school or post-16 institution (typically at home), but only where the authority is satisfied that “…it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.”
Similar (but not quite identical) provisions existed under the Education Act 1996. Until recently, however, there has been little if any case law on how EOTAS should operate under the new regime. Happily, some clarity has now been provided by the Upper Tribunal in its decision in M & M v West Sussex County Council (SEN)  UKUT 347.
The decision in M & M recognises that EOTAS has been carved out by the 2014 Act as a discrete status in appropriate circumstances. But the decision also appears to attach two important conditions to this. First, section I of the EHCP cannot in these (or indeed any) circumstances be left blank (it must name at least the type of school to be attended, if not the particular school or other institution to be attended). Second, whilst it is possible where section 61 applies to make EOTAS provision in section F, any such provision must be framed either (a) with the ultimate aim of getting the child into a school, or (b) as part of a mixed package of education in and out of school.
Quite how first-tier tribunals and local authorities will apply these principles remains to be seen. It is clear that section I cannot lawfully name the child or young person’s home (East Sussex CC v TW  UKUT 528 (AAC)) so, at a bare minimum, it seems that the type of placement that would be suitable for the child or young person must still be named in section I even where EOTAS applies. Further: in cases where even part-time school attendance is inappropriate, how are local authorities and tribunals meant to approach the task of crafting EOTAS provision in such a way that it can be shown to meet the ultimate aim of getting the child to attend school? Must section F incorporate some kind of transition plan? This would make sense if EOTAS is only ever meant to be treated as a stop-gap and short- term emergency (such as where a child is temporarily unable to attend school for medical reasons) but in cases where EOTAS is envisaged to be longer lasting the correct approach is much less clear. It is likely that further guidance from the Upper Tribunal will be required to answer these and other questions.