Education Otherwise Than At School - or EOTAS - is where the local authority is responsible for the provision of education when a child age 5 - 16 does not attend school. It comes under section 19 of the Education Act 1996. Ultimately it is the local council that has the legal duty to arrange alternative education, not the school or any other service commissioned by the LA.
Section 19 Duty
"Each local authority in England shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them." [[s 19 (1)]Section 19 covers "illness, exclusion or otherwise" not just illness or exclusion. The Ombudsman says "'Otherwise' is a broad category which covers circumstances other than illness or exclusion in which it is not reasonably possible for a child to take advantage of any existing suitable schooling." This specific phrase is derived from G, R(On the Application Of) v Westminster 2004 further discussed below.
Severe anxiety preventing the child from attending school may fall into the 'otherwise' category. The law does not support local authorities saying they only have to provide EOTAS if there is medical evidence eg from CAMHS. See this Ombudsman decision re Oxfordshire about medical evidence, December 2022 plus this LGO decision re Surrey October 2022 and this decision, also Surrey.
If the child is not attending by reason of illness or otherwise there is no deadline set out in law by which the LA must assume responsibility. However, statutory guidance says local authorities should provide education "as soon as it is clear that the child will be away from school for 15 days or more."
The section 19 duty is not triggered if parents take their children out of school and say that they are going to home educate.
The section 19 duty may be triggered when parents are treated as if they are home educating but where they have told the local authority that this is not the case. (NB the provision of EOTAS is not the only option in this scenario; for example the LA may take steps to facilitate - or even enforce - school attendance instead.)
The s 19 duty may be triggered if a mainstream school refuses to deregister for home education eg saying it must wait until an EHCP review has been completed, as in this Ombudsman decision re Sandwell.(See my page on deregistration here.)
The child does not have to be on a school roll to get EOTAS (ie for there to be a specific school where the child is registered but unable to attend). For example, it can be very difficult to find a school place outside the normal admissions round eg where the family has moved house, or where parents want to stop home educating (or argue that they never WERE home educating) These cases may fall into the 'otherwise' category triggering the section 19 duty for the council.
Suitable Education
'Suitable education' in terms of section 19 is defined as efficient education suitable to the child or young person's age, ability, aptitude and special educational needs [[s 19 (6)(d)]This means that EOTAS under s 19 does not have to be full time "if the local authority consider that, for reasons which relate to the physical or mental health of the child, it would not be in the child's best interests for full-time education to be provided for the child."" [See s 19 (3AA)]
The council will need to justify why reduced hours are in the child's interests rather than for example in the interests of saving the council money or because it is difficult to find tutors.
One-to-one tuition is regarded as more concentrated and intense so the hours may legitimately be lower than in a normal school week, but there could still be an issue if tuition is only provided in a narrow range of subjects.
Alternative provision will not be efficient or suitable if the child or young person cannot access it. The educational provision has to be "available, possible, and accessible to the child" [LB, R(On the Application Of)v Surrey 2022]. For example, the young person may be too anxious to attend a tuition centre, or may be unable to complete worksheets or engage with online learning on their own at home without the direct teaching support that they would have received in school. See this Ombudsman decision re Oxfordshire about lack of direct teaching, December 2022.
EOTAS With EHCP
Where a child with special needs has an Education Health and Care Plan the local authority has additional duties in law. Specifically, under section 42 of the Children and Families Act 2014 LAs are responsible for ensuring pupils receive the special educational provision set out in Section F of their EHC Plans.
Section 42 Duty
"(1)This section applies where a local authority maintains an EHC plan for a child or young person.(2)The local authority must secure the specified special educational provision for the child or young person.
(3)If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person.
(4)“The responsible commissioning body”, in relation to any specified health care provision, means the body (or each body) that is under a duty to arrange health care provision of that kind in respect of the child or young person.
(5)Subsections (2) and (3) do not apply if the child's parent or the young person has made suitable alternative arrangements.
(6)“Specified”, in relation to an EHC plan, means specified in the plan." [[s 42]
My page about EHCPs can be found here. My page on annual reviews is also relevant as it explains the position regarding an interim or early review.
Different rules apply in different situations when a child with an EHCP is not in school depending on various factors. In some circumstances the child or young person may be entitled to EOTAS provision, but this does not necessarily mean that families are entitled to a specific type of provision such as home tutoring. My page on personal budgets and direct payments is here
Making The Council Aware
Parents should make councils aware as soon as there is an issue because the section 19 duty isn't triggered if the authority can plausibly claim it didn't know there was a problem. A formal complaint at an early stage may move things along more quickly and will also give access to the Ombudsman. My page on complaints is here.
The Ombudsman's Focus Report on Children Out Of School says "When a child of compulsory school age cannot go to school, the local authority must find out why. If there is a duty for it to act, it must make alternative arrangements to provide a suitable education." [LINK]
Hospital and Home Education
Some local authorities delegate alternative provision to a hospital and home education service or academy which may have a waiting list or impose restrictive criteria for access such as a medical assessment, or require the child to be on a school roll and for the school to make a referral. Ultimately however, the section 19 duty still rests with the local authority and the LA can - and should - be held accountable, as demonstrated in this Ombudsman decision re Sandwell 2020
Alternative Provision School
Sometimes the main EOTAS link that comes up in a search engine is an alternative provision school or academy. Closer inspection may reveal that this is a PRU [Pupil Referral Unit] Click here to find details of schools on the GOV.UK site (previously called Edubase) It may be primarily for pupils with "behaviour" issues, or the child is required to have an EHCP or must physically attend the provision rather than eg being offered a home tutor. As with Hospital and Home Education, commissioning an AP school which sets its own policies does not absolve the LA of its wider section 19 duties.
Judicial Review
Judicial review looks at whether the actions of a public body were unlawful which is defined as inconsistent with the statutory framework and any government guidance in place. Read the Administrative Court Guide here
Judicial review can also consider whether a public body's decision was unreasonable. However, in the specific context of judicial review, unreasonable is defined as so unreasonable that no reasonable person acting reasonably could have made it ie that it was irrational, or if the public body took into account an irrelevant consideration or failed to take account of relevant considerations, often referred to as Wednesbury unreasonableness. (See this case for a summary)
Given the strict limits on what is deemed unlawful or unreasonable it appears to be very difficult for parents to succeed in a section 19 JR case, particularly if there is no EHCP, compared for instance with the proportion of s19 alternative provision cases upheld by the Ombudsman
The judicial review decision serves as case law and sets precedent for subsequent cases. A s 19 case which is ofen cited is G, R(On the Application Of) v Westminster 2004 where parents refused to send their son back into school after he was temporarily excluded (suspended) The father's position was that the boy had been bullied and that depression and stress prevented him from returning to school. However, in examining the specific facts of the case, the judge found that the school did remain suitable and that the father had not acted reasonably in removing his son when there was no alternative school available.
In a 2017 s19 case parents refused to send the boy back into school after a safeguarding incident The judge addressed himself to the issue of whether the boy COULD return to school (since if this were the case, the s 19 duty would not be engaged) and found that it WAS possible - for various reasons specific to the case in question. The judge's summary is below:
Judicial Review EOTAS Acid Test
"(i) Section 19 is intended to cover circumstances in which it is not reasonably possible for a child to take advantage of existing suitable schooling.(ii) The fact that parents have misconceived objections to their child attending a particular school does not mean the authority is obliged to make alternative arrangements.
(iii) There may be exceptional circumstances where there is no physical impediment to the child attending the school, but it is nonetheless not reasonable to expect the child to attend that school.
(iv) Where that latter question arises, it is to be answered objectively, not by reference to the parents' view of the facts. (v) The acid test is whether the educational provision offered by the local authority is available and accessible to the child." DS, R(On the Application Of) v Wolverhampton 2017
The judge in a 2020 s 19 case ruled that it was not unreasonable (in JR terms as above) for the LA to decline to follow the advice of a professional instructed by parents in the matter of a child's ability to attend school (and therefore whether the s 19 duty was engaged) The judge determined that the psychiatrist's view was derived solely from information given by parents and hence that it was not unreasonable of the LA to weigh this in the balance with other evidence particularly evidence from the boy's school. [D, R (on the application of) v Hampshire]
In a 2022 case the judge found that the s 19 duty is not discharged by an attempt to make arrangements. [LB, R(On the Application Of)v Surrey.] Read more here
Registered Pupil
Please note that in all scenarios where the non-attending child is a registered pupil the family may find that rather than being offered alternative provision they are threatened with sanctions (fines, court etc) for non-attendance, and/or it is treated as a welfare or safeguarding issue. I recommend formally requesting a copy of the attendance records from the school to check the codes for how absences are being marked (authorised, unauthorised, illness etc) In the case of truancy the parent does have a defence in law of "reasonable justification" as explained here. Formal complaints against safeguarding interventions and investigations are rarely upheld by the Ombudsman but breaching the section 19 duty by failing to arrange alternative provision is a separate injustice where the Ombudsman regularly finds councils at fault.
- The child is a registered pupil at school but struggles to attend and then stops altogether
- The child has never gone back to school after some incident or illness or after the school has been closed eg due to covid
- A suitable school has been identified but the child has not managed to attend
- A school has been named on the EHCP but the child has never been able to attend
- The LA has issued an EHCP without naming a school but has named a TYPE of school it considers suitable
- The LA has issued an EHCP with a school named for a later date (including where currently non-attended school remains named)
- The LA says all schools consulted have refused
- The LA says -or concedes - that provision SHOULD be made at home (s 61 Children and Families Act 2014)
If the child is on a school roll and has attended in the past however minimally but is not attending currently then the section 19 duty may be engaged. It depends on a range of factors such as the reason(s) why the child is not now attending; how long the child has not been attending; whether the school has put any alternative education in place; whether the child is able to benefit from what is offered; whether there is a plan for re-engagement; and whether the authority has been made aware of the situation.
In the case of not returning to school it will depend on the facts of the case because the authority may in some circumstances determine that the parent is refusing to send the child back but a school place remains available (either at the current school or a different school). See this Ombudsman decision October 2022.
If the child has NEVER attended the named school then the section 19 duty may be engaged, and if the child has an EHCP then the authority will have additional legal duties to take into account such as the section 42 duty. As in other situations, it may hinge on the reason(s) why the child is not attending and on the authority having been made aware that the child is not attending (and not receiving special educational provision if applicable)
The child becomes a registered pupil from the "expected first day of attendance" which is the first day that the parent has agreed or notified the school that the child will attend. [Source = Regulation 5]This means that parents can decline the school place BEFORE the child is first due to attend, rather than "deregistering". See my pages on home education law and deregistration
Where a school place has been declined parents may find they are treated as if they have opted out ie the LA does not have to make provision because the section 19 duty is not triggered. Alternatively the school may be advised to keep the child's name on roll and for the absence to be marked as unauthorised until the situation has been clarified as to whether parents have agreed they will home educate (which may be experienced by parents as either being pressured to home educate or being coerced NOT to home educate)
Where a new school is named on the EHCP for a later date but the current non-attended school remains named for the present both the section 19 duty and the section 42 duty may be triggered in the interim, depending on factors in the individual case. Where no school is named for the intervening period the LA will have a duty to make alternative provision, including special educational provision unless parents have specifically confirmed they will take responsibility themselves.
The LA is not absolved of its legal duty simply by naming a stopgap school for the present, but it may be easier to prove fault and injustice after the event than to enforce the duties at the time. The parents' case will be strengthened if the school is clear that it is unable to meet the child's needs as shown in this Ombudsman decision re Worcestershire, October 2022. Conversely the LA's case will be improved if the school states that it remains suitable.
Related Pages
Complaints/Ombudsman Using the formal complaints processChild's Right to Education The law is phrased in the negative -"no one shall be denied the right to education"
The Law Starting page for law relating to home education
Deregistration Taking a child out of school
SEN Introduction home education and special needs
SEND Code of Practice two types of home education with an EHCP
Personal Budget and Direct Payments for education with EHCP (EOTAS)
NN v Cheshire East An EOTAS case I won at the Upper Tribunal in 2021
SEN Tribunals
