EOTAS Case Law Leaving Section I Blank

NN V Cheshire East is a case I won at the Upper Tribunal in 2021. It provides guidance on section 61 of the Children and Families Act 2014 related to Education Otherwise Than At School [EOTAS] arranged by the local authority where it is inappropriate for provision to be made in a school. (In this particular case it was agreed intended that the child would not attend the school so the question arose as to whether the school could still be named in Section I of the EHCP)

Read more about EOTAS here and Personal Budgets for EOTAS here. NB the SEND Code of Practice does not use the term EOTAS but instead refers to situations “where local authorities and parents agree that home education is the right provision”. Read my page on the Code here.

NN v Cheshire East builds on and goes further than Derbyshire v EM and DM  2019 which dealt with confusion at the time over whether it was always NECESSARY to name a school. NN v Cheshire East meanwhile was about whether a school necessarily SHOULD (or even COULD) be named.

The parent in NN v Cheshire East took the case to the Upper Tribunal on the basis that the First-tier Tribunal had erred in law on a number of grounds by naming a school in Section I.

The Upper Tribunal agreed with the parent and upheld the appeal, ruling that the contents of Section I had not been decided correctly firstly because there had been insufficient consideration of the appropriateness of school ie whether school would ‘not be suitable’ or ‘not be proper’; secondly that it would not be right to name a school where the child would not attend (even with a wide interpretation of “attendance”) and thirdly that it was not legitimate to add further descriptive terms to Section I. Read more about the rules for different sections of the EHCP here.

Section 61

(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.” [SOURCE]

Inappropriate for Provision to be made in School

At the Upper Tribunal HHJ Rowley gave the following guidance for EOTAS cases [see paragraph 47 Summary and guidance page 11] :
“a. The tribunal must consider section 61 CFA 2014. It must separately ask whether it is satisfied that it would be inappropriate for (i) any special educational provision that it has decided is necessary for the child to be made in any school and (ii) any part of the provision to be made in any school.
b. In considering these questions, the tribunal must ask if a school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case. Without being an exhaustive list, those circumstances might include:
i.the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow (above).
c. If the tribunal is satisfied that it would be inappropriate for any such special educational provision to be made in any school, then Section I must be left blank.”

Attending School

In deciding whether it is permissible to name a school the tribunal must consider whether the school will in fact be “attended” by the child, bearing in mind that attendance does not have to be full time and is not limited to the classroom. Attending provision provided by the school at an alternative setting outside a conventional classroom setting still means the child is attending, but NOT where provision is delivered at the child’s home because home is not a setting [see East Sussex 2016 ]

Additional description in Section I

The Upper Tribunal confirmed as per Regulation 12 and following previous case law in East Sussex 2016 and Derbyshire 2019 that what is specified in Section I must be strictly limited to the name/and or the type of the school to be attended ie that it is not permissible to include phrases about “bespoke provision” (or eg “parents’ arrangements”) in Section I.

School Must Not Be Named

Where a child has an Education Health and Care Plan and there are strong indications that a child will not attend school eg because of something in the child’s background or medical history -including eg the child’s own strong views or levels of anxiety or fatigue, or where there is something particular in the child’s educational needs, then proper consideration of these factors may lead the local authority – and if relevant the tribunal – to conclude that it would be inappropriate for provision to be made in a school. In such cases a school must not be named as the placement in Section I irrespective of whether the local authority wishes the school to deliver an outreach programme or bespoke package of education. Read my page on SEND Tribunals here.

This is a significant ruling because of what may follow from a school being named in Section I “just to get the funding” but where a child is not expected to attend. This may include the parent being accountable to the school for provision made by the parent during “school hours”; the child being treated as a pupil who should really start attending or joining in with school; or the child being treated as a pupil who cannot be taken off roll without the LA’s consent.

Proposed New National Standards

In May 2024 the Department for Education proposed new national standards for alternative provision including for children receiving EOTAS via an EHCP. I explain more here https://edyourself.org/unregistered-alternative-provision-new-rules/ CONSULTATION CLOSES 5.7.24

Section I Elective Home Education

NB there are other situations where a child with an EHCP does not attend school but is receiving elective home education ie the parents are making their own provision. Read my page on home educating with an EHCP here. The SEND Code of Practice describes this as “where the EHC plan gives the name of a school or type of school where the child will be educated and the parents decide to educate at home”. Read my page on the Code here. In such a scenario, Section I will NOT be left blank – it will have the type of school. It should NOT say anything about home education because as above the only permissible contents of Section I are the name and/or the type of school.