The Department for Education is proposing to introduce new national standards for alternative provision at compulsory school age and to set time limits for how long pupils can remain in alternative provision without allowing them to return at least part-time to their home school. There will also be new rules for children unable to attend school and for those receiving EOTAS (part-time or full-time) via an EHCP.
A CONSULTATION OPENED FOR FEEDBACK ON MAY 9TH 2024 AND WILL CLOSE ON JULY 5TH – LINK HERE. I have highlighted some initial comments below
Under the proposed new system, local authorities would publish lists of approved providers judged to meet national standards in their area and schools could only use providers from the approved list.
The national standards system would allow the alternative provision sector to be regulated without requiring registration as an independent school which many people believe is not relevant or applicable in the alternative provision sector but which up till now has been the only route for regulation. Alternative providers serving school-age children currently opt to stay below the hours limit for registering as a school. I explain about independent school registration here https://edyourself.org/unregistered-schools/
Alternative provision may be referred to as AP or EOTAS [Education Otherwise Than At School] Sometimes a distinction is made between AP for children out of school versus EOTAS specified for children with an EHCP. Alternative provision may be commissioned by a school or by a local authority.
In 2022 the government put out a call for evidence on the use of alternative provision. In May 2024 it published a summary of responses and set out its plan for a new light-touch quality assurance framework underpinned by national standards which can be read here linked from this page.
The SEND and Alternative Provision Improvement Plan published in March 2023 opened by noting that 82% of children and young people in state-place funded alternative provision have identified special educational needs.
Meanwhile in 2023 Ofsted SEND inspections began looking at local authorities’ oversight of alternative provision. Ofsted published its first research report in February 2024 recommending “a proportionate registration system for all AP”, having previously called for alternative provision settings to be registered as schools.
New National Standards
The new national standards for alternative provision will cover 5 main themes
- safeguarding and the wellbeing of children
- health and safety
- admissions, guidance and support
- the quality of education
- the outcomes of children
Time Limited Provision For Children On School Roll
It has become increasingly evident that some pupils remain in alternative provision for long periods of time, especially children with special educational needs. The government now proposes to set time limits for AP where a child is still on roll at a school. Full-time (5 days a week) AP – via an approved provider as above – will only be allowed for 12 weeks. If the AP goes beyond 12 weeks it must only be part-time, with pupils spending the rest of their time at their named school.
Setting time limits seem designed to address the situation where schools are sending pupils offsite due to dysregulated behaviour which mainstream schools can no longer contain, especially when the EHCP [Education Health and Care Plan] process is delayed or there is a long wait for a specialist placement. Ofsted has reported on this here and here.
Children Permanently Excluded From School
The new AP system would apply differently when children are no longer on a school roll. When a child is permanently excluded from school the local authority has a duty to make suitable arrangements for the child’s education. Rates of exclusion – both temporary and permanent – are consistently higher for children with special educational needs [SEND] than for those without.
The government is proposing that if a child is permanently excluded, the local authority will NOT be able to send a child directly to an unregistered provider even from the approved list and instead will have to “use schools (including alternative provision or special schools), accredited online education providers, or provision for 14–16-year-olds in Further Education colleges when fulfilling their section 19 duties for children not on a school admission register.” [Consultation document page 23] It is difficult to see how this will work in practice given the chronic and widespread shortage of alternative provision schools and special school places. It also seems aimed more at secondary than primary.
Section 19 Illness or Otherwise
The LA’s s19 duty also goes beyond provision following permanent exclusion and this is where things get complicated. Section 19 says “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.” Read more about “illness or otherwise” duties here including links to case law from judicial review plus Ombudsman decisions.
There appears to have been relatively little thought given to the illness category of s19. If the child is still on roll then it seems the pupil rules will apply (approved provider, time-limits) The consultation document says“where a local authority is required to find suitable education for a child on a school admission register, for example children with medical needs, then local authorities can use time-limited placements in unregistered alternative provision or consider alternative provision provided by a school.” [ See page 23] It is hard to see how arbitrary time limits might work or how this could fit with the requirement for provision to be accessible to the child as explained here.
Meanwhile, the “otherwise” category of s19 does not appear to be addressed at all. As I explain here severe anxiety or mental health reasons or chronic fatigue may fall into the ‘otherwise’ category. The law does NOT support local authorities saying they only have to provide EOTAS or alternative provision if there is medical evidence eg from CAMHS.
To complicate matters further, a child may be off roll WITHOUT being permanently excluded. 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 were never home educating in the first place and that the child was offrolled)
In this scenario, I would question whether it is really expected that provision could be restricted to schools, accredited online providers, or 14-16 college provision – for both primary and secondary – and again how this would fit with existing statutory requirements for provision to be accessible to the particular child. Would the child have to be placed on roll somewhere they were never expected to attend in order to access alternative provision?
EOTAS With EHCP – Child On Roll
Where a child with an EHCP is on roll at a school, alternative provision may be used EITHER as an intervention (typically for “behaviour”) OR as part-time EOTAS under section 61 where it has been deemed inappropriate for that part of the special educational provision to be made in a school.
Under the new AP rules the provider in BOTH scenarios (behaviour intervention or EOTAS) would have to be from the approved local authority provider list for schools but the consultation document appears to suggest that time-limited behaviour intervention may differ from “EOTAS provision (which is not so time-limited)“. [See page 28]
EOTAS With EHCP – No School Involved
Where a child has an EHCP, the local authority has a statutory duty under section 42 to secure the provision set out in the EHCP, no matter where a child is educated (unless parents have made suitable alternative arrangements)
Chapter 3 of the consultation document deals with proposed arrangements for “a small cohort of compulsory school-aged children with special educational needs for whom ongoing placements in non-school settings may be appropriate.” These also fall under section 61 as above.
Under current law, a provider has to register as a school if they offer full time education for children of compulsory school age to 5 or more pupils or 1 or more with an EHCP.
This means that children with an EHCP cannot receive full-time EOTAS delivered by a single alternative non-school provider because as soon as the education for a child with an EHCP is full-time, the provider must register as a school.
The government received feedback in the call for evidence that this was not always in the child’s interests and therefore proposes “that any children who have EHC plans and who are receiving all of their EOTAS special educational provision in a single setting would not be considered for registration purposes in the numbers of children attending these settings.” [See page 33]
Chapter 4 of the consultation document proposes that unregistered alternative providers delivering special educational provision under EOTAS arrangements for children not on a school admission register would a) be required to register with the Department for Education; b) would need to comply with new national standards and; c) would be subject to periodic national inspections by an independent body appointed by the Department.
It seems this would apply to providers delivering all or part of the EOTAS to a child with an EHCP not on a school roll. It is not clear how it would apply to provision funded by the local authority as part of a personal budget and arranged by parents through direct payments.