Summary
At the time of writing in March 2026 it is important to be clear that there is no new law for alternative provision.
In August 2025 the government said that only SOME of the AP proposals would be taken forward and these ONLY WHEN PARLIAMENTARY TIME ALLOWS.
“In its response to its consultation on unregistered alternative provision the government has announced that intends to legislate to introduce mandatory national standards for non-school alternative provision when parliamentary time allows. The standards are intended to inform the local oversight and commissioning of non-school alternative
provision; and to set clear and consistent requirements for providers. Until the standards become mandatory, the government and DfE encourages local authorities to adopt them voluntarily to support and improve current practice.” https://www.gov.uk/government/publications/non-school-alternative-provision-voluntary-national-standards
Recap
In 2024 shortly before the general election was announced by the then Conservative Prime Minister, the Department for Education launched a consultation on the use of alternative provision and EOTAS. The new Labour government updated the consultation page on September 1st 2025. (The government had already published revised AP guidance in January 2025)
2025 Consultation Outcome Voluntary Standards
The 2025 government consultation response says it wants to make new standards compulsory but recognises that this will take time as it requires a change to the law. Meanwhile it is recommending new voluntary standards, see consultation response page 67
2025 EOTAS Section 61 EHCP Further Work
THE GOVERNMENT HAS PRESSED PAUSE ON THE PROPOSED EOTAS WITH EHCP CHANGES
See consultation response page 42; the government has decided that DfE should undertake further work on EOTAS before deciding on the best way forward.
“DfE is undertaking further work on EOTAS special educational provision before deciding on how any non-school settings delivering this type of provision should be used and regulated. When this work is complete, we will further consider the regulation of the diverse range of settings that deliver this type of education and support. We will not therefore take forward any of the consultation’s proposals on EOTAS at this stage. We do not currently consider any EOTAS special educational provision to be within scope of the new voluntary national standards.”
2024 Consultation Background
In 2024 under the last government the Department for Education proposed introducing new national standards for alternative provision at compulsory school age and with time limits for how long pupils could remain in alternative provision without allowing them to return at least part-time to their home school. There were also to be new rules for children unable to attend school and for those receiving EOTAS (part-time or full-time) via an EHCP.
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.
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 VOLUNTARY
THESE CHANGES WOULD ONLY BECOME MANDATORY IF AND WHEN THE LAW IS CHANGED, TILL THEN THEY ARE VOLUNTARY
The proposed new national standards for alternative provision 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
At present these standards are voluntary. As stated above, new standards require new laws and no timescale has been given for this. “Until the standards become mandatory, the government and DfE encourages local authorities to adopt them voluntarily.” https://www.gov.uk/government/publications/non-school-alternative-provision-voluntary-national-standards
Time Limited Alternative Provision
THESE CHANGES WOULD ONLY APPLY IF AND WHEN THE LAW IS CHANGED.
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
THESE CHANGES WOULD ONLY APPLY IF AND WHEN THE LAW IS CHANGED.
The new proposed 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 proposed that if a child were permanently excluded, the local authority would NOT be able to send a child directly to an unregistered provider even from the approved list and instead would 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]
Section 19 Illness or Otherwise
THESE CHANGES WOULD ONLY APPLY IF AND WHEN THE LAW IS CHANGED.
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.” There has been little thought given to the illness category of s19 and the “otherwise” category of s19 does not appear to be addressed at all.
Osted Inspection Alternative Provision
At present there is no legal definition of “full-time education” as hours per week for children of compulsory school age.
Non-statutory government guidance for independent schools suggests 18 hour threshold [LINK] but Ofsted may interpret full-time in alternative provision differently.
For example if the child at one alternative provision is not able to attend an additional setting during school hours Ofsted may deem the provision to be “full time” as it is delivering all or substantially all of a child’s education.