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17 Apr 2025

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24 Apr 2025

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[test] Yes | Complex

“This is a draft answer for you to amend, copy and paste and then publish on the Support SEND Kids website in your own name, and at your discretion. This draft is based on content already on the Support SEND Kids website including the No-nonsense guides and the relevant statutes, regulations and case law. I will provide you with a fairly lengthy draft as it is easier to delete than add!
It will start with simple summaries at the beginning (the first is designed for children (age 6) and the second for adults who need easier reading) which may be helpful for you to include when you publish as it improves access to the law and makes the Support SEND Kids website content more accessible.
I will then produce a more detailed answer typically aimed at a legal practitioner for you to amend and publish. I will also try to highlight references in the website content and identify similar existing answers for you to review in your drafting process. Lastly I will try to provide practical hints and tips drawn from the contributors in the Support Send Kids Community. I will also give you a steer as to whether I think the answer should be YES / NO /UNCLEAR and if it is COMPLEX / SIMPLE or UNCLEAR”

Categorisation

Category: UNCLEAR (the answer requires explanation and context as there are several legal steps and variables in play)

Complexity: COMPLEX (this involves EOTAS, personal budgets, school roll status, and the local authority’s duties, all of which require references to law, regulations, and case law)

Super Simple summary to help a parent explain the law to a child

Sometimes, if your school can’t give you the help you need, your family can ask for learning to happen in a different way, like at home or online. The council has to think about your request and make sure you still get an education, but they have to check with your old school and other places before they make a big change. You should always have somewhere to learn before your name is taken off your school list.

Summary in simple English

If a child needs education that is not provided in a normal school (EOTAS: Education Otherwise Than At School), the Local Authority (LA) is responsible for considering this and arranging it if it is agreed to be needed in the child’s Education, Health and Care Plan (EHCP).
Before the LA agrees to EOTAS, they will often check if the current school or another school could meet the child’s needs, which is why they are contacting the school and consulting others.
A child should not be removed from a school roll unless other suitable education is provided.
Requesting EOTAS before being removed from roll is the correct step.

Draft technical answer

1. Legal duties regarding EOTAS and LA funding

The Local Authority (LA) has the legal responsibility to arrange the special educational provision specified in Section F of an EHCP, whether that is at a school, at home, or through online provision, if this is specified as EOTAS (Education Otherwise Than At School) under Section 61 of the Children and Families Act 2014.

EOTAS is not decided by the school but by the LA, based on the child’s needs and evidence that education in a school is not suitable.

Funding for EOTAS provision, including online schools, must come from the LA if it is agreed in the EHCP. The current school does not have the responsibility to fund EOTAS, but the LA may wish to consult with the school to explore any possibility that the school can deliver or fund the provision, or as part of their decision-making process.

2. Why is the LA consulting the school and others?

The LA is legally required to consider whether mainstream or another school can meet the child’s needs before naming EOTAS in the EHCP. This is why they are contacting the school and consulting other independent settings: to ensure that all options have been considered and to evidence their decision.

Section 39 of the Children and Families Act 2014, and SEND Code of Practice (paragraph 9.91-9.97), set out that the LA must consult schools before finalising the EHCP. This is also reinforced by caselaw.

3. Who pays for EOTAS and the personal budget?

If EOTAS is agreed and specified in Section F of the EHCP, the LA is responsible for paying for the provision, which may include online schooling. The personal budget can be used to arrange some or all of this provision, if agreed by the LA and specified in the EHCP.

The school does not pay for EOTAS, unless some kind of joint funding or arrangement is agreed, but the legal duty sits with the LA.

4. Was it correct to insist your child remains on roll until alternative provision is in place?

Yes. The law and statutory guidance require that a child should not be removed from a school roll until suitable alternative education is in place (Education (Pupil Registration) (England) Regulations 2006, Regulation 8(1)(h), and guidance from the DfE).

If a child is removed from roll before appropriate provision is arranged, this could constitute an unlawful exclusion or a breach of the LA’s duty under Section 19 of the Education Act 1996.

5. Practical process and next steps

The LA must gather all relevant evidence and consult with settings before making a final decision on EOTAS. This is to ensure that EOTAS is only named where education in school is not suitable and EOTAS is necessary.

You were not wrong to request EOTAS and to insist that your child remains on roll until suitable provision is in place.

Answers from the No-nonsense Guides

No-nonsense Guide to Disability Law in Education
Question 3.1.3

Q: When does a local authority have to agree to EOTAS (education otherwise than at school)?
A: The LA must secure EOTAS under section 61 CFA 2014 if satisfied that it would be inappropriate for the provision to be made in a school. This requires clear evidence and is a high threshold. EOTAS should be considered only if it is absolutely necessary. The decision is for the LA, not the school, although advice from professionals and the school will be taken into account. The LA remains responsible for the funding and arrangements if EOTAS is named in the EHCP.

Noddy No-nonsense Guide to SEN law
Section 61

Q: What does section 61 CFA 2014 mean for EOTAS?
A: Section 61 says a LA may arrange special educational provision otherwise than in a school, if satisfied that it would be inappropriate for the provision to be made in a school. This must be specified in the EHCP. The LA is responsible for arranging and funding EOTAS, not the school. The LA should consult schools and other providers as part of the decision-making process.

Answers from the Support SEND Ask Experts

EOTAS and school roll – can my child be taken off roll before EOTAS is in place?

Q: Can the LA remove my child from the school roll before EOTAS is arranged?
A: No, a child should not be removed from roll until suitable alternative provision is in place. The LA must ensure continuous education provision. See Education (Pupil Registration) (England) Regulations 2006 and DfE guidance.