Education otherwise than at school: our response to the consultation

EOTAS arrangements typically arise where a child cannot be educated within a school or college setting because of the nature of their needs. The consultation considers a wide range of issues, including when EOTAS should be used, who should oversee it, how reintegration should be managed and what rights parents should have to challenge decisions. 

Our specialist education law team responded directly to the consultation. Here are some of the points they raised about the proposed reforms. 

EOTAS should remain an exceptional provision

Where a child requires EOTAS because they cannot access education in a formal setting, it is because they have highly complex needs and have experienced significant difficulties during their educational journey. 

The existing legal test under section 61 of the Children and Families Act 2014 sets a deliberately high threshold. A local authority must be satisfied that it would be inappropriate for a child’s special educational provision to be delivered in any school or further education setting before EOTAS can be considered. 

We consider that this remains the appropriate safeguard. EOTAS should continue to be reserved for children whose needs genuinely cannot be met within a school or college environment. It should not be a substitute for shortages of suitable placements or deficiencies within the wider SEND system. 

Who should oversee EOTAS?

One of the consultation’s key proposals concerns responsibility for commissioning and overseeing EOTAS provision. The government proposes this responsibility should move from Local Authorities to schools. 

Moving responsibility away from local authorities and placing this role primarily on schools could create practical difficulties. Mainstream schools are unlikely to have the resources, specialist expertise or capacity required to oversee complex EOTAS packages, particularly where they may have had little or no involvement with the child. 

Instead, dedicated specialist local authority EOTAS teams could offer the most effective model. A specialist team can provide consistency, oversight and expertise, while allowing good practice to be shared across local authorities. 

The importance of independent safeguards

The consultation sought views on the safeguards that should apply when deciding whether EOTAS is appropriate. 

Decisions about whether EOTAS is appropriate should be robust and based on clear evidence. This requires a multidisciplinary assessment, meaningful consultation with the family, consideration of all available provision and access to an independent challenge if there is disagreement.

Appeal rights must be preserved

One of the most significant concerns arising from the consultation is the proposal to limit parents’ ability to challenge EOTAS decisions by removing SEND Tribunal appeal rights. While some rights of appeal would remain, parents wouldn't be able to specifically challenge whether a child should receive EOTAS rather than a school place. 

Restricting appeal rights risks leaving children without an effective means of redress where the support they require is theoretically available but inaccessible in practice because it can only be delivered through a school setting. 

The current tribunal system provides a specialist forum for resolving disputes. Removing those rights may instead increase reliance on judicial review proceedings, potentially resulting in greater cost and delay for all parties involved. 

Addressing wider system issues

A recurring theme throughout the consultation is the pressure on the wider SEND system.

Delays in accessing specialist support, including mental health services, can leave schools struggling to support children whose health needs affect their ability to access education. Improving outcomes will require not only reform of EOTAS arrangements but also greater access to specialist professionals, clearer responsibilities between schools, local authorities and health services, and timely intervention. 

Next steps 

The consultation ran from 10 July 2026 to 18 September 2026. The government is now considering the feedback.

Support for schools and colleges

Our specialist education law team has considerable expertise acting for schools and colleges reviewing the lawfulness of their policies, supporting formal complaints processes, safeguarding issues, defending exclusion and suspensions, as well as disability and discrimination Equality Act 2010 appeals. 

Please contact Esther Salter for more information. 

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