Education other than in a school (EOTIS) is governed by Section 61 of the Children and Families Act 2014. The increasing frequency of such arrangements poses a familiar challenge at the forefront of LA’s minds as they grapple with the rise in appeals and continuing limited resources. While we have previously looked at cases where EOTIS is contested, this appeal highlights a different scenario – where the LA have used the term inaccurately. As London Borough Council discovered in this appeal, such an error can be costly and difficult to reverse.
Background to London Borough of Camden v KT [2023]
On 21 September 2022, the First-tier Tribunal’s (FTT) ordered that EOTIS be arranged, leaving Section I blank of the EHC Plan for P, a child with autism, ADHD and dyslexia. This was in favour of parents’ request that Section I be left blank.
Upper Tribunal (UT) Decision
The LA’s had appealed on various grounds, arguing that it was inappropriate for special educational provision to be made at home. This article focuses on the first of the five grounds.
The first ground was that the FTT made an error by failing to consider the suitability of the placement put forward by the LA. The FTT did so because of its misunderstanding of the LA’s specialist solicitor’s use of the term “EOTAS”, which it itself a vague term. It was used in the context of the LA’s position that it disagreed with parent that there should be no involvement from a school. This was made clear in the LA’s written closing submission.
However, the UT did not find an error on this ground, based on the following:
The scope of the term is narrow, exclusively referring to Section 61 of the CFA 2014;
The final version of the working document, in Section F, also referred to EOTIS as agreed upon by both parties - the LA should not have agreed to the term, or at least it was unclear why it did so, if viewed as unclear;
Although there may have been a misunderstanding by the FTT regarding whether the matter was agreed upon by both parties, its conclusion that provision within a school would be inappropriate was independent of this and based on all the evidence.
The judge also queried the practice of using the acronym EOTAS, when the correct acronym is EOTIS.
Practical Implications
There is an important distinction to be made between EOTIS and EHE (elective home education). Care should be taken not to conflate the two in discussions and decisions. EOTIS is applicable where inappropriate for a child or young person to receive special educational provision at school. While EHE is a choice by parents to provide education for their children at home or in some other way, outside of full-time school. It is not the responsibility of the LA to arrange EHE, as is the case for EOTIS.
The case is also a reminder that LAs should be careful and thorough when engaging with the working document. The tribunal will be unlikely to be accepting or understanding of any errors made in agreeing text in the final version of the working document.