Case overview

This case involved the special educational provision for two sisters with significant special educational needs. The SEND Tribunal decided that the children should receive ‘education otherwise than in school’ (also known as EOTAS), delivered at home. The power for a local authority (LA), or the SEND Tribunal acting in its shoes, to do this is set out in section 61 of the Children and Families Act 2014.

Because the SEND Tribunal had decided that no school or other institution could be named in Section I of the children’s EHC plans, it left this section blank. The LA appealed, arguing the SEND Tribunal was not able to do this.

The Upper Tribunal (UT) heard the appeal and confirmed the decision in East Sussex County Council v TW [2016] UKUT 528, which was that a child’s home cannot be named in an EHC plan.

The UT also looked at whether Section I has to say something. It decided there is no absolute requirement that all EHC plans must specify a school or other setting (or type) in Section I. If the LA thinks that no school or other setting (or type) would be appropriate for the child, it does not have to name one in Section I of an EHC plan – it can be blank.

What does this mean?

If your child or young person will not be attending a setting at all, their EHC plan should clearly describe all of their special educational provision in Section F and Section I should be left blank.

This case makes clear that the law has always anticipated some children may not be able to attend a setting due to their needs, but that does not mean they cannot have an EHC plan and receive special educational provision. The law says if an EHC plan is necessary for your child or young person, then your LA must issue one.

The full case report for Derbyshire CC v EM and DM (SEN) [2019] UKUT 240 (AAC) is available online.

For more information about education otherwise than in a school (EOTAS) please see our education otherwise than in a school, asking for education otherwise than in a school, and what an EHC plan should contain pages.