Case overview

This case concerned an autistic 13-year-old described as having a profile suggestive of Pathological Demand Avoidance. He had never attended school and until recently learning to ride a bike, found it difficult to leave home or be in the company of others.

The local authority (LA) issued an EHC plan containing an individualised programme of education, initially at home but with the intention of progressing to receiving some provision on a special school site but not in a classroom setting. The LA’s position was the school should be named in section I of the child’s EHC plan.

His parents said it would not be possible for him to access education in a setting in the foreseeable future. They asked for section I to be left blank and education otherwise than in a school (EOTIS)  to be provided at home (sometimes known as EOTAS). They appealed to the SEND Tribunal for this.

There was evidence in the SEND Tribunal appeal that:

• the child could choose to access school at any time
• the Ofsted rated outstanding school offered a varied curriculum outside a conventional classroom setting
• it’s social, emotional and mental health provision could not be made unless the child had access to the forest school, canoeing or rock climbing (which it was hoped he would be able to in five months’ time),
• and he would have to be registered at the school to be covered by its insurance, even if he would not be in the classroom environment. 

The SEND Tribunal decided the child needed the opportunity to access provision on the school site. Therefore, it could not find that it would be inappropriate for him to be educated in a school (which is required for the legal threshold for EOTIS to be met). It ordered the LA to state in section I:

“Specialist Provision: [the school], Bespoke provision”

The parents appealed to the Upper Tribunal (UT), they argued that:

1. The SEND Tribunal didn’t correctly apply earlier case law on EOTIS when deciding education in a school was appropriate.

The LA accepted this point. The SEND Tribunal had not considered the child’s views, which is one of the factors earlier case law said must be considered when deciding if it would be inappropriate for special educational provision to be made in a school.

2. The SEND Tribunal was wrong to order a school to be named when the child would not be attending it yet.

The UT said this was academic because it had already decided the SEND Tribunal had made the above error.

3. The SEND Tribunal was wrong to order the LA to include “bespoke provision” in section I of the EHC plan.

The UT agreed. Section I is for the name of the setting and its type (or type only if no school has been identified).

What does this mean?

The UT gave the following guidance on EOTIS and bespoke provision outside of a conventional classroom:

1. The SEND Tribunal (and LA) must consider section 61 of the Children and Families Act 2014 (which contains the test for EOTIS) and must separately ask whether it is satisfied that it would be inappropriate for (i) any special educational provision necessary for the child to be made in any school and (ii) any part of the provision to be made in any school.  

2. In considering this, it must ask itself if a school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case, which earlier case law says might include:
   1. the child’s background and medical history
   2. the particular educational needs of the child
   3. the facilities that can be provided by a school
   4. the facilities that could be provided other than in a school
   5. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere
   6. the parents’ wishes, and
   7. any other particular circumstances that apply to a particular child. 

3. If it would be inappropriate for any such provision to be made in any school, then section I must be left blank. 

4. If not,  a particular school or type of school would be appropriate for the child in relation to at least part of the provision, which leads to consideration of what should be specified in section I under regulation 12(1)(i) The SEND Regulations 2014. 

5. If a particular educational institution is proposed and it’s disputed whether it is a school, the definition of a school in section 4 of the Education Act 1996 must be applied, in light to of all the evidence and, where relevant, matters such as its regulation governance, financing and administration must be considered. 

6. If it is disputed whether the school or type of school will be ‘attended by’ the child this must be considered.  If the child will be present at the school or type of school for at least part of the time, they will be attending it and so the school or type of school must be specified in section I.  Attending provision provided by the school as part of a bespoke package outside a conventional classroom setting will nonetheless mean that the school is to be attended by the child.   

7. What is specified in section I is strictly limited to the name and/or type of school to be attended by the child.  

8. Education in a child’s home cannot be named in section I.   

9. Any special educational provision which will be made otherwise than in a school or type of school will be set out in section F.   

The full report for NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) is available online.

 

For more information see our page on home education and education otherwise.