Education Otherwise Than In School (EOTIS): A Necessary Consultation at the Wrong Time

The Department for Education seems to have been so occupied with recruiting “famous” faces to try to rally support that it only just remembered about the consultation for Education Otherwise Than In School.

Last week, the Department for Education published its consultation on Education Otherwise Than In School. In many respects, this is a consultation that has been needed for years. Education Otherwise Than In School raises issues across many areas of education including SEND, safeguarding, commissioning, and public finance. The legal duties are well established, but their practical application varies significantly from one local authority to another, leaving families with vastly different experiences depending on where they live. A dedicated review of that framework is both sensible and overdue.

The timing is hard to understand

Weeks ago, the Department closed its much broader consultation on SEND reform. That consultation set out proposals for ‘some of the most significant changes to the SEND system in a generation’ (again). It sought views on new Local Inclusion Plans, changes to Education, Health and Care Plans, reforms to accountability, strengthened expectations of mainstream schools, revised approaches to inclusion and a system intended to deliver greater consistency across England. Collectively, those proposals are designed to reshape how children with SEND are identified, supported and educated.

Against that backdrop, it is striking that one of the most specialist and legally complex aspects of the system has been left until afterwards.

There is, of course, a perfectly legitimate argument for treating Education Otherwise Than In School separately. In fact, I suspect that was the right decision. It concerns children whose education cannot appropriately be delivered within a school, in whole or in part, because of the nature or severity of their needs. Their circumstances are often highly individual, requiring bespoke combinations of education, therapeutic input and specialist support that do not fit comfortably within structures designed for mainstream or specialist schools. Trying to address those issues through a handful of consultation questions hidden within a much larger SEND document would almost certainly have done them a disservice.

That is precisely why the timing feels so difficult to understand. If Education Otherwise Than In School was sufficiently important to justify its own consultation, and I believe it was, it should have formed part of the wider conversation about SEND reform, not followed it. The risk is not simply one of perception. Consultation is at its most valuable when it helps shape policy. Publishing this exercise after the principal SEND consultation has already concluded inevitably raises questions about how much influence respondents can realistically have over reforms that may already be taking shape.

The tension with pre-set Support Packages

There is another reason why the timing of this consultation feels problematic. The wider SEND reforms increasingly point towards Education, Health and Care Plans being built around nationally defined Specialist Provision Packages for children with the most complex needs. The claimed intention is to create greater consistency, clearer expectations and a more standardised approach to specialist support, although I have written elsewhere about the issues that these Support Packages create in terms of making EHCPs far less bespoke, and more of a ‘wrapper’ for pre-set provision.

Education Otherwise Than In School sits uneasily alongside the idea of pre-set Support Packages. By its very nature, it is rarely capable of being reduced to a predefined package of support. It is often the statutory solution when no conventional package, however carefully designed, can appropriately meet a child’s needs. Provision may involve an entirely bespoke combination of tutors, therapists, clinical input, vocational opportunities, community-based learning and carefully managed reintegration, all tailored to the individual child rather than selected from a prescribed framework.

That creates an obvious tension which the consultation does not appear to address. If future EHCPs are expected to be framed around nationally developed Specialist Provision Packages, where does that leave the flexibility that has always been central to lawful Education Otherwise Than In School provision? Does it become another package within the framework, or does it remain an exception to it? If it is the latter, how will local authorities reconcile increasingly standardised commissioning models with a statutory duty that frequently requires something highly individualised? These are not peripheral questions. They go to the heart of whether the Government’s two reform programmes can operate coherently alongside one another, which is precisely why it would have been preferable for them to have been consulted upon together rather than sequentially.

What the consultation is asking

The consultation itself demonstrates why this work matters. It is not merely seeking views on whether current arrangements function adequately. It asks whether the statutory framework remains fit for purpose, whether local authorities’ legal duties are sufficiently clear, whether there should be greater consistency in commissioning decisions and whether accountability for provision should be strengthened. It explores how Education Otherwise Than In School should be reviewed, how outcomes should be measured and what mechanisms should exist to ensure that provision remains appropriate once it has been put in place.

Alongside this, the Department considers the growing role of accredited online education providers and alternative methods of delivery. It asks whether national standards should apply to providers delivering education outside school, how quality should be monitored, whether oversight arrangements are sufficiently robust and how responsibilities should be divided between providers and local authorities. Running throughout the consultation is a broader policy ambition: moving away from a system in which Education Otherwise Than In School is administered differently by every local authority towards one with clearer national expectations, more transparent accountability and greater consistency of practice.

Those are worthwhile objectives.

Why reform is needed

Few people working in this field would argue that reform is unnecessary. The current system places extraordinary pressure on everyone involved. Local authority budgets remain under sustained strain, creating an inevitable tension between statutory duties and financial reality. Families frequently describe informal cost ceilings being discussed before anyone has properly considered a child’s needs, while lengthy administrative delays often mean that provision begins months after it should. By the time support is eventually agreed, parents often find themselves acting as commissioners, recruiters, procurement specialists and contract managers, identifying tutors, sourcing therapists, negotiating costs and coordinating complex packages of provision because no one else has the practical capacity to do so.

At the same time, local authorities remain under a statutory duty to secure the special educational provision specified within an Education, Health and Care Plan, yet their practical oversight of bespoke Education Otherwise Than In School packages is often inconsistent. Questions about quality assurance, safeguarding, monitoring of outcomes and accountability receive very different answers across the country. Some authorities have developed robust systems of review and oversight. Others appear to rely heavily on families themselves to identify problems, monitor delivery and challenge shortcomings.

Pressure on families to move away from statutory provision

The consultation also arrives against the backdrop of another persistent concern raised by parents, practitioners and advisers alike: the pressure placed on families to move away from statutory provision altogether. Some report being encouraged to accept a premature return to school before appropriate support is in place. Others describe attempts to reframe circumstances as elective home education despite the child requiring Education Otherwise Than In School because suitable education cannot currently be delivered within a school environment. The distinction is legally significant, carrying very different duties and responsibilities, yet in practice it can become blurred.

These concerns are no longer confined to specialist SEND discussions. They are increasingly finding their way into mainstream reporting because they reflect the lived experience of many families navigating the system. I commented recently in The Times’ Agony Aunt column on precisely these issues, highlighting the pressures some parents face to move away from statutory Education Otherwise Than In School arrangements and the confusion that can arise when those arrangements become conflated with elective home education. It is exactly the kind of inconsistency that thoughtful reform should seek to eliminate.

EOTAS or EOTIS? Why the language matters

There is one aspect of the consultation that is difficult to overlook. Throughout the document, the Department repeatedly refers to EOTAS. The legislation does not. Section 61 of the Children and Families Act 2014 provides for Education Otherwise Than In School, and the Upper Tribunal has made very pointed comments that the language of “EOTAS” needs to stop being used. This is more than an argument about acronyms. Precision of language matters because statutory language defines statutory duties. When the Department responsible for reforming this area repeatedly uses terminology that does not appear in the legislation, it inevitably raises questions about the level of familiarity with the legal framework it is proposing to change.

A worthwhile exercise, poorly timed

None of this detracts from the importance of the exercise itself. Better accountability, clearer responsibilities, stronger oversight and more consistent commissioning would all represent genuine improvements if implemented thoughtfully. The present arrangements are too inconsistent, too administratively burdensome and too dependent upon the persistence and expertise of parents who should never have been expected to hold the system together. Reform is needed, and many of the questions posed by this consultation deserve careful consideration.

There is every reason to consult on Education Otherwise Than In School separately. Given the complexity of the statutory framework and the vulnerability of the children it serves, it would have been difficult to justify doing otherwise.

What is much harder to justify is leaving that conversation until after the wider SEND reform programme had already been consulted upon. These proposals do not sit at the margins of the system. They go to the heart of how some of the most complex children in education receive the support Parliament says they are entitled to.

This consultation may yet lead to meaningful reform. I hope it does. Better accountability, clearer responsibilities and stronger oversight would benefit children, families, schools and local authorities alike. But if the Department genuinely wanted these proposals to shape the future of SEND, this conversation should have started alongside the wider reforms, not once much of the wider debate had already passed.

How we can help

If your child requires Education Otherwise Than In School, or you are navigating an EHCP, a change to provision or pressure to move away from statutory arrangements, our specialist Education Law team can advise on your rights and the local authority’s duties. We regularly help families challenge decisions and secure the provision their children are entitled to.

Tel: 0333 202 7175

Email: education@hcbgroup.com