As part of the broader special educational needs and disabilities (SEND) reforms set out in the 2026 schools white paper, 'Every child achieving and thriving’, the government has also consulted on how it can better support children and young people whose education, health and care (EHC) plan has set out that they should be educated outside a school or college setting. This is sometimes called education otherwise than at school, or EOTAS.

This response to the consultation, which closed on 18 September, has been prepared by Laura Murphy, Associate, and Laura Thompson, Principal Associate, in Browne Jacobson's education team, with expertise across alternative provision, exclusions, SEND, governance and school commissioning. It is submitted as a companion piece to our firm's response to the overarching SEND reform consultation, first prepared and submitted by Philip Wood, Partner, and Hayley O'Sullivan, Principal Associate, on 21 May 2026.

As the government’s consultation page confirms, families and professionals with direct experience of EOTAS told the Department for Education (DfE) throughout the overarching SEND reform consultation that this area needed specific attention. This consultation seeks further views, ensuring an additional opportunity to directly shape how EOTAS works in the future, and all consultation responses will be considered together. This response should therefore be read alongside our earlier submission rather than as a replacement for it.

We have chosen to focus on the questions most closely aligned with our legal expertise and where we believe we can offer the most useful frontline insight. The views expressed are those of the firm and not of any specific client. We respond in a constructive spirit, but with clear concerns about certain proposals as currently framed, which we set out below.

What is the data saying?

Our spring 2026 School Leaders Survey captured priorities from leaders representing more than 1,000 schools and over half a million pupils. SEND and inclusion was the single most commonly cited pressure point going into the 2026/27 academic year. The concerns at the heart of this consultation are ones our clients face every day.

The DfE's own data is striking. Around 16,000 children and young people are currently receiving education through EOTAS arrangements this is a 90% increase over the last four years. Of those, 39.7% have a primary SEN need of social, emotional and mental health, and 35.4% have autism as their primary need. These are children with complex, long-standing needs who have frequently experienced placement breakdown and prolonged periods of disrupted education. Any proposals that alter their arrangements must be approached with corresponding care and structural rigour.

We also note that in 2025, nearly 30,000 children were in unregistered alternative provision; approximately double the number in 2019. We welcome the government's intention to strengthen the regulatory framework, but the mechanism by which that is achieved matters enormously.

Our experience in this area

Browne Jacobson is a Top 50 UK and Ireland law firm whose education practice is one of the largest specialist education legal teams in the UK, supporting schools and academies, multi-academy trusts, local authorities, charities, executive agencies, education businesses, higher education institutions and the DfE. 

We are ranked Band 1 in education law in every region in the Legal 500 and nationally in Chambers and Partners, with The Times placing us among its top three firms for education. 

We advise schools, academy trusts and local authorities across England on the commissioning and oversight of alternative provision. This includes the interaction between AP commissioning and SEND obligations, the legal requirements for EOTAS, what happens when EOTAS arrangements break down or are contested, and what schools are asked to take on when they lack the resource or expertise to do so safely. We also advise on safeguarding compliance in off-site provision, exclusion and suspension decisions, Education Health and Care Plan (EHCP) reviews, and the growing regulatory challenge around unregistered providers.

How this response is structured

This consultation covers four distinct areas: 

1. Education otherwise than at school (EOTAS). 
2. Children on existing EOTAS arrangements.
3. Support for children who cannot attend school because of health needs.
4. How schools and local authorities use accredited online education providers for alternative provision. 

Our response addresses each in turn, following the structure of the consultation document.