Browne Jacobson supports assessment at key transition points for children on existing EOTAS arrangements, greater clarity on roles and responsibilities for children with health needs, and stronger oversight of accredited online providers — but raises consistent concerns about rigid legislative frameworks, untested assumptions about capacity, and inadequate safeguards for vulnerable children.

This response forms part of Browne Jacobson's series of submissions on the government's SEND reform programme. The EOTAS consultation sits alongside the firm's responses to the overarching SEND reform consultation.

Children on existing EOTAS arrangements

Q11: When should assessment take place, if at all, for children and young people on existing EOTAS arrangements?

We agree that assessment should take place at key transition points for children and young people on existing EOTAS arrangements. For this cohort, who have often experienced multiple placement breakdowns and prolonged periods of disrupted education, stability must remain the overriding priority. There must, however, be clarity as to who (schools or local authorities) will continue to have oversight of existing arrangements during and following any assessment.

The framework must also allow for flexibility in the timing of assessment. A rigid approach tied solely to the end of a key stage will not serve all children well. For example, if a Year 5 or 6 child has only recently begun to make progress through an EOTAS package, assessment at the end of the primary phase may be premature and counterproductive. Conversely, a Year 8 student who has been receiving EOTAS for some time may be ready to return to school to begin preparing for adulthood; in that case, earlier assessment would be appropriate. The legislation should therefore provide for assessment at key transition points as a default, with a discretion to assess at other points where there is evidence that it is in the child's interests to do so.

On the proposal that transition arrangements be overseen by an alternative provision school, we note two concerns. First, this assumes AP schools have the capacity to take on an oversight function for a potentially significant additional cohort; that assumption requires testing before legislation is introduced. Second, the legal framework governing an AP school's responsibilities in this role is not defined. We recommend the government pilot this model in a small number of local areas before legislating for it.

Children receiving alternative provision for health needs

Q16: How could roles and responsibilities between schools, local authorities and health services be clarified to support more timely and effective support for children who are unable to attend school due to health reasons and require alternative provision?

We welcome the focus on reducing delays in provision for children who cannot attend school because of health needs. In our experience, the period between a school identifying that a child cannot attend and the local authority putting provision in place is one of the most persistent and damaging gaps in the current system. Children can be out of education for weeks (sometimes months) while responsibility for resolving the situation is disputed.

In practice, there is significant local variation in how the duty under section 19 Education Act 1996 is applied, and schools frequently do not understand when their own obligations end and the local authority's begin. Clear, updated statutory guidance on the interaction between school and local authority duties would materially reduce the delays this consultation is rightly concerned about.

As the consultation document confirms, there is currently no absolute legal deadline by which a local authority must start to arrange education for children with health needs, but it should do so as soon as it is clear that a child will be away from school for 15 days or more. In our experience, this threshold is not widely understood by schools, and the absence of a hard legal deadline creates incentives for delay. We recommend the DfE consider implementing a statutory guideline or clear guidance.

Accredited online education providers

Q18: What approach, if any, should be taken to the duration of placements for children receiving alternative provision through Online Education Accredited Providers?

Q19: Should children receiving alternative provision through Online Education Accredited Providers remain on the admission register of a school?

We support the principle that children receiving alternative provision through accredited online providers should remain on the admission register of a school. A child who is not on any school's register is, in practice, invisible to the oversight systems designed to protect children's education and welfare.

We broadly support the proposal to time-limit placements, but we are concerned that rigid time limits could work against the interests or needs of some children for whom the consistency and predictability of online provision may be therapeutically important. The legislative framework should allow for extension beyond standard time limits where there is clear, documented evidence that continued online provision is in the child's best interests, with that decision subject to independent review rather than left solely with the commissioning school or local authority.

We also note that the Online Education Accreditation Scheme does not currently provide ongoing monitoring of providers after accreditation. This is an insufficient safeguard for provision that may be the primary educational setting for some of the country's most vulnerable children. Any new regulatory framework for online provision should include periodic re-accreditation requirements and regular Ofsted monitoring, not a one-time quality check.

Our overall assessment: Issues to address before the legislation is introduced

We welcome the government's determination to improve the consistency and quality of education for children and young people on EOTAS arrangements. The GOV.UK consultation page is clear that no decisions have been made and that the government wants to hear the views of parents, carers, schools and local authorities before deciding whether to take these proposals forward. We take that commitment at face value and respond in that spirit.

The five issues we most urgently ask the DfE to address before any legislation is introduced are:

• Capacity: The capacity and resource needs of any provider asked to discharge EOTAS commissioning functions requires a realistic, funded and statutory plan, not an expectation that settings will manage with existing resource.
• Funding: The funding model must be resolved and consulted on specifically before any transfer of commissioning responsibility is legislated for. Without this, the risk is that legal liability transfers to schools while financial control remains elsewhere.
• Liability: The legislation must define what legal liability rests with the named setting and what remains with the local authority. The absence of clear liability boundaries is one of the most consistent sources of dysfunction in the current system and must not be carried forward into the new framework.
• Quality assurance: Non-school alternative provision delivering EOTAS special educational provision must be subject to mandatory national regulatory standards, enforced through both statutory Ofsted inspection and local authority quality assurance. 
• Tribunal rights: We do not support the removal of SEND Tribunal appeal rights in relation to EOTAS decisions. This raises serious concerns about access to justice and removes the only truly independent mechanism available to families.

We are grateful for the opportunity to contribute to this consultation and would welcome the opportunity to engage further with the DfE on any of the points raised, drawing on our direct experience of advising schools, trusts and local authorities in this area.