Browne Jacobson broadly supports the direction of reform but raises significant concerns about several proposals as currently framed, particularly around funding, commissioning responsibility, and the removal of Tribunal rights.

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.

Q1: How can we best support the needs of children and young people who are not eligible for a Specialist Provision Package but are unable to continue their education in a formal setting?

The consultation proposes that children who are not eligible for a Specialist Provision Package (SPP) but cannot continue in a formal setting should receive a time-limited package of alternative provision, with provision set out in an Individual Support Plan (ISP), with arrangements regularly reviewed. We do not support the characterisation of a 'time-limited' package. An arbitrary time constraint risks provision being withdrawn before a child is able to return. We do, however, support the requirement for an ISP detailing the provision, with a clear reintegration or transition plan, subject to regular review.

The interaction between local authorities’ duties under section 19 duty Education Act 1996 and the proposed ISP framework is not clearly addressed. The current duty is, in our view, already too vague and, without greater clarity on both, these children and young people would be likely to fall through the gap.  

The DfE's own guidance on health needs provides a useful anchor: where it is clear a child will be absent for 15 days or more, the local authority should arrange suitable alternative education. This concrete expectation should be reflected in the new framework. Guidance should be provided to make clear what education must be provided, the minimum number of hours, safeguarding oversight, review frequency and a clear delineation of responsibility between the school and the local authority.

We ask the DfE to ensure that the legislation explicitly addresses who holds the commissioning duty and that schools are not left bearing de facto responsibility without a corresponding legal and financial framework.

Q2: Which approach to commissioning and overseeing EOTAS arrangements do you think would work best?

We do not support either model as currently proposed. If required to choose, we would prefer the first (the shared model).

The most significant omission from this consultation is any account of how EOTAS packages would be funded. Both models contemplate transferring substantial commissioning responsibilities to named schools or further education settings but neither explains where the funding comes from or what happens when a setting cannot deliver the package within available resources.

In our experience, the cost of appropriate provision regularly exceeds what local authorities are willing or able to fund. Transferring legal responsibility without meaningful financial control will replicate existing failures, but with liability now sitting with schools. We urge the DfE to consult specifically on the funding model before any transfer of commissioning responsibility is legislated for.

The consultation acknowledges that additional support, capacity and safeguards may be needed, but it understates the challenge. Commissioning an EOTAS package requires significant resource and capacity which most schools (including special schools) will not have. A dedicated local authority ‘EOTAS commissioning’ role would be significantly more practical and cost effective than expecting each school to commission and quality assure complex packages individually.

We support a model in which the local authority retains a meaningful, enforceable role in determining whether EOTAS arrangements are appropriate, including a formal approval function at the point of the initial EOTAS decision. We would like the DfE to consider whether dedicated local authority AP coordination teams could be funded as part of the reform package.

Q3: Under your preferred approach, what support, capacity or safeguards would be needed to enable the named school or further education setting and/or local authority to undertake their roles effectively?

If any form of commissioning responsibility is to transfer to settings, the following are essential:

• Clear statutory guidance setting out minimum expectations for provider due diligence, safeguarding oversight, attendance monitoring, review frequency, family engagement and quality assurance against national standards. 
• If settings are to be required to arrange provision, they must receive adequate resource and support. This should include access to approved provider lists, procurement support and a named local authority officer for complex cases. 
• The legislation must be explicit about 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.
• Named settings should have a statutory entitlement to funded training in commissioning, contract management, safeguarding in off-site provision and quality assurance of non-school providers. 

Q4: What safeguards should be in place to support consistent, needs-led decisions about when EOTAS is the most appropriate way to meet a child or young person's needs, including where suitable school or further education provision may be limited or unavailable?

We recommend:

• An independent element in the decision-making process, so that where a decision is made that EOTAS is the most appropriate form of provision, it should be approved by someone independent of the initial decision maker, such as a named professional, a multi-agency panel, or the local authority.
• Every EOTAS decision must be formally documented with written reasons, recording what alternatives were considered and why they were rejected. This creates an audit trail that protects both children and commissioning bodies.
• Where a child is unable to attend school because of health needs, an evidential requirement should apply: confirmation from a qualified health professional that the child cannot attend, with a requirement that the professional consult the school. This would create significantly greater certainty for local authorities, schools and families as to when the duty to arrange alternative provision is engaged.
• EOTAS provision should be subject to frequent, regular review to ensure that it continues to meet the child's needs and that reintegration or transition planning remains appropriate and up to date.
• A clear prohibition on using EOTAS to fill gaps in specialist provision. EOTAS should not be used simply because a local authority cannot find a place for a child. The DfE's own statutory guidance on alternative provision (February 2025) is clear that AP should not be used as a substitute for specialist school provision simply because capacity is not available locally. The same principle must apply explicitly to EOTAS under the new framework.

Q7: What arrangements are needed to provide parents with a clear route to resolve disputes if decisions are made: about whether new EOTAS provision should be put in place; or to change or cease EOTAS provision that has already been put in place?

The current proposals for resolving disputes are inadequate.

Regular multi-disciplinary team reviews should be a key part of the EOTAS process. An early review of an EHCP should continue to be one step in the process, however, this is not an independent review. Where the dispute is about whether the authority or a named setting has made the right decision, asking the same authority to review that decision does not provide meaningful redress. We strongly disagree with the proposal to remove the right to appeal EOTAS decisions to the Tribunal. 

As Philip Wood, Partner at Browne Jacobson, has noted in the context of the wider SEND reform proposals, the proposed changes to the Tribunal appeal process represent a fundamental shift. It remains unclear what recourse parents will have if disagreement persists following reconsideration; in practice, they may be left with no option other than judicial review in the High Court.

If the DfE is concerned about Tribunal volume, the answer is investment in the Tribunal service, robust Tribunal case management and early, accessible mediation.

Q8: Do you agree or disagree that non school alternative provision delivering EOTAS special educational provision to children of compulsory school age should be required to comply with new national regulatory standards? 

Q9: Do you agree or disagree that local authorities should be responsible for quality assuring non school alternative provision delivering special educational provision EOTAS for children of compulsory school age?

We support the extension of national regulatory standards to non-school alternative provision delivering EOTAS special educational provision. The voluntary national standards published in August 2025 provide a sound framework, but voluntary compliance is not sufficient for provision serving the most vulnerable children in the country. In our experience, many smaller or specialist unregistered providers of AP would willingly follow such standards but, at present, can find themselves disadvantaged by the absence of a recognised regulatory framework; the lack of formal accountability can create a climate of suspicion across the AP sector which is not always well founded. A clear set of national standards would enable high-quality providers to demonstrate compliance and distinguish themselves from providers whose practice falls below acceptable thresholds.

The consultation document acknowledges evidence from Ofsted and the Care Quality Commission of ineffective quality assurance arrangements in some local areas, leaving children and young people's education, wellbeing and safety at risk. Mandatory standards, enforced through a clear quality assurance regime with meaningful consequences for non-compliance, would materially improve outcomes.

We agree that local authorities should have a quality assurance role, but that role must be clearly defined, funded and enforceable. We also recommend that mandatory standards be subject to statutory Ofsted inspection as well as local authority quality assurance, given that local authority quality assurance is itself variable and can be subject to the same resource constraints and conflicts of interest that affect commissioning decisions.