Some of you may be asking, what is EOTAS? If so, this isn’t the article for you (yet). We have published previous information about EOTAS, including this article EOTAS: Education Otherwise Than At School. What is it, and can I get it? - Special Needs Jungle with our friends at Special Needs Jungle, and this webinar Professional's Annual SEN Conference 2020 - Nicole Lee, Specialist Solicitor at SEN Legal available completely free of charge on our YouTube channel.
For those of you who know what EOTAS is, you may understandably have questions about what the reality of delivering an EOTAS package is, once it is written into a child’s EHC Plan.
EOTAS provision in Section F of an EHC Plan is legally treated exactly the same as provision which is delivered within a school setting. Section 42 of the Children and Families Act 2014 places the local authority under a duty to make sure that all of the provision in an EHC Plan is in place. The fact that EOTAS provision is delivered outside of a school setting, often in the home environment, does not change this duty. It is still the local authority’s overarching responsibility to make sure that all of the EOTAS provision is in place.
However, the sad reality is that local authorities struggle to comply with Section 42 of the Children and Families Act 2014, even when a child is in a school and the school SENCo or wider SEND Team is taking care of the organisational side of things. When it comes to EOTAS packages, which often require the organisation of lots of individual professionals to make sure provision is delivered in the right way, at the right place, and at the right time, the situation is even more dire. This appears to have been recognised by the SEND Tribunal, with panels frequently directly asking the local authority what provision will be in place for the management of an EOTAS package, if this isn’t already in the evidence or Working Document.
In our experience, many local authorities will offer parents of children with EOTAS packages a direct payment as a default. I have even seen one local authority tell a parent “this is how we do all our EOTAS packages, so you have to have a personal budget”. This is not correct. A local authority cannot force you to have a personal budget in order to arrange provision, whether it is EOTAS provision or otherwise. Personal budgets are optional, and require the agreement of both parents, and the local authority.
However, a personal budget is one way in which an EOTAS package can be arranged and funded, giving parents greater autonomy and flexibility about what professionals are used, and how the provision in the EHC Plan is delivered (as long as the specifics of the EHC Plan itself are being followed).
When it comes to the delivery of EOTAS packages therefore, there are 2 options:
1) The local authority is responsible for the delivery of the EOTAS provision under Section 42 Children and Families Act 2014; or
The default position is that the local authority is responsible, and that from the date that the EHC Plan is finalised, the local authority should have arranged for all the provision set out in Section F to be in place. You do not have to do anything for this to happen. The local authority cannot fail to deliver provision and then say, “we didn’t deliver the provision, because you didn’t ask us to.” That being said, parents are well advised to push the local authority for progress updates on arrangements for delivery of provision, to make sure that they are complying with their obligations.
2) Parents request to manage the EOTAS package themselves through a Personal Budget.
If parents would prefer to have greater control over the delivery of the EOTAS package, then they can make a request for a personal budget. If agreed, the local authority would comply with the Section 42 obligations by making payments of pre-agreed sums of money, in order for parents to arrange the provision themselves. This would mean that parents are responsible for sourcing all professionals to the provision in the EHC Plan.
This gives greater option of choosing exactly who works with your child. If you already have tutors or therapists who have been working with your child, a personal budget may enable you to keep these people working with your child.
Whilst both of these options have their benefits, they also have their downsides. It must be remembered that an EOTAS package is similar to an iceberg, in that the provision in the EHC Plan is a very small part of what is required for the child to receive an effective education. For example, the EHC Plan may specify teaching in English, but in order for the child to have a qualification at the end of the tuition, a test centre must be found. The child must be entered as a candidate. An invigilator may be needed to be found for coursework. Dates for coursework deadlines and exams will need to be confirmed, and special arrangements applied for. As you can appreciate, in this scenario 3 hours of teaching per week requires a lot of organisation, in order to result in a qualification.
If the Local Authority remain responsible for organising the EHC Plan, you shouldn’t have to do anything other than encourage your child to learn. However, note above that even where an LA is responsible for organising EOTAS provision, parents often have to continuously check that the local authority is doing what it should be. In many cases, the scenario we have outlined above about finding test centres is completely overlooked.
If the local authority is responsible for arranging the provision, it has free rein to decide what professionals it uses, as long as they meet any specification in the EHC Plan. Whilst we would hope that the local authority would work with parents collaboratively, this can’t be guaranteed. From a logistical perspective, the local authority is unlikely to hand resources to spend time finding multiple options for parents to choose from. Finding any options at all can be very slow.
Additionally, in our experience local authorities are not very innovative when it comes to implementing provision, and even if they are responsible for EOTAS programmes, rely on parents to come up with ways to implement the provision.
You can make suggestions to the Local Authority if you have a tutor/therapist in mind, but they are not obligated to instruct this person and tend to go for the most budget efficient option. Further, even if they are willing to use a parental preferred tutor/therapist, it can take time for them to get payments for these tutors in place if they are not a pre-approved professional on the LA’s system.
Managing your child’s EHC Plan via a Personal Budget can therefore seem like a no brainer. However, there are drawbacks that you need to be aware of before considering making a request.
Firstly, a personal budget is not guaranteed. Whilst you can request a personal budget, the local authority is able to refuse, if they do refuse, they must provide reasons, and you can ask for reconsideration. However, your ability to challenge a refusal is limited.
If a personal budget is agreed, is not as simple as the Local Authority giving you a sum of money and leaving you to get on with things. A Personal Budget have to be corrected set up and managed.
The budget has to be sufficient to arrange the specified provision. Often, what an LA will say provision costs, and what parents can commission to for, is very different. If the LA can show that it can deliver the provision for the amount they are putting forwards, they can refuse the budget, and decide to deliver the provision themselves. Note that some LA’s will agree to provide the amount they would pay and allow parents to “top up”. However, this is not legally correct, as the personal budget must be sufficient to deliver the provision. Education is free at the point of receipt in England, and parents and there is no legal entitlement to “top up”. The local authority can refuse a personal budget if it decides it is not an “efficient use of local authority resources”.
Before agreeing a personal budget, local authorities will generally require parents to submit estimates and quotes to evidence the amounts being requested, which can take a significant period of time.
If a budget is agreed, a separate bank account must be created to manage the funds as it has to be clear what funding has been received and what has been spent. Only approved people are allowed to access that account.
Clear records of payments have to be kept, setting out who the payments have been made to, when, what for and for how much. You must also show how the provision in the EHC Plan has been delivered using the personal budget. You must be able to provide records upon request, or at specified intervals, as the local authority sees fit.
If a professional you are working with no longer is able to provide provision, it is up to you to find a replacement.
If you change professional, and this requires a change in funding, the Local Authority have to be updated and any change in budget confirmed.
If your child requires social opportunities as part of their provision, you are required to source and arrange these.
If your child needs to sit exams as part of their education, you will likely need to find an exam centre that is able to accept external applicants and make the arrangements for this. Note that you can try to require the LA to assist with this, but if they are not actively managing the package, getting support or even a reply can be very difficult.
The local authority is supposed to provide a written agreement which sets out exactly what you will receive, when you will receive it, and what it is for. This rarely happens.
Even where there are written agreements, local authorities are often late in making personal budget payments, which can lead to delays in provision, or parents even paying out of pocket to keep providers.
It can be very challenging to secure an EOTAS package in your child’s EHC Plan. Unfortunately, once the EOTAS package is written into the EHC Plan, implementation can present a further challenge.
The legislation ultimately acts to protect the child, and demands that however it is arranged, the provision in the EHC Plan must be in place. In our experience, making sure that the local authority does this can require lots of chasing, and even the threat of Judicial Review proceedings. Whilst the legislative framework which provides for EOTAS is very welcome, local authority ability to implement EOTAS provision is extremely lacking.
Whether the local authority remains directly responsible for the provision, or a personal budget is agreed, parents can unfortunately expect to spend a lot of time coordinating their child’s education package.