When your child cannot attend school: EOTAS and section 19

Two legal routes when your child cannot attend school

If your child is at home right now and school feels impossible, start with this: the law does not leave you to cope alone, and your child does not lose the right to an education because they cannot walk through the school gates. This is more common than it feels from inside it, and there is a clear next step. Two distinct legal routes exist, and they are often confused with each other.

The first is the section 19 duty in the Education Act 1996. It is an interim safety net. When a child of compulsory school age is not receiving suitable education, because of illness, exclusion or anything else, the council must step in and arrange it. It does not depend on an EHC plan and it exists to stop education simply lapsing while a longer term answer is worked out.

The second is EOTAS, education otherwise than at school, under section 61 of the Children and Families Act 2014. This is not an interim measure. It is a deliberate decision, recorded in the EHC plan, that your child's special educational provision will be delivered outside any school because a school would be inappropriate for them. The package goes into Section F of the plan, no school is named in Section I, and the council must deliver every part of it (s.42(2)).

In short: section 19 answers "my child is out of school now, who educates them in the meantime?", and EOTAS answers "school itself is the wrong setting for my child, what replaces it?". Many families use section 19 provision as the bridge while they seek EOTAS through the plan. Both are covered below, with the comparison, including elective home education, in one table.

The section 19 duty: education when your child is too ill to attend

Section 19(1) of the Education Act 1996 is short and strong. It is worth reading in full, because it is the sentence you will quote to the council.

"Each local authority in England shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."

Education Act 1996, s.19(1)

Three things in that wording carry real weight. "Shall" means the duty is not optional. "Or otherwise" means the trigger is not limited to illness and exclusion; what matters is that your child may not receive suitable education without the council acting. And "suitable" is defined in s.19(6) as efficient education suited to your child's age, ability, aptitude and any special educational needs. Provision that ignores your child's needs is not suitable provision.

The education arranged must normally be full time. Part-time provision is only lawful where the council considers that, for reasons relating to your child's physical or mental health, part time is in your child's best interests (s.19(3A)). A weekly hour of online tuition offered to a child who could manage more is not the duty discharged; it is the duty deferred.

The 15 day expectation

The Act itself sets no day count, and it would be wrong to pretend it does. But the Department for Education's statutory guidance on health-related absence, which councils must have regard to, is specific: as soon as it is clear that a child will be away from school for 15 days or more because of their health needs, the council should arrange suitable alternative provision. The 15 days may be consecutive or spread over the school year, so a pattern of repeated short absences counts too. The same guidance says the education should begin as soon as possible, and at the latest by the sixth day of the absence (DfE, Arranging education for children who cannot attend school because of health needs, statutory guidance under s.19).

What is EOTAS? Education otherwise than at school in an EHCP

EOTAS is the EHCP route. Section 61 of the Children and Families Act 2014 lets a council arrange for the special educational provision it has decided is necessary for your child to be made otherwise than in a school, post-16 institution or early years setting (s.61(1)). The council may only do this if it is satisfied that it would be inappropriate for the provision to be made in one (s.61(2)), and it must consult you, or your young person, before doing so (s.61(3)).

Because s.61 is about provision the council has decided is necessary, EOTAS in practice runs through an EHC plan. The whole package, tutors, therapies, hours, settings, is specified in Section F, and Section I is left blank, because there is no school or institution being attended for it to name. That structure matters more than it sounds. Once provision is in Section F of a final plan, section 42(2) requires the council to secure all of it, with no grace period and no budget defence. EOTAS is not the council washing its hands of your child's education; it is the council taking direct responsibility for delivering it without a school in the middle. The guide to EHCP sections A to K explains what belongs in each section.

EOTAS is education arranged and funded by the council, reviewed annually like any other plan (the annual review guide covers that cycle), and enforceable in exactly the same way as provision delivered in a school.

The "inappropriate" test: when EOTAS can be agreed

Everything turns on one word in s.61(2): the council must be satisfied it would be "inappropriate" for the provision to be made in a school. The Act does not define it, so it takes its ordinary meaning: a school would not be a suitable or fitting place for this child's provision to be delivered, looking at the whole picture.

In practice that means an assessment of your child as they actually are, not as a hypothetical child with the same diagnosis. Relevant strands include your child's history in school settings and what happened there, the effect school attendance has had on their mental and physical health, the evidence of professionals about what they can currently access, whether any school realistically available could deliver the provision they need, and your child's own views. The question is not whether a school could theoretically cope. It is whether, for this child, at this point, provision in a school would be inappropriate.

Two honest cautions. "Inappropriate" is a higher bar than "my child is unhappy at school", and councils and the Tribunal will look for evidence, not assertion. And EOTAS is generally treated as a staging post rather than a destination: packages are usually reviewed with an eye on whether a return to a setting becomes possible. Neither caution weakens the route. They just tell you what the evidence has to do, which is covered below.

EOTAS vs section 19 vs home education: the differences

Councils sometimes blur these three, and the blurring is rarely in your favour. The most common confusion pushed onto parents is treating a request for EOTAS as if it were an election to home educate. They are legal opposites on the point that matters most: who carries the duty, and who pays.

EBSA: when anxiety, not illness, keeps your child at home

Emotionally based school avoidance, sometimes called emotionally based school non-attendance, describes a child who cannot attend school because of overwhelming anxiety or distress rather than a physical illness. If this is your child, you have probably already met the two responses that make it worse: pressure on attendance, and the suggestion that it is a parenting problem. Neither is the law's position.

Legally, EBSA sits inside both routes. For section 19, the words "illness ... or otherwise" in s.19(1) do the work: mental health needs are health needs, and the statutory guidance on children who cannot attend school because of health needs expressly covers mental as well as physical health. A child at home with severe anxiety, unable to access education, is a child the s.19 duty is written for, and the 15 day expectation applies to them like anyone else.

For EOTAS, sustained EBSA is one of the most common foundations for the "inappropriate" argument, because the evidence often shows precisely that school attendance itself, in any available setting, is what your child cannot currently manage without harm. What turns that lived reality into a successful request is evidence from the professionals around your child, which is the next section.

One practical point: attendance enforcement and fines sit awkwardly alongside all of this, and a council pursuing prosecution while ignoring its s.19 duty is acting inconsistently. If that is happening, say so in writing and get advice from IPSEA or your local SENDIASS early.

How to request EOTAS, and the evidence that matters

There is no EOTAS application form. The request is made within the EHCP machinery, at whichever point your case has reached.

1. No EHC plan yet: request an EHC needs assessment first. The threshold is low, and the 20 week clock to a final plan starts at the request. Ask for EOTAS in your parental views and in your response to the draft plan.
2. Draft plan stage: use your 15 day representation window to ask for the provision to be specified in Section F as a package delivered otherwise than at school under s.61, with Section I left blank.
3. Existing plan: raise it at the annual review, or request an early review or a re-assessment if things have changed sharply. The council's decision after review is appealable if it refuses to amend.

Whatever the stage, the request stands or falls on evidence that provision in a school would be inappropriate for your child. The strongest files usually contain:

• Professional evidence tied to school attendance itself: letters or reports from a GP, paediatrician, CAMHS, an educational psychologist or a therapist, describing the effect attendance has on your child and what they can currently access. The closer the report gets to "this child cannot currently receive their provision in a school setting", the more it carries.
• The history, in dates: placements tried, adjustments made, part-time timetables, breakdowns, exclusions, periods at home. A one page chronology beats a folder of loose letters.
• Evidence that alternatives were considered: the test is about schools in general, so show what has been tried or consulted and why it failed or would fail, not just that the current school went wrong.
• Your child's own views, in their words or through drawings, messages or a trusted adult. Section 61(3) requires consultation, and Tribunals take children's voices seriously.
• A concrete proposed package: what provision, how many hours, who delivers it, where. A request that arrives with a workable package attached is much harder to dismiss than a bare "we want EOTAS".

While all of this is in motion, keep the section 19 request running in parallel. Your child's interim education does not wait for the EHCP process to finish.

Case Manager tracks the annual review date and the two month window to appeal after the council issues, amends or refuses to change the plan, and keeps a dated log of every contact with the council. Sign up for Case Manager

What an EOTAS package can include

Anything that is special educational provision can go in, provided it is specified in Section F with the usual precision: what, how much, how often, delivered by whom. Real packages commonly include one-to-one tuition at home or online, therapies such as speech and language or occupational therapy, mentoring, alternative provision settings like forest school or a small tuition centre, exam entry as a private candidate, and structured activities that deliver social or life-skills outcomes. Vague wording fails in EOTAS packages exactly as it fails in school-based plans, and with no school to fill the gaps, precision matters more, not less.

You can also ask for a personal budget, including direct payments, so that some or all of the package is money you deploy on the specified provision. The council must prepare one on request when it maintains the plan or is preparing one (CFA 2014, s.49(1)), and provision you buy with direct payments counts as secured under s.42(2) (s.49(5)). Direct payments cannot be used to fund a place at a school or post-16 institution (Personal Budgets Regulations 2014, reg 6(2)), but an EOTAS package is not a school place, which is why the two fit together so often.

If the council says no: your appeal rights

A refusal of EOTAS is challengeable at every stage, because it always resolves into one of the appealable matters in section 51 of the Children and Families Act 2014.

If the council refuses to assess, or refuses to issue a plan, those refusals are appealable in their own right (s.51(2)(a), (b)). Once a plan exists, the EOTAS question is an appeal about the plan's contents: the description of your child's needs in Section B, the provision in Section F, and Section I, including the fact that a school is named at all (s.51(2)(c)). Parents seeking EOTAS appeal B, F and I together and ask the Tribunal to specify the package in Section F with no school in Section I. If the council refuses to amend the plan after a review or re-assessment, that refusal is appealable too (s.51(2)(e)).

The deadline is the standard one: two months from the date the decision notice was sent, or one month from your mediation certificate, whichever is later (HESC Rules 2008, r.20(1)(c)). Because a B, F and I appeal goes beyond placement alone, you will need the mediation information step first; the Tribunal guide walks through the certificate and the form. It is worth knowing before you start that the great majority of appeals that reach a decision go the parent's way, and that after an order the council is on tight compliance deadlines, five weeks to amend Section F provision (SEND Regs 2014, reg 44(2)(e)).

If the failure is not a decision but silence, a missed deadline, or section 19 provision that never materialises, the Tribunal is not the route; the complaint ladder and, in urgent cases, judicial review are. Start with the escalation guide, and put your dates through the free deadline checker so every letter you send cites the exact deadline the council has missed.