Ilona Roberts and Bethany Hutchison consider the issue of ‘suitability’ in light of a recent EOTAS (‘education otherwise than at school’) case.
Under the Education Act 1996, local authorities (LAs) have a duty to ensure the suitable education of all compulsory school aged children. For the majority of children and young people, this will take place in school. But what does a ‘suitable’ education look like when it comes to children whose special educational needs and disabilities (SEND) mean that attendance at a formal school setting is inappropriate?
For some families, Elective Home Education is an answer to this challenge. However, for many parents, the financial and logistical complications of providing for their child’s SEN, discounts this option. One viable alternative is EOTAS, or ‘education otherwise than at school’. Where it is deemed inappropriate for a child to be educated in a formal setting, this provision allows an LA to arrange for a child or young person with SEND to be educated by way of a suitable alternative (s 61, Child and Families Act 2014).
Yet as anyone who works for an LA knows, each child’s needs are different and what is ‘suitable’ for one individual may not be for another. Examination of a recently published case, R (Q) v Staffordshire CC  EWHC 3486 (Admin), highlights how contentious the issue of ‘suitability’ can be.
R (Q) v Staffordshire CC concerns the suitability of the education provided to “Q”, a five-year-old boy with SEND. On becoming eligible for a school place in September 2020, Q initially attended a local mainstream school. Within a month of starting however, it became apparent that his attendance was inappropriate; the staff could not meet his needs and his behaviour culminated in his assaulting another pupil, resulting in exclusion from the school.
From January 2021, school staff arranged for Q to attend VIP Stop Gap, a temporary facility which provides occupation, activity and learning for children who are struggling in school, which Q attended part-time. Q’s behaviour continued to be very challenging, including being temporarily excluded for assaulting an adult at the facility.
In May 2021, on request by the school, the LA began a statutory assessment of Q’s needs. It was not until September 2021 that Q, through a solicitor, first complained about the educational provision, but the action was taken no further on reassurance that work to address the issues was ongoing and a judicial review would be premature.
While this process was ongoing, Q’s behaviour improved significantly, leading a manager of VIP Stop Gap to come to the view that a generic special school would be appropriate for Q’s needs. This led the LA to obtain a further educational psychologist report and widen their search for a placement.
In October 2021, Q’s judicial review claim against the LA was issued alleging a breach of s 19 of the Education Act 1996 and claimed damages for an alleged breach of article 2 of the First Protocol to the European Convention on Human Rights. The claim also sought interim relief in the form of an order that “within 7 days of this order, the Defendant must provide suitable, full-time education that meets the Claimant’s needs.” Interim relief was not granted.
By the time of the substantive hearing in December 2021, an appropriate placement had been found, and accepted by Q’s parent; he was due to start there in January 2022.
We focus in this article primarily on the first ground: the alleged breach of section 19 of the Education Act 1996 (EA 1996).
Legal implications for the question of ‘suitability’ in EOTAS cases
Section 19 of the EA 1996 imposes a duty on LAs to “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”. It is the basic safety net provision which ensures all children receive a suitable education of one sort or another. What is ‘suitable’ means “efficient education suitable to his age, ability and aptitude and to any special educational needs he may have” (s 19(6) EA 1996).
For Q, then, the question was whether the LA failed to provide ‘suitable’ education under s 19. Q alleged that VIP Stop Gap was not suitable because it did not employ qualified SEND teachers, nor did it employ a dedicated SENCO. Additionally, it was part-time, and Q had been entitled to full-time provision since September 2020. In addition, the claimant also submitted that VIP Stop Gap was not providing ‘education’; it was instead akin to ‘merely playing’ or childminding.
Kerr J did not accept the submission that to be suitable, EOTAS provision had to be ‘equivalent’ to the education that could be provided in a school setting. In deciding this issue, Kerr J was directed by the LA’s counsel to Bevan v Shears  2 KB 936, a case which allowed for magistrates to find that a child was receiving suitable home education without deciding it was as efficient or in other words, ‘equivalent’ to that which he would be receiving in a school setting. In short, ‘suitability’ does not always equal equivalence to education in a school.
Secondly, Q’s allegation that the part-time nature of VIP Stop Gap’s provision rendered it a breach of duty to provide a suitable education was dismissed. Kerr J accepted the LA’s submission that Q’s attendance level was “determined by reference to what it is considered he can cope with” (paragraph 46). Under this determination, part-time provision was appropriate and suitable, with no statutory duty to formally assess to that effect. Kerr J held that this provision was suitable and was a ‘good start’ in responding to a very difficult educational problem.
Thirdly, the content of VIP Stop Gap’s daily schedule was cited by Kerr J as evidence of educational value; VIP Stop Gap provided a timetable indicating that from September 2021, Q was attending classes such as maths, art therapy and IT skills, as well as ‘personal interaction’. This led to Kerr J’s comment that Q’s time at the VIP Stop Gap placement was not “provision of unsuitable education’, and “still less that it was not education at all”. He stated, “I am satisfied that it was education otherwise than at a school within section 19” (paragraph 52).
Finally, and importantly, Freedman J at an earlier hearing found that were he to order the LA to place Q in a school within 7 days, as was requested by the claimant, he would be concerned about the likelihood of placing the LA at risk of contempt given the infeasibility of compliance. Ultimately in this case, Kerr J judged that, albeit temporary, a suitable EOTAS placement had been found by the LA while they looked at more permanent options for Q; the suggestion that the LA had not acted in a timely manner was also rejected.
Key lessons for LAs
This case highlights some key takeaways for LAs, particularly with regards to the importance of rigour and timeliness in the EHCP process. By assessing and amending Q’s EHCP throughout the search for a permanent placement, a ‘suitable’, permanent, special school for Q was ultimately found, and agreed by his parents.
Suitability of a future placement, therefore, could only be determined by the outcome of the EHCP process after formal assessment of Q’s needs had taken place. It is also at the conclusion of this process that the right of appeal to the FTT is triggered, which Kerr J argued would have been a more appropriate arena for a dispute of this kind. In the interim, the documenting of evidence of decision making is key; evidence of VIP Stop Gap’s provision played a key role in finding that the LA was not in breach of their duty to provide suitable education for Q.
However, the outcome of an application for permission to appeal is awaited; evidently, issues of suitability remain contentious.
Ilona Roberts and Bethany Hutchison are Paralegals at LASEN Ltd. LASEN host regular online training for local authority SEND and EHCP officers. For more information, local authority employees will need to become members of LASEN at https://www.lasen.co.uk. LASEN membership is free of charge but only open to local authority employees.
This article is written for general information purposes. It does not constitute legal advice and should not be relied on as such.