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The legal test remains the same and is found at Section 61 of the Children and Families Act 2014 which states:

(1)A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.

(2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.

(3) Before doing so, the authority must consult the child’s parent or the young person.

The question to consider is what provision which has been identified and is required for the child/young person would be inappropriate to be provided within a school/ post 16 institution.

In relation to trialling a school placement or short-term placement/medical tuition, there needs to be consideration as to what information has already been obtained which may go to the issue of determination of appropriateness of a school setting.

A personal budget is the notional amount of money that would be needed to cover the cost of making the special educational provision specified in Section F of the EHCP for parents/carers/ young people to arrange the provision instead of the LA (who are under a duty to implement Section F of the EHCP). A LA is only required to consider a personal budget when an EHCP is in draft form.
It is important to note that a personal budget is not guaranteed. You can request a personal budget and the Local Authority can refuse if they have any concerns, for example regarding matters of public expenditure and it being more cost effective for the LA to arrange the provision.
If the LA refuse a personal budget, the LA must provide reasons for that decision, and parents/carers/ young people can ask for reconsideration, but challenging this refusal is limited as this is not able to be appealed to the First-Tier Tribunal (Special Educational Needs and Disability) .
If a personal budget is agreed, the proposed Personal Budget should be included in Section J of the draft EHCP making it clear what the budget should cover. The budget has to be sufficient to arrange the specified provision.
Before agreeing a personal budget, it is not unusual for LAs to require parents to submit estimates and quotes to evidence the amounts being requested by them.

If you are going through the first EHCP process, known also as the EHC needs assessment process, you can request EOTAS at the draft EHCP stage. If you already have an EHCP in place, you may submit a request for EOTAS at the Annual Review. If you do not have an Annual Review taking place for some time, you may submit a request for an emergency review or a reassessment of your child’s needs for an EHCP (depending on the particular circumstances).
As EOTAS relates to provision and the appropriateness of that provision being implemented within a school setting, it is important that the provision in Section F of an EHCP clearly sets out what is required for the child’s needs.
Case law has established that the provision stated in Section F must be specific and quantified. The provision in Section F must be described in enough detail so that parents, among others, can clearly tell what must be delivered, how often (for example in terms hours and frequency) and how it must be delivered, to provide some examples.
Vague statements and words such as “opportunities”, “benefit”, “as required” and “access” are well known to be unacceptable phrases and lead to statements of provision that are too vague to be enforceable.

Under Section 7 Education Act 1996 parents are under a duty to ensure their child gets a ‘suitable’ education. Section 7(b) states that education can take place by regular attendance at school “or otherwise”. It is important to note the section 7 duty is only applicable when a child is of compulsory school age (broadly speaking age 5 to 16).
Education is therefore compulsory for a child of compulsory school age, but school is not. A parent can therefore choose to provide that suitable education at home, and where a parent chooses to do so, it is known as ‘Elective Home Education’ or ‘EHE’. In this case, the parent is taking responsibility to fund education themselves.
A parent may need to educate their child at home because there is no viable alternative due to their child’s particular needs, whether medical or otherwise. This is different to Elective Home Education because the parent has not chosen or ‘elected’ to educate them at home. This is a situation where parents are requesting for the Local Authority to provide the suitable education at home instead of the parents taking on that duty of providing suitable education at home. This is known as ‘education otherwise than in a setting’ (“EOTAS”) or ‘education otherwise’. An EOTAS package will be entirely funded by the Local Authority.

The LA should provide information about EOTAS/ alternative provision within its local offer of which can be found online on the Local Authority’s website.

You need to be considering the professional advice available and build an EOTAS package around that advice. Section F of an EHCP and any EOTAS package must address the special educational needs set out in Section B. There should be corresponding provision in Section F for each need. To provide an example, If the child or young person has difficulties with anxiety and social emotional, mental health needs, thought needs to be provision in any EOTAS package to meet those needs.

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What makes an education setting inappropriate? What makes a setting inappropriate depends on your child’s individual needs and what provision is being recommended for your child for those needs.

The case of NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) has provided succinct and helpful guidance as to how Education Otherwise Than At School should be applied. Judge Rowley confirmed that the Tribunal and the LA should ask itself whether it is satisfied that it would be inappropriate for any special educational provision that it has decided is necessary for the child to be made in any school and whether any part of the provision would be inappropriate to be made in any school.

Judge Rowley explained that to consider those questions, the LA and Tribunal must ask if a “school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case. Without being an exhaustive list, those circumstances might include:
i. the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child

Yes the Local Authority can name a setting if a child has not attended that placement for over a year instead of providing EOTAS as the Local Authority can name a school or institution which it thinks would be appropriate for the child or young person.  Parents can challenge that determination by way of a SEN Tribunal appeal if within the prescribed time limits of 2 months from receiving the EHCP or 1 month from the date of the mediation certificate (whichever is later date) and appealing Section I. The factors regarding why the child has not been able to attend for over a year will be considered as outlined in NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) regarding considering educational history.

It may be beneficial to set out in a table the child or young person’s need, the provision required for that need and then an additional column setting out why that provision would be inappropriate to be provided within a school setting.

It will also be beneficial to set out where possible the costs of the provisions you are seeking.