Published this month, binding on every SEND Tribunal and local authority in England. Three things it settles — and one thing it doesn't.
If your child's needs can't be met in a school, and you've been told that Education Otherwise Than At School isn't available because “some” of their provision could be delivered in a classroom — or you asked for EOTAS and were handed a special school placement instead — an Upper Tribunal decision published on 11 September changes the ground you're standing on.
AM and SP v Wokingham Borough Council [2026] UKUT 327 (AAC) is now binding on every First-tier SEND Tribunal and every local authority decision-maker in England. It doesn't hand anyone an automatic entitlement to EOTAS. But it corrects three ways councils and tribunals have been getting the law wrong, and each of them matters if you're in the middle of this argument.
S was six, autistic, with a language delay and needs across communication, cognition, sensory and emotional development. He was on roll at an infant school but attending for one hour a day, after a previous placement had failed. For the rest of the time his parents and a tutor were delivering an applied behaviour analysis programme at home.
His parents asked the tribunal for EOTAS so the home programme could be provided in full. The council argued the s.61 threshold wasn't met, because a specialist setting could deliver all or most of it.
The tribunal agreed with the council. It found that S needed 30 hours a week of home-based ABA — and then, in the same decision, ruled that s.61 didn't apply because it wouldn't be inappropriate for his provision to be made in a school. It named “a special school” in Section I and left the name blank.
The parents appealed. Unusually, the council supported them.
This is the finding with the widest reach.
The original tribunal had written that s.61 wasn't satisfied if “any part” of the provision could be made in a school. The Upper Tribunal said that was the test backwards. The trigger isn't whether some provision could be delivered in school — it's whether any part of it would be inappropriate in school. And if only part is inappropriate, s.61 applies to that part.
What this means in practice: “a school could deliver most of it” is no longer a complete answer. A council or tribunal has to look at each element of a child's provision and ask, for each one, whether delivering it in a school would be inappropriate. Where the answer is yes for some elements and no for others, the law supports a hybrid arrangement — EOTAS for the parts that need it, school for the rest.
The Upper Tribunal also closed a common escape route. The original tribunal had described S's home programme as “transitional,” a stepping stone towards eventual school attendance. The judge's response: if the tribunal thinks provision needs to be made at home for a period of time — however uncertain its length — then it has, in substance, found that making that provision in school is inappropriate for that period. Calling it transitional doesn't switch s.61 off. (Paragraph 21.)
Section F of an EHCP sets out the special educational provision a child requires. The council had argued a tribunal has no power to say where that provision should happen.
The Upper Tribunal disagreed — with a limit. Location can go in Section F where it is “inherent, or integral, to its educational or training quality.” (Paragraph 26.) The judge expects this to be rare, and said best practice is for a tribunal to explain briefly why the location matters in that particular case.
What this means in practice: if your child's provision genuinely only works at home — because the environment is part of what makes it effective, not just convenient — that can now be written into the plan. But the evidence has to make the connection between the place and the provision. “We'd prefer home” doesn't do it.
This one traps a lot of families.
When a parent hasn't named a specific school, s.33(2) requires the council to secure a mainstream placement — unless that would be incompatible with the parents' wishes, or with the efficient education of other children. The original tribunal skipped that step entirely, went straight to “a special school,” and reasoned that since the parents wanted EOTAS, they presumably didn't want mainstream.
The Upper Tribunal found that was an error of law. Asking for EOTAS is not the same as saying you'd accept a special school over mainstream if the tribunal decides against you. There was no finding that mainstream was incompatible with the parents' wishes, and none about efficient education of others. Without those findings, “a special school” couldn't lawfully go in Section I. (Paragraphs 30–31.)
S's parents did not win EOTAS. They won the right to have their case reconsidered by a fresh tribunal panel, applying the law correctly. The new hearing is consolidated with a second appeal and listed for later this year.
The judgment doesn't create an entitlement. It doesn't mean every family with a home programme gets EOTAS. And the Section F point is explicitly a narrow one — the judge went out of his way to say location in Section F will “rarely” be justified.
What it does is give families three legal principles, binding on tribunals and councils, that can be cited by name and paragraph. That's a different thing from a guarantee, and it's worth being clear-eyed about the difference.
Read the three rulings together and one thing runs through all of them: the tribunal's original errors were errors of reasoning from evidence. It found S needed home-based provision, then concluded school was appropriate. It imagined “alternative provision through a school” without any evidence of what that was. It named a special school without any finding about mainstream.
The Upper Tribunal's fix, in each case, is to demand that decisions be grounded in specific findings about this child — what each element of provision is, why delivering it in school would be inappropriate, why location matters, what the parents would accept.
None of that can be argued from a diagnosis alone. It requires a current, detailed, independent account of the child's needs, element by element — which is precisely the kind of evidence that was missing from the original hearing.
Asking for EOTAS, or being pushed towards a placement you don't think is right? A free 15-minute call is a calm place to talk through what evidence your case is missing.
Book a Free 15-Minute CallWe don't run appeals and we don't represent families at tribunal. For that, IPSEA, SOS!SEN and your local SENDIASS are free, independent, and the right first call — and the parents in this case were represented by SEN Action, a specialist advocacy organisation.
Where we fit is on two of the things this judgment turns on.
“Lauren has been teaching my son for around a year now & the change in him has been nothing short of amazing! Thanks to Lauren he will soon enter back into full time education. Something I didn’t think possible before Lauren entered into his life.”
“I approached Lauren when looking for a tutor for my son who has SEN and has been home educated for 3 years due to a traumatic time at secondary school. Lauren has the patience of a saint and has been so understanding of my son’s needs adapting sessions and putting strategies in place to unlock him from his mutism.”
A council saying “a school could do most of it” used to end the conversation. This ruling means it now has to answer a harder question: which parts, and why would the rest be inappropriate?
What is the AM and SP v Wokingham ruling?
An Upper Tribunal decision ([2026] UKUT 327 (AAC), decided 21 August 2026, published 11 September) that found a SEND Tribunal had made three errors of law in an EOTAS case. It is binding on First-tier Tribunals and local authorities in England.
Can EOTAS be granted for only part of a child's provision?
Yes. The Upper Tribunal confirmed that section 61 applies wherever it would be inappropriate for any part of a child's necessary provision to be made in a school, and where only part is inappropriate, the power to arrange EOTAS arises for that part.
Can an EHCP say provision must be delivered at home?
It can, in Section F, where the location is "inherent or integral" to the educational quality of the provision. The Upper Tribunal expects this to be rare and says the reason should be explained.
If I ask for EOTAS, can the council name a special school instead?
Not without first considering section 33(2). Where no specific school has been requested, the council must secure a mainstream placement unless that's incompatible with the parents' wishes or the efficient education of others, and asking for EOTAS is not, on its own, evidence that mainstream is unwanted.
Did the family win EOTAS?
No. The Upper Tribunal set aside the original decision and sent the case back to a fresh tribunal panel to be reconsidered, applying the law correctly. The ruling establishes legal principles; it does not guarantee any particular outcome.
Who can help me with an EOTAS case?
IPSEA, SOS!SEN and your local SENDIASS offer free, independent advice. Education With Lauren provides independent assessment evidence and EOTAS delivery, but does not run appeals.
This article is general information about a published tribunal decision, not legal advice. Every case turns on its own facts, and this ruling does not guarantee any outcome. Education With Lauren does not run appeals or represent families at SEND Tribunal. For advice on your own situation, contact IPSEA, SOS!SEN or your local SENDIASS.
“Which parts, and why would the rest be inappropriate?”