Kathryn Saban helps you navigate the process where a child or young person is struggling with their attainment or requires a greater level of support for their education.
Education, Health and Care Needs Assessment (‘EHC needs assessments’) are formal assessments arranged by the Local Authority in order to assess a child or young person’s education, health and social care needs. There are many myths surrounding the process for securing an EHC needs assessment but it is important that decisions made by a Local Authority are only based upon the stipulations set out in law.
What does the law state?
The relevant law to be considered is found in Section 36(8) Children and Families Act 2014. This sets out two requirements. If both requirements can be answered positively, then an EHC needs assessment must be carried out by the Local Authority.
The two requirements are:
(a) the child or young person has or may have special educational needs (‘SEN’), and
(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an Education Health and Care Plan (‘EHC Plan’).
Requirement One: The child or young person has or may have special educational needs
The legal test for carrying out an EHC needs assessment has a low threshold. The first requirement states that a child should have or ‘may’ have SEN. This therefore does not stipulate that a child/young person must have a formal medical diagnosis, nor does it require a pre-existing full understanding of a child or young person’s SEN; after all, the purpose of the EHC needs assessment is to determine the nature and extent of the SEN that a child or young person has.
The legal definition for what constitutes ‘SEN’ is set out in Section 20 (1) Children and Families Act 2014 which states ‘A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.’
A ’learning difficulty’ is defined in law as ‘a significantly greater difficulty in learning than the majority of others of the same age’, or ‘a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions’ (as detailed in Section 20(2) Children and Families Act 2014). The concept of what is ‘special educational provision’ is considered under requirement two (below).
When making a request for an EHC needs assessment, it is important to consider what information the Local Authority may need from you. In order to satisfy requirement one, if your child or the young person already has identified SEN this should be detailed in your request, enclosing any supporting reports (such as recent school or college reports, medical letters, or evidence of professional involvement).
If your child or the young person ‘may’ have special educational needs, it is vital to detail the needs that you consider your child or the young person has, and stipulate the areas of need that require further investigation. Demonstrating the difficulties faced with accessing education or training is essential.
Requirement Two: It may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan
The second requirement in the legal test as to whether an EHC needs assessment is needed is that it ‘may be necessary’ for a child to receive special educational provision through an EHC Plan. Again, this is a low threshold. It only has to be satisfied that an ‘EHC Plan’ ‘may’ be necessary, not that an EHC Plan is definitely required. Again, the purpose of the EHC needs assessment process is to assess the level and specificity of the provision a person needs.
Special educational provision is defined in Section 21 Children and Families Act 2014 as educational or training provision that is additional to, or different from, that made generally for others of the same age. The key term here is that the child or young person requires support with their education and/or training. If a child needs support for their health and social care needs, but this does not impact on their education and training needs, then that support would not constitute special educational provision.
In a request, you would need to show that the level of support required is greater than a school or college can provide. This could include that specialist support, small group teaching, specialist teachers or therapeutic sessions (such as support from a speech and language or occupational therapist) is needed.
Any other ‘test’ or policy that is used, that does not specifically follow the requirements of the law, or sets a higher threshold, should not be followed.
A common myth is that in order for an EHC needs assessment to be carried out a child or young person has to have already been assessed by an Educational Psychologist. This is not the case and there is no requirement in law for this.
Another common myth is that a school must have had at least two years of arranging their own specialist support for the child, before an assessment should be requested. Again, this is not stipulated in the law, so cannot be used as a reason not to carry out an EHC needs assessment.
Parents may be told that ‘the Local Authority in our area does not carry out EHC needs assessment’.
However, it would be unlawful if a Local Authority had a blanket policy to never carry out EHC needs assessments.
Who can make a request for an EHC needs assessment?
Parents of children between the ages of 0-16 years and young people between the ages of 16-25 can apply. Parents, however, can make a request for a young person who does not have the mental capacity to make a request themselves.
Requests should be made in writing and addressed to the Director of Children’s Services at your Local Authority. Some Local Authorities ask for requests to be made using their specific form (usually found on their website), but a letter will also suffice. It is advisable to date any request and send it by a method of recorded delivery (so that you can ensure that the request is received by the Local Authority and in order to keep an eye on the deadline for a response). The Local Authority should respond to a request for an EHC needs assessment within six weeks of receiving it.
What happens if the request is rejected?
If a Local Authority refuses to carry out an EHC needs assessment, then they must write to you explaining this decision. Within the decision letter, the Local Authority must inform you of your right to appeal against the decision. Any appeal is made to an independent tribunal called the First-Tier Tribunal (Special Educational Needs and Disability).
Before appealing, parents/young people should consider whether they wish to engage in mediation with the Local Authority. You are not required to engage in mediation, but this process must at least be considered. The mediation service (detailed on your decision letter) will issue a mediation certificatewhich then allows you to make an appeal. Appeals must reach the tribunal within two months of the decision letter, or one month from the mediation certificate, whichever date is later.
If the Local Authority refuses a request by a young person, any appeal should be made by the young person (a parent can support a young person who does not have the mental capacity to make the appeal, but the appeal should be in the young person’s name).
What happens if the Local Authority agrees to carry out the EHC needs assessment?
The Local Authority in agreeing to carry out an EHC needs assessment, should therefore arrange for a variety of professionals to assess. The Local Authority should gather evidence from: the school/college, the parent or young person, an educational psychologist, medical advice from a health care professional, social care advice and advice from any other person the Local Authority deems appropriate. The Local Authority should also seek advice from any person the parent or young person reasonably requests (this could be for example, a speech and language therapist, a specialist teacher or an occupational therapist). In addition, where a child or young person has a hearing impairment and/or a visual impairment, the Local Authority should seek educational advice from a suitably qualified person.
At the end of the EHC needs assessment, the Local Authority must determine whether to issue an EHC Plan, and a further decision letter setting out the decision made should be sent to the parent or young person.
Deciding whether to make a request for an EHC needs assessment can be a difficult and stressful decision to make. However, it is important not to listen to the myths that surround this process. All Local Authorities must adhere to the two requirements set out in law in Section 36(8) Children and Families Act 2014, and a higher threshold than what is required in law, should not be put in place when decision making.
Kathryn Saban is a Solicitor and Lecturer at Lancaster University Law School, specialising in education law and clinical legal education. She co-directs Lancaster University’s Law Clinic.