Page 39 - SEN114 September/October 2021

SEN law
About the author
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.
@KathrynSabanLaw @LancUniLaw
“Demonstrating the difficulties faced with accessing education or training is essential”
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.
Myth Buster
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 age 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.
The Application
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
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