An EHC needs assessment is defined in section 36 (2) of the Children and Families Act 2014 as an assessment of the educational, health care and social care needs of a child or young person. Although it is a required step towards the obtaining of an EHC plan, it is not necessary to establish that the child/young person definitely needs an EHC plan in order to obtain the assessment.
The point of the assessment is to determine whether or not the EHC plan is necessary. Refusing an EHC needs assessment solely because the LA believe an EHC plan is not necessary is not the right test.
If the request was made by the parent/young person, it is important to find out whether or not it was supported by the school/other setting. The appeal is more likely to be successful if the school/educational setting supports this.
The LA also has a duty to consult the child’s parent or the young person before making its decision.
The legal Test
The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under section 36 of the Children and Families Act 2014 subsection (7), the authority is of the opinion that—
(a) the child or young person has or may have special educational needs
As such, the LA is of the opinion that the child or young person has either a learning difficulty or a disability; and that this learning difficulty or disability requires special educational provision to be made for him or her.
Nevertheless, this is not a particularly high bar. To have a learning difficulty or a disability is about having a significantly greater difficulty in learning than the child/young person’s peers or there being barriers in place which prevent or hinder the child or young person from accessing their education. It is not about being severely disabled or being a particular number of months or years behind. The child or young person may be intellectually very bright but not be able to access education because of physical disabilities or mental health issues. (e.g.: dyslexia, dyspraxia, sensory processing disorder, autism spectrum or ADHD to name some)
(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
Although this is often the more difficult aspect of the test to establish, it is important to remember that under the Children & Families Act 2014, special educational provision ("SEP") is not just about education, but education or training – which is additional to or different from what is available in mainstream schools in England.
The parent/young person may have to establish why the school, nursery or college is not likely to be able to provide the SEP required from their own resources.
Generally there are three ways of establishing this. It can be argued that:
- A full assessment is the only way to find out what the difficulties are and what help is needed; in which case it could be argued that advice from a number of different professionals is needed to fully understand the special educational needs of the child or the young person. In other words, professionals do not yet understand enough about the difficulties and only a full investigation can help everyone understand the nature and severity of the difficulties and decide what help is needed. It is often helpful to also show that they may need an EHC plan if their needs are to be met.
- The school/institution may not be able to supply all the educational help needed unless it receives extra help from the LA; in which scenario the case will need to be made that the SEN may not be met without an EHC plan. The test is not that an EHC plan is necessary, only that it may be necessary.
- The school/educational setting has provided all the help that could be expected but the child or young person has not made enough progress. As in point 2, the case will need to be made that the SEN may not be met without an EHC plan. The test is not that an EHC plan is necessary, only that it may be necessary
The following draft letter provided by SOS!SEN can be useful with preparing your appeal: Drafting Reasons for Appeal for refusing to provide an EHC needs assessment