Education Law

Expert Education Law advice courtesy of the dedicated team of nationally respected specialist lawyers at HCB.

  • Comprehensive advice on all aspects of education law
  • Proven expertise in special educational needs and higher education law

How to get an EHC needs Assessment

The starting point for special educational needs support is in-class support. This means that your child’s class teacher provides differentiated learning opportunities in class to help them make progress and carefully monitoring them to see if progress is being made.

Where a child has failed to make progress, the school’s Special Educational Needs Co-ordinator (SENCo) should review the special educational provision being made for that child. It may be appropriate to provide special educational provision via ‘Assess, Plan, Do, Review’.

If a child has still failed to make expected academic progress then it may be appropriate to see an Education Health and Care (EHC) needs assessment. This is conducted by the local authority to determine the child’s special educational needs and the provision required to achieve progress (whether within the school’s resources or within a Statement of Special Educational needs) should then be considered.

The legal criterion is found in Section 36 of the Children and Families Act 2014. When determining whether to carry out an EHC needs assessment, the questions is whether it is “probably necessary” for a local authority to determine the specialist provision a child’s special educational needs require.

In determining whether this determination is “probably necessary”, a local authority should look at the level and the extent of a child’s learning difficulties, the provision the child has received and also any additional provision independently provided by a child’s parents.  The local authority should also examine whether any of the child’s needs may indicate other learning needs which may not have been identified yet.  After considering this, it should go on to judge the child’s progress and determine whether progress is adequate; if independent provision is being provided, it should consider whether progress would be halted or reversed without this provision.

Each case must be examined on an individual basis.  However, generally, if - after examining all of the above information - it becomes clear that a child is not making and indeed cannot make progress without an EHC needs assessment taking place, then the local authority should conclude that it is ‘necessary’ to carry out the Assessment.

When making a request for an EHC needs assessment it is important to ensure that your request applies the law correctly.

Unfortunately, in deciding whether to carry out an EHC needs assessment, many local authorities’ internal panels will rely on internal criteria which may not reflect the actual legal criteria.  These internal criteria are often rigidly applied without fully looking at an individual child’s needs and circumstances.  In many cases, they can have a much higher threshold for an EHC needs assessment than the legal threshold of probable necessity.  This means that, in many cases, a local authority will wrongly turn down a request for an EHC needs assessment.

If the local authority does refuse to make an EHC needs assessment, we can help you with an appeal to the Special Educational Needs and Disability Tribunal. There is a time limit to starting the appeal, so you need to take action as quickly as possible.

Our special educational needs solicitors can help you with making an application for an EHC needs assessment.



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