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 a Statutory Assessment

When a child is struggling to access learning and/or is not making expected progress, the school should be providing support. This is normally recorded using an Individual Education Plan.

If the support that the school provides is insufficient, then it may be necessary to seek a Statutory Assessment of your child’s special educational needs. This is conducted by the local authority to determine what special educational provision your child requires to achieve progress.

The legal criterion is found in section 323 of the Education Act 1996. This sets out that the local authority should carry out a Statutory Assessment when it is “probably necessary” for a local authority to determine the specialist provision that a child’s special educational needs require.

In determining whether this determination is “probably necessary”, a local authority should consider the nature of your child’s special educational needs, the provision they receive at school and any extra provision parents have commissioned. 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 considered on its own facts.  However, generally, it becomes clear that a child is not making progress despite the school putting support into place, then the local authority should make a statutory assessment of the child’s special educational needs. 

When making a request for a Statutory Assessment it is important to ensure that your request applies the law correctly. When you are preparing for a Statutory Assessment, think ‘detail’. Never approach the statement of educational needs process with a broad view.

Start by considering your child’s daily needs as well as their more complex needs. Whatever they are going to need help with in the course of their education, include this in your request for an assessment.

Ensure your request is accompanied by details of existing Individual Education Plans (IEPs) together with any reports or statements you have from medical, psychological or teaching professionals. Be clear on how what your child is achieving compares to what his or teachers believe they should be achieving, and include this in your request.

You will need to build a strong case, and it may be that you need help in doing so. Never try to tackle the process alone. If you are able to gather professional evidence that your child has particularly complex needs that can only be addressed by attending a particular school for example, then it could significantly bolster your case. If you can afford it, an independent assessment could prove a worthwhile investment.

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 a Statutory 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 Statutory Assessment.

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

If you are applying for a statutory assessment, or want advice about how to apply, our specialist education law solicitors are here to help.



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