Support for SEND

When the local authority decides not to agree to an Education, Health and Care Needs (EHC) assessment, this is often called a 'refusal to assess'.   If you have received a refusal to assess decision, you may feel unhappy about it. You may want to know how to challenge it. To do so, it is important to know how the local authority must make its decision.

The local authority's decision must be based on a 'legal test'.

The 'legal test' for an EHC needs assessment is as follows.

The Children and Families Act 2014 (Section 36) (8), 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 subsection (7), the authority is of the opinion that,

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan

There is guidance in the SEND Code of Practice section 9.14 which helps the local authority to make their decision. This is guidance though, so advisory, not compulsory  - it is not the legal test. Some of the guidance is about the evidence the local authority could look at:

• Is there evidence (usually paperwork) to show that the education provider has taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person?
• If the evidence shows that this action has been taken, does it also show that the child or young person has not made expected progress?

To inform their decision the local authority should have taken into account a wide range of evidence, with particular attention to:

• Evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress
• Information about the nature, extent and context of the child or young person’s SEN
• Evidence of the action already being taken by the early years provider, school or post-16 institution to meet the child or young person’s SEN
• Evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided
• Evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies
• Where a young person is aged over 18, the local authority must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete their education or training

The decision letter must refer to the 'legal test' and may also refer to the evidence the local authority has used to make its decision.

• parents/carers
• a young person over the age of 16 but under the age of 25
• the early years setting, school, or further education setting, but only after talking with you first

It is always a good idea to talk to the early years setting or school before asking for an EHC needs assessment. Buckinghamshire SENDIAS Service can help you make your request.

Other people, such as your doctor or a health visitor, can tell the local authority that they think your child needs an assessment.

As soon as the local authority gets a request for an EHC needs assessment they must tell you about it. The SEND Code of Practice says:

In considering whether an EHC needs assessment is necessary, local authorities should pay particular attention to the views, wishes and feelings of the child and his or her parent, or the young person. (9.12)

The test that the LA must apply in considering this request is contained in section 36 (8) of the Children and Families Act 2014 and has two parts:

• Part one of the test is that the child or young person has or may have special educational needs
• Part two of the test is that it may be necessary for special educational provision to be made for the child/young person through the issuing of an EHC plan.
• The local authority has up to six weeks to decide whether to carry out a needs assessment. During this time it may ask you, the school and other professionals for information. It will look at all the information and must then tell you whether it has decided:
  • to start the EHC needs assessment immediately or
  • that an EHC needs assessment is not necessary

The local authority must tell you why it thinks that an EHC needs assessment is not needed. It must also tell you about:

• your right of appeal to the Special Educational Needs and Disability Tribunal and the time limit for appealing
• independent disagreement resolution and mediation
• how to get further information, advice or support

If agreed, an EHC needs assessment will find out more about the child or young person’s special educational needs and may lead to an EHC plan.  The request for an EHC needs assessment is more likely to be agreed if the child or young person is receiving all that they can under SEN Support.

The SEND Code of Practice says:

Local authorities must consult the child and the child’s parent or the young person throughout the process of assessment and production of an EHC plan. They should also involve the child as far as possible in this process. The needs of the individual child and young person should sit at the heart of the assessment and planning process. (9.21)

The local authority will write to you to tell you what will happen and ask for your views. Your views and your child’s views are really important.

The local authority will ask a number of other people for information about your child. This is called ‘advice’ and it should include information about:

• your child’s education, health and care needs
• the desired outcomes for your child
• the special educational, health and care provision that might be required to meet their needs and achieve the desired outcomes

The local authority must ask for advice and information from:

• parents/carers (or the young person)
• your child’s early years setting or school
• an educational psychologist
• health professionals who work with your child. This might include a paediatrician, speech and language therapist, physiotherapist or occupational therapist
• social care staff
• anyone else you ask them to contact who may be able to give relevant advice

If your child has a vision or hearing impairment the local authority must also seek information and advice from a suitably qualified teacher.

The local authority should also find out your child’s views. You, the school and other professionals may be able to help with this. You will have the chance to discuss your child with everyone involved in the needs assessment and you will receive a copy of all the reports when the needs assessment is finished.

You can find out more about advice and information for EHC needs assessments in the SEND Code of Practice sections 9.45 – 9.52.

Sometimes advice and information is already available because other professionals have been working with your child. The SEND Code of Practice says:

The local authority must not seek further advice if such advice has already been provided (for any purpose) and the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process. In making this decision, the local authority and the person providing the advice should ensure the advice remains current. (9.47)

Once the local authority has all the information and advice it must decide whether to issue an Education, Health and Care plan for your child.

An EHC plan is a legal document written by the local authority. It describes the special educational needs that a child or young person has and the help that they will be given to meet them. It also includes the health and care provision that is needed. You can read more about EHC plans within the EHC plans section below.

• The legal test for issuing an EHC plan is around whether an EHC plan is 'necessary'
• The Children and Families Act 2014, section 36(10) says: (1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan

(a) the local authority must secure that an EHC plan is prepared for the child or young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.

For young people over 18, the LA must also consider whether they require additional time, in comparison to the majority of their peers who do not have special educational needs to complete their education or training.

Sometimes the local authority will decide that your child has special educational needs that can be met through SEN support. If this is the case the local authority must tell you of its decision not to issue an EHC plan within 16 weeks of receiving a request for a needs assessment.

The local authority must also tell you about your right of appeal.

If the local authority decides an EHC plan is necessary it must first write a draft plan. It will send you the draft EHC plan and copies of the reports so that you can read it all. You should check that everything you think is important has been included and that you agree with the outcomes and the proposed provision.

The local authority will also ask you which school you would prefer your child to go to, no school will be named in a draft plan. You have 15 days to make comments, to ask for a meeting or accept the draft plan. Note that if you do not reply within 15 days the local authority may assume that you agree with the draft plan.

The last stage is for the local authority to send you the final EHC plan. If you are still unhappy with the plan or cannot agree with the local authority on a school, you have a right to appeal.

You can also view a diagram of the EHC needs assessment timeline (PDF, 170 KB).

Sometimes this timescale can be different. See SEND Code of Practice section 9.42.

You can read about Education, Health and Care needs assessments in the SEND Code of Practice Chapter 9.

For full details, watch our webinar, funded by FACT Bucks, the parent carer forum: Bucks SENDIAS Service/FACT Bucks EHC needs assessment webinar July 2021

You don’t need to use a special form or template letter to make a request. A form or template can be useful though to make sure you include all the relevant information. Our version is attached - EHC needs assessment letter P - request made by parent for child and when young person lacks mental capacity.

We suggest you and/or your young person have a school or college meeting to discuss their current level of support before making a request. The request for an EHC needs assessment is more likely to be agreed if the young person is receiving all that they can under ‘SEN Support’. There is more information about this in the section called ‘What is SEN Support in further education?’

For young people aged 19-24 in education (or wanting to be) who need help for their special educational needs:

• Unless an EHC plan is issued, colleges will charge usual tuition fees
• An EHC plan is more likely to be issued if the young person requires more time, in comparison to others of the same age who don’t have SEND, to complete his or her education or training

The procedure to make a request differs depending on the young person’s level of understanding:

I think my young person will understand what this request is for if they are given information about it and I try to explain it in a way which will suit them.

Once a young person is over compulsory school age (after the last Friday in June in the academic year in which  they turn 16), they take over the right from their parent to make a  request for an EHC needs assessment – provided they have the mental capacity to make this decision They can still choose for you or someone else to help them to make the request. Evidence that your young person agrees to the request should be sent with the request if you or someone else help to make it for them.

You don’t need to use a special form or template letter to make a request. A form or template can be useful though to make sure you include all the relevant information. Our version is attached - EHC assessment letter YP -request made by young person 16-24.

I think my young person will not understand what this request is for even if they are given information about it and I try to explain it in a way which will suit them.

If the young person does not have the mental capacity to decide to make an EHC needs assessment, the request can be made by an Alternative Person acting in the best interest of the young person. This will be any Deputy appointed by the Court of Protection. If there is no Deputy, then usually a young person’s parents can make the request.

Their school or college also has the right to make the request.

Alternatively, any person can bring a child or young person to the attention of the local authority as having or possibly having special educational needs, and this can trigger an EHC needs assessment. Usually this will be a social worker or paediatrician

You don’t need to use a special form or template letter to make a request. A form or template can be useful though to make sure you include all the relevant information. Our version is EHC needs assessment request letter P.