Under the reform introduced by the Children and Families Act 2014 (CFA 2014), statements of special educational needs (SEN) are gradually being replaced with Education, Health and Care (EHC) plans for children and young people with the most complex special educational needs and disabilities.
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Unlike statements, EHC plans are available for children and young people from the ages of 0–25, where required.
CFA 2014, s 36(2) defines an EHC assessment as follows:
‘An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person.’
This provision, along with the other sections of CFA 2014 which address EHC assessments, are heavily supplemented by the SEN Code of Practice 2015 (COP); in particular Chapter 9, which concerns EHC needs assessments. The COP makes clear that, like statements of SEN before them, EHC plans are to be made for those with more significant SEN, whose needs cannot be met from within the resources usually available to mainstream schools. Therefore, not every child with SEN will require an EHC needs assessment.
Local authorities should ensure that parents and education providers in their area are made aware, through the Local Offer service, of the full range of support services in their area for children and young people with SEN.
A Local Offer is the directory of provision and support services in the local area: a requirement introduced by CFA 2014.
Where the Local Offer service functions well, it should signpost parents of children with SEN to all available support services, so that parents are making use of all relevant services available without an EHC plan, prior to requesting an EHC assessment.
Although the statutory test for whether an EHC assessment is necessary differs from that for statements under the Education Act 1996 (EA 1996), the practical effect of both pieces of legislation is overwhelmingly similar: the focus is on the child’s possible need for an EHC plan and practical availability of appropriate support in the absence of a plan.
This checklist outlines the circumstances when a local authority must carry out an EHC needs assessment.
What is the statutory test?
When asked to carry out an EHC needs assessment, the relevant test is set out at CFA 2014, s36(3):
‘When a request is made to a local authority under subsection (1), or a local authority otherwise becomes responsible for a child or young person, the authority must determine whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.’
The focus is on whether it ‘may be necessary for special educational provision to be made’ in accordance with an EHC plan. The reference to ‘may’ connotes the fact that an EHC assessment itself would determine whether an EHC plan should be made for the child/young person.
As set out by Judge Jacobs (Cambridgeshire CC v FL-J  UKUT 225 (AAC) at para ):
‘To put it loosely and without intending to rewrite or gloss the language of the legislation, the issue at the initial stage is a provisional and predictive one; it is only when an assessment has been made that a definitive decision has to be made.’
Only once an assessment has been carried out, does a local authority have to determine whether it actually is necessary to provide special educational provision in accordance with an EHC plan.
Does the child have, or may the child have, a learning difficulty?
When considering a request to carry out an EHC assessment, a local authority must first consider whether the child/young person has a learning difficulty. Section 20(1) provides that:
‘A 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.’
Special educational provision means ‘educational or training provision that is additional to, or different from, that made generally for others of the same age’ in mainstream schools, early years settings, nurseries, schools and post-16 institutions.
Is special educational provision required, or might it be required?
The question of whether ‘special educational provision’ is, or may be, required, is to be assessed with refer-ence to what would usually be provided for children of the same age in mainstream education settings. This includes early years providers, nurseries, schools and post-16 institutions. This is the case, regardless of whether the child is currently attending an educational setting and regardless of the type of setting.
This section of the legislation must be read in conjunction with COP, which requires a ‘graduated response’ to meeting the needs of children with SEN. Only those with the most significant needs should require EHC plans. This is addressed in more detail, below.
Is the difficulty a ‘learning’ difficulty?
The COP identifies four broad areas of need:
• communication and interaction
• cognition and learning
• sensory and/or physical needs and
• social, emotional and mental health needs
These are unchanged from the EA 1996 and the 1996 Code of Practice. These subcategories are routinely used in EHC plans, to describe different areas of a particular child’s needs.
The relevant need must, though, impact on the child’s ability to learn.
A child does not require an EHC assessment just because, for example, he/she has a serious medical condition, or speaks English as an additional language.
If the SEN are such that the child is failing to make ‘adequate progress’ despite ‘relevant and purposeful’ action having been taken to identify, assess and meet those needs, then an EHC assessment will be necessary.
Equally, it may be the case that the child actually requires a different type of assessment, eg a social care assessment leading to a child in need plan or child protection proceedings. The fact that a child’s behaviour is outside parental control, or a child’s medical needs are too significant for parents to manage without further support, does not mean that an EHC assessment is necessarily required.
Determining the ‘threshold’ for carrying out an EHC assessment
COP, para 9.14 sets out the types of evidence a local authority will wish to consider (emphasis added):
‘In considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress.
To inform their decision the local authority will need to take into account a wide range of evidence, and should pay 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; and
• 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. Remaining in formal education or training should help young people to achieve education and training outcomes, building on what they have learned before and preparing them for adult life.’
Local authorities often have their own application/referral forms for parents and schools to complete, which purport to set out additional or different criteria from the test at CFA 2014, s 36(3) and the guidance at COP, para 9.14. It is important for local authorities not to lose sight of the fact that the statutory test for whether an EHC assessment is necessary, is a simple one. The bar is set relatively low—might the child need an EHC plan in order to secure the right provision? If so, an EHC assessment should be undertaken.
Arbitrary refusal to assess based on the fact that a child does not have a particular diagnosis, or is not currently being supported at a particular ‘banding’ or ‘level’, are unlawful and would likely be overturned by the First-Tier Tribunal if the child’s parents appealed the refusal to assess.
It may be helpful for local authorities to have in place policies or procedures around requests for EHC as-sessment requests. However, these must not contradict the statutory test or be followed slavishly where to do so would produce a result contrary to the spirit of the legislation or the statutory guidance in COP.
Has there been relevant and purposeful intervention to address the child’s SEN? Despite this, is it the case that the child is not making adequate progress?
The COP makes clear that there must be a ‘graduated response’ to meeting the needs of a child with SEN. The majority of children with SEN have their needs met from within the resources available to their school, as part of the notional SEN budget of approximately £6,000 per child. Early interventions provided by schools and other education settings must follow the ‘Assess, Plan, Do, Review’ model.
There will be some children, with profound needs, for whom an EHC plan would almost always be necessary, such that extensive evidence of ‘early interventions’ by the child’s education setting will not be necessary. However, for the majority of children and young people, a request to assess would be unlikely to succeed if the child’s education setting could not demonstrate that it had already put in place some degree of special educational provision, but that this had not succeeded in enabling the child to make adequate progress.
Adequacy of progress for school-age children will fall to be assessed using national school attainment and progress measures. For very young children, their progress through the Early Years Foundation Stage cur-riculum is relevant. For young people over 16, COP, para 9.14 is of less assistance, as the comparators can be more difficult to identify.
What triggers the obligation/who can make the request?
Under CFA 2014, s 36(1), a request for assessment may be made by:
• a child's parent
• a young person on his/her own behalf
• a person acting on behalf of the child/young person’s school or other educational setting
Formal requests for assessment may not be made by other professionals, such as a child’s general practitioner, social worker or health visitor, although evidence from such professionals frequently forms part of the evidence provided with a request to assess.
A local authority must also carry out assessment where, under CFA 2014, s 36(3), it ‘otherwise becomes responsible for a child or young person’. CFA 2014, s 24 refers to a local authority being responsible for a child who has or may have SEN, when the child has been identified by the local authority (perhaps through its Portage service or via colleagues providing services as part of the Local Offer) or where a child has been brought to the local authority’s attention by ‘any’ person. This is broad enough to encompass a situation where a local authority SEN department is notified by another professional that a child may have needs which require an EHC plan, or if the child has recently arrived in the area and has such needs.
Where a child has very significant needs, it may be necessary for the child to be placed in a special school for the purpose of carrying out an EHC assessment, in accordance with CFA 2014, s 34(5). This most commonly occurs when a child with very significant needs arrives in the UK from another country, or moves into a new local authority area at short notice.
Does the child live in the area?
Under CFA 2014, s 24, a local authority is responsible for a child ‘if he or she is in the authority’s area’. This connotes a residence requirement. The fact that a child attends a school maintained by Local Authority A, does not mean that Local Authority A should receive a request for EHC assessment, if the child lives in the area of Local Authority B.
CFA 2014, s 24 contains no requirement that the child be resident in a local authority area on a permanent, or long-term basis. Therefore, requests to assess children whose immigration status or housing situation are in doubt, or who are part of a travelling community, must be considered in the same way as any other.
What is the time limit for making a decision?
A decision must be made within six weeks of receiving a request for assessment. See: COP, para 9.17.
If refusing to assess
CFA 2014, s 36(5) imposes a duty upon local authorities to give reasons, if refusing a request to carry out an EHC assessment for that refusal. Standard form letters are not acceptable here, rather, the response must set out detailed reasons, specific to the child in question.
Where there has been insufficient action taken by a child’s school or other education setting, as part of the ‘graduated response’, it is good practice to identify which further steps a school should take, wherever this is possible.
A child’s parent (or a young person acting on their own behalf) may appeal to the First-Tier Tribunal against a refusal by a local authority, to carry out an EHC needs assessment.
Children who already have statements of SEN or already have EHC plans
For children and young people who received a statement of SEN under the pre-2014 system, their statements remain in force during the transition period, which ended on 1 April 2018.
Local authorities must carry out ‘transfer reviews’ for all children and young people with existing statements. Guidance issued by the Department for Education provides that:
‘By 1 April 2018, all statements of SEN must have been reviewed with a view to being replaced with EHC plans. In advance of that date, local authorities must ensure that children and young people who currently receive support as a result of a statement of SEN are transferred to the new system in accordance with the Transfer Review process.’
As part of a Transfer Review, a local authority must carry out an EHC needs assessment of the child or young person. It is not sufficient and is unlawful for the existing contents of a statement of SEN to be ‘copied and pasted’ into an EHC plan
EHC plans must be reviewed annually, in an Annual Review process, in the same way as was the case for statements of SEN. Under CFA 2014, s 44, parents, young people and education providers may request a ‘reassessment’ of the child’s needs, or a local authority may carry out a re-assessment of its own volition. This is most often necessary where a particular development means that the child’s needs have changed significantly, or where it has been several years since the original EHC assessment was carried out.
Special considerations for older children and young people
Requests for EHC assessment of older children and young people must be considered with particular regard to the relevant sections of COP, which address the particular considerations which apply to this age group:
• COP, para 9.14—‘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. Remaining in formal education or training should help young people to achieve education and training outcomes, building on what they have learned before and preparing them for adult life’
• COP, para 9.15—‘a young person who was well supported through the Local Offer while at school may move to a further education (FE) college where the same range or level of support is not available. An EHC plan may then be needed to ensure that support is provided and co-ordinated effectively in the new environment. It may also be the case that young people ac-quire SEN through illness or accident, or have an existing condition that requires increasing support as they get older’
• COP, Ch 7, which sets out the duties on Further Education providers
• COP, Ch 8, ‘Preparing for adulthood from the earliest years’
Special considerations for very young children
While EHC plans—and therefore EHC assessments—are in theory available from birth onwards, in practice it will usually take time for parents and professionals to identify SEN in very young children. Often, health professionals such as Health Visitors are key in identifying likely SEN in very young children.
COP, Ch 5 covers SEN in the early years and sets out the duties on early years education providers and health professionals in these circumstances. This chapter makes clear that a delay in learning or development, in a child’s very early years, does not necessarily mean that the child has SEN.
Key progress checks, such as the two-year old review and the Early Years Foundation Stage review at age five, will often be key to establishing whether a request for EHC assessment is necessary. For children age three and over who attend an early years setting, the extent to which the setting has provided additional support as part of the ‘graduated response’, will be assessed in the same way as for a child of school age at a school.
This article was written by Lexis PSL Local Government in partnership with Hannah Lynch of St Pauls Chambers.
This article is available within LexisPSL Public Law. To access further education content, why not take out a free trial?