We had always wanted our son to go to the local primary school, but his draft EHC plan doesn’t include some important things the educational psychologist (EP) said to us during his EHC needs assessment…

Your question raises two important issues: 

1. The advice your LA must get during an education, health and care (EHC) needs assessment, and  

2.  Your child’s right to a mainstream education  

The advice your LA must get during an EHC needs assessment 

When your local authority (LA) agrees to carry out an EHC needs assessment, the law requires it to seek information and advice from a specified list of professionals. One of the professionals your LA must get advice from is an educational psychologist (EP). The advice and information provided must cover:  

• what special educational needs have been identified  

• the special educational provision required, and   

• what outcomes are intended to be achieved by the provision being in place.   

This is set out in Regulation 6 (1) of the Special Educational Needs and Disability Regulations 2014. 

Sometimes, professionals think they are not allowed to comment on provision. This is incorrect and does not follow the law or the statutory guidance. Paragraph 9.51 of the SEND Code of Practice 2015 (the Code) says professionals may comment on the amount of provision they consider a child or young person requires and LAs should not have blanket policies which prevent them from doing so. You can find more information about this, and a link to professional guidance for EPs providing advice during EHC needs assessments, on our page about what happens in an EHC needs assessment.  

Now that you have the draft EHC plan, you have the right to make written representations (let your LA know your views) about the contents of the EHC plan and/or ask for a meeting with your LA officer to discuss it. Your LA must give you at least 15 days to make any representations and/or request a meeting, and it must meet with you if you request a meeting. You can find more information on our page about what to do when you receive the draft EHC plan.  

When giving your LA your views, whether in writing or at a meeting, we would recommend you remind your LA that the law says that advice provided during EHC needs assessments must include the professional’s opinion on ‘the provision which may be required.’ The EP’s advice says nothing about the amount of help your son needs, which means your LA has not fulfilled its legal duty to get advice on needs, provision and outcomes.  

You should ask your LA to go back to the EP and ask them to provide advice and information in accordance with Regulation 6(1) of The SEND Regulations 2014, so that the EP’s advice contains their full opinion. Your LA will then have to take account of this when it makes its decision about the amount of provision to be specified in Section F of the EHC plan.   

You can find out more on our page about complaining when the LA does not get the correct advice during an EHC needs assessment.   

Your child’s right to a mainstream education  

The law says children and young people with EHC plans must be educated in a mainstream setting unless that would be incompatible with:  

• the parent or young person’s wishes (they may have requested a special school instead), or  

• the provision of efficient education for others and there are no reasonable steps which can be taken to prevent this.  

This is set out in section 33 of the Children and Families Act (CFA) 2014.  

This section of CFA 2014 does not contain a ‘suitability clause’, which means your LA cannot simply say mainstream education is ‘not suitable’ for your son.