January 2022

We are aware of local authorities streamlining their EHC needs assessment processes using a variety of methods, including digital platforms and specific forms. Whilst this is not inherently problematic, it is important that parents, carers and young people are aware that there is no particular form, format or method that is required in order to make a valid EHC needs assessment request in law. A request cannot be rejected on the basis that a prescribed method has not been used, nor can a local authority insist that the parent, carer or young person speak with either the relevant educational setting or other services before making a request.

When considering a request, the local authority must apply the legal test set out at section 36(8) of the Children and Families Act 2014. They must conduct an assessment where:

• the child or young person has or may have SEN; and
• they may need special educational provision to be made through an EHC plan.

For this reason, forms which limit the information that is to be included within the request can prove problematic if they inhibit the local authority from gathering the necessary information in order to determine the s. 36(8) test.  Conversely, forms which suggest that requests will not be considered unless certain information or evidence is supplied (e.g. a costed provision map, or evidence of a certain number of terms’ worth of SEN Support) would also be unlawful. The local authority is additionally under a duty to consult with the parent, carer or young person (s. 36(4) CAFA and SEN Reg 3) before making a decision, but in practice if this is limited, this can also lead to unlawful refusals to assess.

Please see our page on asking for an EHC needs assessment for advice on how to make a request and what to include, including a link to our model letter that can be used as a template for making a request. As you will see, it is advisable to seek the cooperation of the relevant educational setting where possible and to make the request in writing, but these are not legal requirements.

If you are appealing against a refusal to carry out an EHC needs assessment, you may find our refusal to assess pack helpful.