Question 1

My LA is carrying out an EHC needs assessment for my child in year 6. I’ve heard that EHC plans for year 6 must be reviewed and amended by 15 February. Will the LA review and amend it straight away? What if it isn’t issued until after 15 February?

Accepted Answer

Local authorities (LAs) have a legal duty to review and amend an education, health and care (EHC) plan before a child or young person transfers from one phase of education to another, following a legal process.

For a transfer from primary to secondary school, the annual review must be completed and, where necessary, EHC plan updated, by 15 February in the year of transfer.

For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer.

These are long stop deadlines, and the duty to review (and where necessary amend) EHC plans, are set out in Regulation 18 of The Special Educational Needs and Disability Regulations 2014 They are strict legal deadlines and do not contain any exceptions.

However, the situation can be tricky if the first EHC plan is due to be (or has been issued) close to these deadlines.

Here we explain what the LA must do, and what you should do when you receive the draft EHC plan:

If	Then
an LA issues a first EHC plan in a child's last year before a phase transfer well before the February 15/ March 31deadline, and it has only named a setting (or type) for the remainder of the current academic year	regulation 18 will apply. The LA will be required to review (and if necessary amend) the newly issued EHC plan by the relevant legal deadline to name the setting, or type of setting, the child or young person will attend from the following September. You can take action if your LA has missed, or is likely to miss, the deadline.
If	Then
an LA is due to issue a first EHC plan in a child's last year before a phase transfer too close to the February 15/March 31 deadline to be able to lawfully review and amend the plan by the deadline	Parents and young people should make requests for a particular setting for both the current and next academic year when they receive the draft EHC plan. The LA must name the: current setting, or the setting (or type) it is intended they attend until the end of the academic year, and the name, or type, of setting the child or young person will attend from the following September when it issues the final EHC plan. If it does not name the setting (or type) for the next academic year in the new education phase, you can appeal (and mediate) this. You should ask the SEND Tribunal to prioritise this appeal as an appeal involving Section I for a child or young person due to move to a new phase of education.
If	Then
an LA is due to issue a first EHC plan in a child's last year before a phase transfer after the February 15/ March 31 deadline	regulation 18 won't apply as the deadlines referred to in that regulation will have passed by the time the plan is issued. When making their placement requests, parents and young people in this situation should ask their LA to name: the current setting, or the setting (or type) they want the child or young person to attend until the end of the academic year), and the setting they want the child or young person to attend from September in the issued EHC plan. If it does not name the setting (or type) for the next academic year in the new education phase, you can appeal (and mediate) this. You should ask the SEND Tribunal to prioritise this appeal as an appeal involving Section I for a child or young person due to move to a new phase of education.

Question 2

Can school stop my 13-year-old from attending equine therapy once a week, even though the LA agreed to it, because it's an unregistered alternative provision?  My child doesn't have an EHC plan and is in the process of having an EHC needs assessment.

Accepted Answer

The statutory guidance Working together to improve school attendance (applicable from 19 August 2024) confirms (at paragraph 65) that in some circumstances a pupil’s education may be provided partially at school and partially somewhere else.

It confirms that schools have responsibilities for the safeguarding and welfare of pupils attending an approved educational activity outside of school. However, “unregistered alternative provision arranged by the school” is an example of an approved educational activity in the guidance (paragraph 311). A school is permitted to arrange this if it is satisfied that “the activity is supervised by a person considered by the school to have the appropriate skills, training, experience and knowledge to ensure that the activity takes place safely and fulfils the educational purpose for which the pupil’s attendance has been approved.” (paragraph 310). There’s a specific code (code B) that the school has to use to record a child’s attendance in these circumstances (regulation 10(3) and 10(11) of The School Attendance (Pupil Registration) (England) Regulations 2024).

However, if the local authority (LA) has agreed to arrange this provision, rather than the school, the LA may be doing so because of its duty under section 19 of the Education Act 1996. This duty means LAs must secure suitable, full-time education for children of compulsory school age who would not otherwise receive it. LAs can fulfil this duty by providing education outside of school on the days a child will not be at school. As this is the LA’s duty, it’s the LA (not school’s) decision whether your child can have equine therapy.

The School Attendance (Pupil Registration) (England) Regulations 2024 has introduced a new attendance code for recording attendance at education provision arranged by the LA. Regulation 10(3) requires the school to use code K if a pupil is attending a place arranged by a local authority under its duty to secure:

suitable, full-time alternative education for children of compulsory school age who would not otherwise receive it due to illness, exclusion or another reason (section 19 of the Education Act 1996)
the special educational provision in section F of an EHC plan (section 42(2) of the Children and Families Act (CFA) 2014), or
any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution (section 61 of the CFA 2014).

Therefore, if the LA arranges your child’s equine therapy because it has a duty to, the school can’t stop it and must record that your child is attending provision arranged by the LA in the register using code K.

If equine therapy is required to meet your child’s special educational needs, it will count as special educational provision. During the EHC needs assessment, you can make the case that it is not something mainstream schools provide from within their own resources and an EHC plan is necessary for your child to be able to access it long term.

If the LA agrees to issue your child with an EHC plan and equine therapy is required to meet her needs, make sure it is described specifically in section F. Please see our information on what an EHC plan contains and what to do when you receive a draft EHC plan for more information.

Question 3

We want occupational therapy moved into Section F of our son’s education, health and care plan...

Accepted Answer

...Section B lists fine motor skills and sensory difficulties as some of his special educational needs, but occupational therapy is written in section G as ‘health care provision’. We do not believe this is right but what else can we do? We had a meeting with the LA when the EHC plan was at the draft stage but it said it is a service provided by the NHS and it is out of the LA's hands.

You are right in thinking that the occupational therapy is likely to be special educational provision therefore should be specified in section F of your son’s education, health and care (EHC) plan. What supports your argument is that your local authority(LA) has described your son’s difficulties with fine motor skills and his sensory difficulties in section B as special educational needs (SEN). This means provision must be specified in section F (not just section G), because the law says section F of an EHC plan must contain provision to meet each and every SEN identified in section B.

The law is clear that any health or social care provision which educates or trains a child or young person must be treated as special educational provision instead of health or social care provision. This is set out in section 21(5) of the Children and Families Act 2014. What matters here is what the provision does for your child, not who provides it. If this occupational therapy is being given to ‘educate or train’ your child to improve his fine motor skills and sensory processing, it must be treated as special educational provision and be specified in section F, even if it is being provided through the NHS.

See our pages on what an EHC plan should contain for more information. You can also use our EHC plan checklist to check whether your draft EHC plan complies with how the law says it must be set out.

It is common for LAs to be reluctant to specify provision which comes from a health or social care service in section F of the EHC plan, because it means they are legally responsible for securing the provision, even if health or social care can’t or won’t do so.

If this matter is not resolved once the EHC plan is finalised, you will need to appeal to the SEND Tribunal. The deadline for appealing is two months from the date of the final plan or one month from the date of the mediation certificate, whichever date falls the latest. You should also consider appealing section B of the EHC plan after checking it to make sure all of your son’s SEN are properly specified. You can find more information on our pages about appealing to the SEND Tribunal.

Question 4

The EHC plan has been finalised and we still disagree with the description of our son's needs in section B and the lack of appropriate provision in section F of the final EHC plan...

Accepted Answer

...The provision in section F is really vague and there is an appendix to the EHC plan titled ‘steps to achieving outcomes’ which lists all the special educational provision.

Some local authorities (LAs) create additional sections to education, health and care (EHC) plans despite the law being clear that the statutory sections are A to K. While it is not strictly unlawful for LAs to add additional sections, it can be confusing and misleading. It is, however, unlawful for your LA to specify special educational provision anywhere other than section F of the EHC plan. 

The EHC plan must contain all of the sections required in law. Any additional sections the LA adds will not have any legal effect, so it is important to ensure all of the special educational provision your son needs is properly specified in section F and is not left to be determined in a section which has no legal status. You will not be able to force the LA to secure the special educational provision unless it is specified in section F. The law says section B of the EHC plan must specify all of your child’s special educational needs (SEN) and section F must specify all of the required special educational provision to meet those SEN. 

Our pages on what an EHC plan should contain have more helpful information. You can also use our EHC plan checklist to check whether your draft EHC plan complies with how the law says it should be set out. 

To make changes to your final EHC plan, you will need to appeal to the SEND Tribunal. It is important that you do not miss your deadline for appealing, which is 2 months from the date of the final EHC plan or 1 month from the date of the mediation certificate, whichever date is the latest. You can find lots of helpful information on our pages about appealing to the SEND Tribunal.

Getting the EHC plan right now will be crucial to making sure that your child receives the special educational provision they need in the future. It will be difficult for the LA to justify, and defend, specifying provision in a non-statutory section of the EHC plan and refusing to specify it in section F.

Question 5

The LA agreed to do an EHC needs assessment but now it's complete we’ve been told the LA is going to make a ‘My Plan’ for our daughter. This looks like an EHC plan but the information accompanying it says it is ‘non-statutory’. What does this mean?

Accepted Answer

Does our daughter have an EHC plan?

When your local authority (LA) completes the EHC needs assessment it must decide whether to make and maintain an EHC plan. If the decision is not to make an EHC plan they must notify you of this, and of your right to appeal this decision to the SEND Tribunal.

Some LAs send this notification with a document which looks like an EHC plan, but isn’t. Sometimes the LA’s notification letter won’t make it clear that it is not an EHC plan, or that a decision has been made not to issue an EHC plan, or that you have a right of appeal. This can be very confusing, and does not follow what the law says about what information LA decision letters must contain.

A ‘non-statutory’ plan might be called something like a ‘My Plan’, a ‘[name of LA] Plan’, a ‘Pupil Resource Agreement’ or an ‘SEN Support Agreement’. It might even be laid out in a similar way to an EHC plan, with sections A to K. Your LA might suggest to you that this document is ‘as good as’ an EHC plan because it attracts the same level of resources as an EHC plan would, or because it’s quicker to access extra resources through this type of arrangement. Your LA might suggest that this is a stepping stone to an EHC plan that has to be tried first (this is not true).

However, it is very important to know these are called ‘non-statutory’ documents because they carry no legal entitlements or duties. This means they do not have to be followed by anyone involved with your child.

EHC plans carry important legal rights and duties under the Children and Families Act 2014. These include rights to:

specified provision which must be delivered and cannot be withdrawn unless the EHC plan is formally amended

choose which school or college your child goes to (subject to certain conditions)

have an annual review, and

appeal to the SEND Tribunal in the event of certain disagreements.

None of these legal rights apply if you have a non-statutory document, such as a My Plan, instead of an EHC plan.

If you’re not sure, ask your LA to clarify in writing whether the document it has sent you is a formal, legally binding EHC plan, or something else.

If the LA has issued you with a non-statutory plan, this means it has made a decision not to issue an EHC plan. It will be important to consider appealing against this decision. The deadline to appeal is two months from the date on your LA’s decision letter or one month from the date of your mediation certificate, whichever date falls later.

When might a ‘non-statutory plan’ be useful?

Non-statutory plans are simply a way to deliver SEN support. You can find out more about SEN support on our pages about how your nursery, school or college should help, and in the Special Educational Needs and Disability Code of Practice 2015 (in chapter five for early years settings, chapter six for schools and chapter 7 for further education settings).

If during the EHC needs assessment, your LA got all of the information and advice the law says it must and has lawfully decided that your child does not need to have special educational provision made for them through an EHC plan, then a non-statutory plan might be a useful way of documenting what was found during your child’s EHC needs assessment. Although non-statutory plans are not legally binding, they may be helpful in making sure that the school or college has a clear understanding of what resources your child needs and what should be done with them.

If you believe that your child does require an EHC plan and you decide to appeal to the SEND Tribunal, the non-statutory plan setting out her needs and provision requirements could actually be helpful to use as part of your appeal, if it helps to indicate that she has needs which require more provision than can be provided out of the school’s own resources.

Question 6

We have the draft EHC plan, and there is a therapy we would like to have included in section F. Can a particular therapy be included in an EHC plan if it is not available from the local health service?

Accepted Answer

The answer to this question will firstly depend on whether the therapy should be treated as a special educational provision.

Section 21(5) of the Children and Families Act 2014 says that “health care or social care provision which educates or trains a child or young person is to be treated as special education provision (instead of health care provision or social care provision)”. This means that if the provision educates or trains your child (so teaches them to do something rather than doing something for them), then it must be treated as special educational provision and specified in section F of your child’s EHC plan. It would then be your local authority (LA) (rather than the health service) who must provide the therapy.

It is very important to check the related special educational need (SEN) is contained in section B of the EHC plan. This is because the law says that if a child’s SEN are identified in Section B of the EHC plan, special educational provision to meet these needs has to be specified in Section F. Paragraph 9.69 of the SEN and Disability Code of Practice 2015 states, “Provision must be specified [in section F] for each and every need specified in section B”. If all of your child’s SEN do not appear in section B, you should raise this with your LA.

If the therapy is special educational provision, then the only relevant issue is whether your child requires this therapy in order to meet their individual needs, not whether it is available locally.

If the local health service cannot provide a particular therapy that your child requires, the LA will have to secure that provision from elsewhere, such as from a private therapist.

If the therapy is a health provision and not a special educational provision, then the correct section of the EHC plan for it to be specified would be section G. This would mean that the health service has a legal duty to secure the provision, rather than the LA.

You can find more information on our page about what an EHC plan contains. Case law has confirmed when therapies should be classed as special educational provision and included in section F of an EHC plan.

Question 7

Section F of the draft EHC plan does not detail any of the special educational provision our son needs. There is only a paragraph to say the school will decide how much provision he needs and when. Is this lawful?

Accepted Answer

Section 37(2)(c) of the Children and Families Act (CFA) 2014 says your LA must specify the special educational provision in your child’s educational, health and care (EHC) plan. Section F of your son’s EHC plan must contain special educational provision to match each and every one of his special educational needs (SEN) which are identified in Section B.

Case law has confirmed how specific wording in EHC plans should be, and that your LA must make decisions about provision when writing an EHC plan; it cannot pass this responsibility to someone else, such as a school. For example, the EHC plan should not say anything like “support to be determined by the setting”.

Our page on what an EHC plan should contain has more helpful information. You can also use IPSEA’s EHC plan checklist to check whether your son’s draft EHC plan complies with how the law says it must be set out.

Your LA must give you at least 15 days to write to it and make representations (tell the LA your views) about the contents of the EHC Plan and/or ask for a meeting. It is important to give your views so do make sure you do this in the way which feels comfortable for you. If you ask for a meeting once you receive a draft EHC plan, your LA must agree to meet with you. 

Before making your views known you should read through all of the professional advice which you will have received along with the draft EHC plan. Professionals may have identified the type and frequency of special educational provision your son requires which must be specified in Section F. 

When giving your LA your views (either in writing or at a meeting with the LA), you should ask that the draft EHC plan is changed in order to specify all of the special educational provision your son requires. Remind the LA officer that in law, Section F of the EHC plan must specify all of the special educational provision your son requires, even if this is being arranged by the school. 

Once the EHC plan is finalised, if you are still unhappy with the educational contents and/or the school you asked for has not been named in the final plan, you will have the right to appeal to the SEND Tribunal. The deadline for appealing is two months from the date of the final plan or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more on our pages about appealing to the SEND Tribunal.

An EHC plan is legally enforceable from the day it is finalised, even if you decide to appeal it, and the law says your LA (not your child’s school) must secure all of the special educational provision set out in section F. This is set out in section 42(2) CFA 2014.

Question 8

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…

Accepted Answer

...When we spoke to the EP, he told us that he thought our son was going to need more specialist teaching support than he could get in a mainstream school. We’ve combed through his report and he says nothing at all about the amount of help he thinks our son needs. Does this mean he’s changed his mind, or has he been ‘leaned on’?

Your question raises two important issues:

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

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.

If your LA wanted to say your son being educated in a mainstream setting would be ‘incompatible with the provision of efficient education for others’ then it would need to prove this is the case and also that there are no reasonable steps which can be taken to prevent this. Case law about the right to mainstream education has confirmed this is a very high threshold for your LA to meet.

Paragraph 9.92 of the Code provides some helpful examples of what ‘reasonable steps’ could be. We would recommend that all reasonable steps to be taken are set out in section F of the EHC plan as provision.

The law says you also have the right to request that the specific school you would like your son to attend is named in the final version of the EHC plan. Unless the school you want is wholly independent, the law says your LA must name it unless it can prove one of a small number of limited exceptions applies. You can find out more about this on our pages about choosing a school with an EHC plan.

Ultimately, once the EHC plan is finalised, if you are unhappy with the educational contents and/or the school named is not the one you asked for, you will have the right to appeal to the SEND Tribunal. The deadline for appealing is two months from the date of the final plan or one month from the date of your mediation certificate, whichever date falls the latest. You can find more information on our pages about appealing to the SEND Tribunal.

Question 9

My child had an EHC needs assessment carried out 5 months ago. Does this mean I cannot ask for another EHC needs assessment?

Accepted Answer

No, you can still ask and your LA must still consider your request.

If your LA has carried out an EHC needs assessment within the last 6 months, you can still make a new request for an EHC needs assessment (as can school or college instead).

When a new request for an EHC needs assessment is made within 6 months of an EHC needs assessment being carried out, the LA does not have to do what section 36(7) of the Children and Families Act (CFA) 2014 says. This means your LA will not need to write to give you a right to express views or submit evidence to the LA.

However the LA will still have to consider whether it may be necessary for special educational provision to be made for your child in accordance with an EHC plan and in considering this, your LA will need to consult with you (the law says this in section 36(3) and 36(4) CFA 2014).

If, after consulting with you, your LA considers that it is not necessary for special educational provision to be made via an EHC plan, it must tell you that it has decided not to secure an EHC needs assessment and why. This decision letter must also contain your right to appeal this decision.

The law says that a parent or young person may appeal to the SEND Tribunal whenever an LA has decided not to secure an EHC needs assessment, including in this situation. You will also have the right to mediation.

During an appeal, you will be able to submit your views, the views of your child and all the evidence you have, and this may help you successfully show that the legal test for when an EHC needs assessment must be carried out is met. You will also be able to express your views and submit evidence in advance of mediation if you choose to mediate, and again this may be helpful in showing your LA that the legal test has been met and the LA should change its mind as a result. You can find lots of information on appealing this decision in the SEND Tribunal and on mediation on our website.

Question 10

We have received our daughter’s draft EHC plan and we are not happy with the way her needs have been described in Section B. What can we do?

Accepted Answer

All it says is that she is a friendly and playful little girl (which we already knew) with ‘a general delay with her learning’. In fact, she has a specific problem with reading and writing. In other areas her development is fine. What can we do?

It is important to make sure section B of your child’s education, health and care (EHC) plan identifies and accurately describes all of her special educational needs (SEN). This is because, in section F of the EHC plan, your local authority (LA) must specify special educational provision to meet each and every one of the special educational needs identified in section B. This means that if section B fails to mention one of your child‘s needs, or doesn’t describe her needs properly, she may not get the special educational provision she requires. If you are not happy with your draft EHC plan, it is vital to check whether you need to request to change section F as well as section B.

After receiving your draft EHC plan, you will have at least 15 days to write to your LA and give your views about the contents of the EHC plan. You can use our template letter to help you with this if you wish. Alternatively, if you want to, you can ask for a meeting to discuss the draft (your LA must meet with you if you make a request for it to do so). There is more information on our pages about what to do when you receive the draft EHC plan.

You should first read through all of the professional advice which you will have received along with the draft EHC plan. They may contain more specific descriptions of your daughter’s learning difficulties than the one contained in Section B of the EHC plan.

If you agree with the descriptions of your daughter’s needs in the advice, then in your written representations and/or at your meeting with the LA, you should ask that the draft EHC plan is amended to include the specific descriptions of her needs as they appear in the professional advice. You are not looking for your LA to copy long paragraphs from the professional advice, but to include accurate descriptions of all identified SEN. You can remind your LA officer that in law, section B of the EHC plan must include all of the needs identified during your daughter’s EHC needs assessment.

There have been a large number of cases which have confirmed this and our page on what an EHC plan should contain has more information. You can also use IPSEA’s EHC plan checklist to check whether your draft EHC plan complies with how the law says it must be set out.

If you disagree with the way your daughter’s needs are described in the professional reports, you should consider flagging this up with the advice giver directly. Our page on what happens in an EHC needs assessment has information on what advice must be provided during an assessment. If you do not feel the EHC needs assessment was carried out properly, you can take action. Our page on taking action when an EHC needs assessment is not carried out properly contains more information on how to do this.

When you ask your LA to amend the EHC plan, give your LA officer a copy of what it is you want the EHC plan to say in section B (and section F, if necessary). Prepare this before your meeting if you are having one. Leave a copy with your LA officer and keep one for yourself.

If your LA finalises the EHC plan as it was originally drafted, without making your requested changes, you can appeal to the SEND Tribunal. The deadline for appealing is two months from the date of the final EHC plan or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more on our pages about appealing to the SEND Tribunal.

Question 11

Our LA has agreed to carry out an EHC needs assessment but when we asked for it to get advice from a local specialist service, it said no because there is a really long waiting list.

Accepted Answer

When a local authority (LA) agrees to carry out an education, health and care (EHC) needs assessment, it is agreeing to get advice and information from a set list of professionals. This is set out in Regulation 6(1) of The Special Educational Needs and Disability Regulations 2014 (The SEND Regulations 2014) and includes anyone the child’s parent/young person ‘reasonably requests’.

This means if you have asked your LA to get advice and information from a specialist service such as Child and Adolescent Mental Health Services (CAMHS), speech and language therapy service, occupational therapy service, physiotherapy service, or anyone else, then your LA is under a legal duty to ask the professional for advice as long as your request is reasonable.

When an LA asks a health service for advice and information as part of an EHC needs assessment, the health service must provide it within six weeks. This is set out in Regulation 8 of The SEND Regulations 2014. We are aware that LAs sometimes receive a response from the service to say there is a long waiting list, so they are unable to provide the advice. However, SEND Regulation 8 also sets out the very limited reasons why a delay could be allowed, and a long waiting list is not one of them.

Your local health authority and LA are expected to work together to make sure that advice requested for an EHC needs assessment can be provided on time. However, your LA has the overall legal duty to meet all the deadlines during the EHC needs assessment process and issue a final EHC plan on time. If a professional/service your LA has contacted is genuinely unable to provide their advice on time, your LA should consider alternative ways of getting the advice (such as getting an independent report).

SEND Regulation 6(1) says the information and advice provided must be about your child’s special educational needs (SEN), the special educational provision they need and the outcomes it is hoped they will achieve. If your LA receives a response stating your child is “not known to this service”, or similar, then it will need to go back to the professional/service concerned to make sure they provide proper advice about your child’s needs, provision and outcomes.

It is very important that the EHC needs assessment is carried out properly, because if all of your child’s needs are not fully identified at this stage, the LA may decide (wrongly) that an EHC plan is not necessary, or it might issue an EHC plan which does not fully meet your child’s needs. If your LA is refusing to get the information and advice you have requested, or is not carrying out the EHC needs assessment properly in any other way, you should write to the LA using our template letter.

If the LA continues to say no to seeking advice from CAMHS or another professional you have asked them to obtain advice from you should consider taking action. Find out more about taking action when things go wrong with a local authority.

Question 12

Is Covid-19 still affecting the EHC needs assessment process?

Accepted Answer

During the Coronavirus pandemic, there were relaxations to the deadlines which apply to local authorities (“LA”) throughout the EHC needs assessment process. However, these only applied from 1 May 2020 to 24 September 2020.

LA’s can no longer use Covid-19 as a reason for breaching these statutory deadlines.

Question 13

We want to make a request for an EHC needs assessment for our child. They go to a school in a different LA. To which LA should we make the request – our home LA or the LA of the school?

Accepted Answer

Requests for EHC needs assessments should be made to the local authority (LA) your child lives in, even if they go to school in a different LA. If your home LA decides it will issue your child with an EHC plan, the home LA (not the school LA) will be responsible for securing the special educational provision in it.

Question 14

Can a child who is below compulsory school age have an EHC needs assessment?

Accepted Answer

Yes: the legal rights and duties set out in Part 3 of the Children and Families Act (CFA) 2014 apply to children and young people aged from 0-25 who have, or may have, special educational needs (SEN), so this includes under 5s / preschool / nursery children.

We have a definition of compulsory school age on our website.

Question 15

Are the rules and processes of an EHC needs assessment different if the child is below compulsory school age (under 5s / preschool / nursery children)?

Accepted Answer

The process for an education, health and care (EHC) needs assessment is exactly the same whatever the age of the child or young person (aged 0-25).

Parents/carers can request an EHC needs assessment for a child who is below compulsory school age and the legal test your local authority (LA) must apply when considering your request is set out in section 36(8) of the Children and Families Act (CFA) 2014 . It says that your LA must carry out an assessment if your child:

These are the only questions your LA should be asking itself when it receives an EHC needs assessment request; LAs are not allowed to have extra conditions or policies which do not appear in the law.

Sometimes parents come to our helplines because they think that their child needs to have been in school or nursery for a certain amount of time before an EHC needs assessment can be requested. This is not true.

The SEND Code of Practice 2015 says that ‘For children within one to two years of starting compulsory education who are likely to need an EHC plan in primary school, it will often be appropriate to prepare an EHC plan during this period so the EHC plan is in place to support the transition to primary school’ (paragraph 9.148). This means that if your child is likely to need an EHC plan when they get to primary school, one should be prepared for them before they start.

The legal definition of special educational needs is slightly different for children aged under compulsory school age. The LA must think about whether your child is likely to have a learning difficulty or disability when they reach compulsory school age, or whether they would be likely to have one without special educational provision being put in place for them. This is set out in section 20 of the Children and Families Act (CFA) 2014.

The definition of special educational provision is also slightly different for those aged under 2 – it means educational provision of any kind (so it’s not compared to what might be available in other settings). This is set out in section 21(2) CFA 2014.

It is important to know that health care and social care provision which “educates or trains” is capable of being special educational provision. This can include things like speech and language therapy and occupational therapy.

If you would like to request an EHC needs assessment for your child, we have a template letter which you can use to help you do this.

Question 16

My LA is saying that my child doesn’t need an EHC needs assessment, because the school should be relying on existing SEN funding streams, but this is not happening in practice. Is this lawful?

Accepted Answer

The legal test that your local authority (LA) must apply when considering whether to carry out an education, health and care (EHC) needs assessment is set out in section 36(8) of the Children and Families Act (CFA) 2014. It says that your LA must carry out an assessment if your child or young person:

has or may have special educational needs (SEN), and
it may be necessary for them to have an EHC plan.

These are the only questions your LA should be asking itself when it receives an EHC needs assessment request; LAs are not allowed to have extra conditions or policies which do not appear in the law. If it appears that SEN Support is not enough for your child, then an EHC needs assessment is likely necessary, but your LA cannot require them to have been in receipt of SEN Support for any period of time. This means you can still request an EHC needs assessment if SEN Support is not being provided, and your LA must consider this request.

The school’s own SEN funding

Your LA could lawfully refuse an EHC needs assessment if it is sure your child’s school/college can provide all the support they need at SEN Support level.

However, if you can show that the school/college cannot or will not do this, that could mean it may be necessary for provision to be made through an EHC plan, to make sure they do get all of the support they need.

Top-up funding from the LA

As part of their local policies, some LAs have high-needs or top-up funding schemes. where schools and colleges can apply for extra funding for children and young people who have SEN, but do not have EHC plans. These schemes are “non-statutory”, which means they do not have any legal powers.

If your child has received this sort of funding, that could mean the legal test for an EHC needs assessment is met. This is because by awarding this extra funding, your LA is accepting they have SEN, and that they may need more support than the school/college can provide at SEN Support level. If the EHC needs assessment confirms your child does need extra support from your LA, an EHC plan must be issued.

EHC needs assessments and EHC plans carry important legal rights for children and young people with SEN, under the CFA 2014. These include rights to:

None of these legal rights apply if top-up funding is provided through a local, non-statutory funding scheme rather than through an EHC plan.

Therefore, if your LA and/or the school/college is suggesting that you apply for local top-up funding, you should consider requesting an EHC needs assessment as well or instead. We have a template letter you can use to help you do this.

For more information, you may find it helpful to read our pages on EHC needs assessments.

Question 17

Does my child’s school have to spend £6,000 on provision before we can request an EHC needs assessment?

Accepted Answer

No. Your local authority (LA) must carry out an EHC needs assessment if:

This is set out in section 36 (8) Children and Families Act 2014

This legal ‘test’ sets quite a low threshold, however many LAs have policies which set the threshold higher than the law. Common examples include policies which require a report from an educational psychologist or other professional, or for the parent or school to show that a particular sum of money (often £6,000) has already been spent on SEN Support. These are unlawful requirements.

Schools do not often know the law, so often believe the LA’s policy ‘trumps’ when it does not.

You can request an EHC needs assessment yourself and you should do so if you feel your child needs one. We have a template letter which you can use to help you do this. Our page about asking for an EHC needs assessment has further information which you should find helpful. Once you send in your request the LA must respond to it within six weeks. This is set out in Regulation 5(1) of The Special Educational Needs and Disability Regulations 2014.

If your LA refuses to assess, it must explain your right to appeal to the SEND Tribunal in the refusal letter. Refusal to assess appeals are usually decided on the paperwork (if you agree) so you do not have to go to a hearing. The SEND Tribunal must decide the case based on the law and the evidence put before it, not what the LA’s policy says. You must consider mediation and get a mediation certificate before you can appeal to the SEND Tribunal, but you do not have to take part in mediation if you do not wish to. The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more on our pages about appealing to the SEND Tribunal.

Refusal to assess appeals are one of the most common types of appeal made to the SEND Tribunal and they have a high success rate in favour of parents and young people.