When should a local authority carry out an EHC needs assessment?

If a local authority (LA) is requested to carry out an EHC needs assessment by a parent, young person, school or college, it must consider:

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

If the answer to both of these questions is yes, the LA must carry out an EHC needs assessment.

This test is set out in the law (section 36(8) of the Children and Families Act 2014).

The SEN and Disability Code of Practice 2015 (the Code), which is statutory guidance issued by the government, contains further detail on what LAs should consider. At paragraph 9.14 the Code states that “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”. The Code says LAs should pay particular attention to:

• evidence of your child's academic attainment (or developmental milestones in younger children) and rate of progress
• information about the nature, extent and context of your child's SEN
• evidence of the action already taken by the school or other setting to support your child
• evidence that where progress has been made, it has only been as the result of lots of intervention and support over and above what is usually provided for children of the same age, and
• evidence of your child’s physical, emotional and social development and health needs, taking into account relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies.

These are important considerations for your LA to take into account when deciding whether the legal test for carrying out an EHC needs assessment is met, but it is important for you to know that they are not legal requirements and they do not form part of the legal test itself. 

What happens if my LA asks for more than this? 

Despite the relatively low threshold of the legal test for assessment, many LAs have policies or criteria which set the threshold higher than the law. Common examples include policies which require:

• proof that the school or college has already spent a certain amount of money (often £6,000 per year) supporting your child
• evidence that your child is below a certain percentile or is a certain number of years behind academically
• evidence of a certain number of terms SEN support or
• evidence of prior involvement from outside specialists such as an educational psychologist or speech therapist

These things are not included in the legal test, so it would be unlawful for your LA to refuse your EHC needs assessment request because you have not included them, or tell you that it will not consider a request unless they are submitted with it. This is because your LA must make a decision using only the legal test set out above. 

If your LA refuses to carry out an EHC needs assessment, you can appeal to the SEND Tribunal  (there is more information on this below). The SEND Tribunal will only apply the legal test and not your LA’s own policy.

When should I request an education, health and care (EHC) needs assessment?

If your child has (or you as a young person have) a learning difficulty or a disability which is holding them/you back at school or college, and you believe that the school or college may not be able to provide all of the help and support which is needed, then you should make a request to the LA for an EHC needs assessment. You can do this at any time.

You can only ask for an EHC needs assessment if you/your child has, or may have, SEN – it does not apply where there are only health or social care needs. Remember that under the law, a child has SEN if they have a learning difficulty or a disability which calls for special educational provision. You can read more about the definition of SEN on our page about SEN.

For children of compulsory school age or younger, you as their parent or carer make the request. This includes children from age 0 to 5, where you should make a request if you believe that your child will need extra help at nursery or when they start school.

If you are a young person (over compulsory school age and up to 25), you can make the request yourself. If a young person is not able to understand, remember or communicate decisions about the educational support they need, their parent or carer can make the request on their behalf. You may find it helpful to read our pages on how the law applies to young people.

Should I speak to the school or college first?

Yes – it will be helpful to speak to the school or college about your worries before writing to the LA. You should speak to the relevant class or subject teacher, the school SENCO or the person at the college responsible for SEN provision, and the head teacher or the principal.

Sometimes the school or college might tell you that your child would not qualify for an EHC needs assessment or an EHC plan. However, they may not know what the law actually says. They may have been told by the LA that the local policy must be followed or that it ‘trumps’ the law when it does not. You can still apply for an EHC needs assessment even if your child’s school does not agree that it is needed.

What if the school or college offers to write on my behalf?

Anyone acting on behalf of a school or post-16 institution is able to write and request an EHC needs assessment. However, if you make the request yourself you can be sure that the request has definitely been made. If the school or college is willing, you could ask them to write a letter which supports your own application. If you are told the request will ‘look better’ if the school/college makes it on your behalf, you should know that the law treats requests made by parents, young people and education settings in the same way. The same legal test applies regardless of who makes the request for assessment.

How should I make the request?

You should make a written request and keep a copy of your letter. Your letter should set out:

• why you believe your child has or may have special educational needs and
• why you believe they may need special educational provision to be made through an EHC Plan.

In other words, you need to explain why you believe the legal test for assessment is met. You can use IPSEA’s template letter for your request. You should send any supporting evidence you have with your letter.

We also have template letters which you can use to ask for information from the school and LA which may help you to show that the legal test is met. 

We are aware of LAs streamlining their EHC needs assessment processes using a variety of methods, including digital platforms (sometimes known as ‘hubs’) and specific forms. Whilst LAs can use these options, it is important that you are aware there is no particular form, format or method that is required in law to make your EHC needs assessment request valid. A request cannot be rejected on the basis that a specific method or form has not been used, nor can an LA insist that you speak with either the relevant educational setting or other services before making a request.

Who should I write to?

You should write to your home LA (even if your child goes to school in a different LA). You can find details of your LA online. Your LA’s website should tell you how a request can be made. If it is not clear, you should write to the most senior person at the LA, usually called the Director of Education or Head/Director of Children’s Services. You can find out the name and contact details of the most senior officer on the Association of Directors of Children’s Services website, your LA’s website, by calling the LA or by asking at your child’s school or college.

When should I hear back?

The LA must reply within six weeks to let you know whether it agrees to carry out an EHC needs assessment. This is set out in Regulation 5(1) of The Special Educational Needs and Disability Regulations 2014. Your LA should always reply to you as a parent or young person – even where the request was made by the school or college.

You should make a note of the six week deadline for your LA’s reply. If your LA does not respond in time, you can take action. Please see our information on what you can do if your LA does not respond within 6 weeks.

What will the LA’s response say?

If your LA agrees to carry out an assessment, various people will need to be asked for advice. Our page on what an EHC assessment involves has more information about this.

If your LA refuses to carry out an assessment, the refusal letter must give you certain information,  including your right to appeal the decision to the SEND Tribunal and details of an independent mediation service for you to contact. 

The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever is the later. Our pages on how to appeal give you lots of helpful information.

Refusal to assess appeals are one of the most common appeals made to the SEND Tribunal and they have a high success rate in favour of parents and young people. The SEND Tribunal must decide the case based on the law and the evidence put before it; not what your LA’s policy says.

If you haven’t been able to find the answer to your question on this page, you may find it helpful to read our FAQs.