Case overview

The SEND Tribunal ordered a local authority (LA) to carry out a statutory assessment (now known as an education, health and care (EHC) needs assessment) for a child with special educational needs (SEN). In making its decision, the SEND Tribunal had considered that the child was due to move from primary to secondary school. The LA disagreed with the SEND Tribunal’s reasoning and appealed to the Upper Tribunal.

The Upper Tribunal confirmed the SEND Tribunal had applied the correct “legal test”, which was to consider whether it may be necessary for the child to have an Statement of Special Educational Needs (this was an earlier version of an education, health and care (EHC) plan ).

It confirmed the SEND Tribunal had also been correct to consider the upcoming move to secondary school. The judge said “The assessment cannot realistically limit itself to the immediate present. When there will be a change of circumstances in the near future, it is impossible to ignore that future.”

What does this mean?

Whilst Statements have been replaced with EHC plans since this case, the principle remains the same, meaning this case is still relevant. It confirms LAs must apply the correct “ legal test” when deciding whether to carry out an EHC needs assessment. Section 36(8) of the Children and Families Act 2014 says that an LA must carry out an assessment where the child or young person has or may have SEN, and may require special educational provision to be made through an EHC plan.

It also confirms LAs (and the SEND Tribunal in place of the LA) are to consider upcoming changes when making this decision, such as the move to a new phase of education (for example moving from early years to primary school, from primary to secondary school, or from secondary to post-16).

This could be a useful case to use if your child or young person is due to change phases of education in the near future. You may wish to argue that an EHC plan may be needed in the new setting where support for SEN can be arranged quite differently to how it is being arranged in the current setting.

The full case report for Buckinghamshire County Council v HW (SEN) [2013] UKUT 0470 (AAC) can be viewed online.

For more information you can see our pages on what your school should do to help; EHC needs assessments; and appealing against a refusal to carry out an EHC needs assessment.