This case concerned a refusal to assess of a child who was due to move from primary to secondary school. It was heard under the Education Act 1996, which related to Statements, but remains relevant under the Children and Families Act 2014 as s. 36(8) uses the same wording of whether it may be “necessary” for provision to be made in accordance with an EHC plan.

The First-tier Tribunal found in favour of the parent and ordered the local authority (“LA”) to carry out an assessment, taking into account the fact the child was due to move to secondary school. The LA appealed.

The Upper Tribunal confirmed the statutory test should be applied, i.e. the test of whether it may be necessary for there to be a Statement (or an EHC plan) and explained the term thus:

“Necessary sets a standard that is somewhere between indispensable and useful or reasonable. I am not going to define it more precisely. It is a word in general usage and it is that usage that the SEND Tribunal must apply.”

The Upper Tribunal also considered whether or not the First-tier Tribunal had been right to look to the future transfer from primary to secondary. The Upper Tribunal followed the reasoning in Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345 (albeit that the Wilkin case related to a child who was already Statemented, rather than being assessed for one), because an analysis of the language alone showed that the same approach was appropriate:

“The statutory test inevitably directs attention to something that will happen after the assessment has been made. The assessment is made for a purpose. That purpose involves identifying provision necessary to meet a child’s needs. 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.”

This might also be a useful case to use in a situation where a child or young person is due to transfer from school to college in the near future, and you may wish to argue that an EHC plan will be needed in college, where support for SEN can be arranged quite differently from within schools.

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

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