This case considered the statutory language of s. 36 Children and Families Act 2014 and the two limbs of the test involved in determining whether a local authority (“LA”) needed to carry out the assessment. S. 36(8) states that a LA must carry out an EHC needs assessment if they are of the opinion that (a) the child or young person has or may have SEN and (b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

Judge Jacobs described the exercise which the LA must carry out in this way:

“At the initial stage, when the authority or the SEND Tribunal is deciding whether an assessment should be secured, two different questions arise. One is a question of present fact: ‘has’ the young person a learning difficulty or disability? The other is a prediction: is it one that ‘calls for’ special educational provision (section 20(1)) or for which such provision ‘may be necessary’ (section 36(3))? Those different expressions are both framed according to the stage of the process… To put it loosely and without intending to rewrite or gloss the language of the legislation, the issue at the initial stage is a provisional and predictive one; it is only when an assessment has been made that a definitive decision has to be made.” (Emphasis added.)

This demonstrates the low bar which needs to be met when applying for an EHC needs assessment. It is not necessary to show for definite that the child or young person will need support through an EHC plan, or even that they definitely have special educational needs – the question is just whether support through an EHC plan may be necessary. The question is whether it may be the case that the school or other setting cannot meet the child or young person’s needs without an EHC plan being put in place.

The full case report for Cambridgeshire County Council v FL-J [2016] UKUT 0225 (AAC) is available online.

For more information see our sections on what your school should do to help, EHC needs assessments and appealing against a refusal to assess.