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

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:

• 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.

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.