My LA is saying that my child doesn’t need an EHC needs assessment, because the school should be relying on existing SEN funding streams, but this is not happening in practice. Is this lawful?

The legal test that your local authority (LA) must apply when considering whether to carry out an education, health and care (EHC) needs assessment 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 or young person:

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. If it appears that SEN Support is not enough for your child, then an EHC needs assessment is likely necessary, but your LA cannot require them to have been in receipt of SEN Support for any period of time. This means you can still request an EHC needs assessment if SEN Support is not being provided, and your LA must consider this request.

The school’s own SEN funding

Your LA could lawfully refuse an EHC needs assessment if it is sure your child’s school/college can provide all the support they need at SEN Support level.

However, if you can show that the school/college cannot or will not do this, that could mean it may be necessary for provision to be made through an EHC plan, to make sure they do get all of the support they need.

Top-up funding from the LA

As part of their local policies, some LAs have high-needs or top-up funding schemes. where schools and colleges can apply for extra funding for children and young people who have SEN, but do not have EHC plans. These schemes are “non-statutory”, which means they do not have any legal powers.

If your child has received this sort of funding, that could mean the legal test for an EHC needs assessment is met. This is because by awarding this extra funding, your LA is accepting they have SEN, and that they may need more support than the school/college can provide at SEN Support level. If the EHC needs assessment confirms your child does need extra support from your LA, an EHC plan must be issued.

EHC needs assessments and EHC plans carry important legal rights for children and young people with SEN, under the CFA 2014. These include rights to:

a statutory assessment of their needs
a legally enforceable plan which sets out the provision they must get, and which cannot be changed or taken away unless the proper legal process is followed
choose which school or college is named in the plan (subject to certain conditions)
have an annual review, and
appeal to the SEND Tribunal in the event of certain disagreements.

None of these legal rights apply if top-up funding is provided through a local, non-statutory funding scheme rather than through an EHC plan.

Therefore, if your LA and/or the school/college is suggesting that you apply for local top-up funding, you should consider requesting an EHC needs assessment as well or instead. We have a template letter you can use to help you do this.

For more information, you may find it helpful to read our pages on EHC needs assessments.