CLICK TO DOWNLOAD: Request an EHC needs assessment for a child or young person in custody (template letter 24)

You can use this letter to request an education, health and care (EHC) needs assessment for a child and, in some cases, a young person who is in custody (which is also called being in penal detention).  

The law is different for these children and young people, compared to those living in the community who are not detained in this way. This type of request can be made to assess what their education, health and care needs will be when they are released from custody (known as their “post detention needs”) and the provision (or support) they require to meet those needs.

This template letter is for general advice purposes and will need to be tailored to your own individual circumstances. Please read all the information on this page and, if possible, we recommend you take advice on using this letter.

Further information and resources on education and EHC plans for children and young people in penal detention can be found in this guide we've jointly published with the Howard League for Penal Reform.

Who can make the request?

An EHC needs assessment for a child or young person in custody can only be requested by:

• a parent if the child concerned is of compulsory school age (note that in special educational needs law the definition of a parent is broad)
• a young person if they are aged 16 (and no longer of compulsory school age) to 18 and detained in the youth secure estate, or
• a person in charge of the establishment where the child or young person is detained.

While only the above people have a right to make this request, anyone can bring a child or young person to the local authority’s (LA) attention as someone who has or may have special educational needs. The LA would then have to decide whether to carry out an EHC needs assessment.

Who should I write to?

To make this request, you should write to the most senior person, usually called the Director of Children’s Services, at the child or young person’s “home” LA authority (the LA where the child or young person normally lived before going into custody, or, if they were a looked after child before going into custody, the LA looking after them). You can find their contact details on the  Association of Directors of Children’s Services website. Your LA may have a specific address to which it would like EHC needs assessment requests to be sent, if it does send your request there too. You should be able to find the postal and email addresses for this in your LA’s Local Offer.

We are aware of LAs streamlining their EHC needs assessment processes using a variety of methods, including digital platforms (sometimes known as ‘hubs’) and specific forms. Whilst LAs can use these options, it is important that you are aware there is no particular form, format or method that is required in law to make an EHC needs assessment request valid. A request cannot be rejected on the basis that a specific method or form has not been used, nor can an LA insist that someone with a right to make a request speaks with either the relevant educational setting or other services before doing so.

When should a local authority carry out an EHC needs assessment for a child or young person in custody?

The LA must carry out an EHC needs assessment when:

• the detained child or young person has or may have special educational needs, and
• they may need special educational provision to be made through an EHC plan on their release from custody/detention.

This test is set out in the law (section 71(9) of the Children and Families Act 2014). It is a low threshold – the LA does not have to be certain that your child or young person has special educational needs and will need an EHC plan when they are released at this stage, only that they might.

You can find out more about the process the LA must follow when deciding whether this test is met and the legal requirements of an EHC needs assessment in “Education inside penal detention for children in England: An overview”.

When will I hear back?

The LA must respond within 6 weeks of receiving your request. This is set out in law (regulation 5 of The Special Educational Needs and Disability (Detained Persons) Regulations 2015). The only exceptions are if it would be impractical for the LA to meet the deadline because 

• the LA asks for advice about the request from a school or college in the week before it closes for at least four weeks, or while it is closed for at least four weeks up to the week before it re-opens (for example, if the LA asks the school or college for advice in the week before its summer holidays start or during the summer holidays until a week before they end), or
• during the six week period, exceptional personal circumstances affect the child’s parent, or the young person themselves, or the child’s parent is away from the area for at least four weeks. 

The LA will only be able to rely on one of these exceptions if it can show that making the decision on time would be impractical.  Your LA must still notify you of its decision as soon as possible. 

Remember to keep a copy of any letter or email you send and make a note of the six week deadline for your LA’s reply. If you don’t get a reply within 6 weeks you can take action.

What will the LA’s response say?

If your LA agrees to carry out an EHC needs assessment, various people will need to be asked for advice. This is set out in law (regulation 6 of The Special Educational Needs and Disability (Detained Persons) Regulations 2015).

If your LA refuses to carry out an EHC needs assessment, the refusal letter must give you certain information, including your (as the child’s parent or the young person) right to appeal the decision to the SEND Tribunal and details of an independent mediation service for you to contact. 

The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever is the later. There are specific appeal forms for children and young people in custody. You need to use form SEND28 for a child and form SEND28A for a young person under 18. Limited legal aid is available for appeals, see our information out about this and other sources of support.

For more detail on the law that applies to children and young people in custody, please see these downloadable resources. If you need further advice, you can book an appointment to speak with us or email [email protected].